On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Koblitz.
R.E.B. appeals from a May 26, 2010 decision of the State Parole Board (Board) that denied his parole request and established a twenty-month future eligibility term (FET). We affirm.
On March 14, 2003, following a trial by jury, R.E.B. was sentenced to a ten-year term of imprisonment on a charge of first-degree aggravated sexual assault, and a concurrent five-year term of imprisonment on a charge of second-degree endangering the welfare of a child. By its verdict, the jury found R.E.B. guilty of engaging in sexual intercourse with his daughter, J.B. On February 6, 2006, R.E.B. was granted parole.
While R.E.B. was free on parole, his conviction was overturned, and he was granted a new trial. State v. R.E.B., 385 N.J. Super. 72, 81 (App. Div. 2006). The retrial commenced before a different judge in April 2008, and R.E.B. was again convicted of both charges. On July 18, 2010, the judge sentenced him to a ten-year term of imprisonment on the aggravated sexual assault conviction, and to a consecutive five-year term on the endangering charge, for a total custodial term of fifteen years.
On appeal, we affirmed R.E.B.'s conviction; and rejected his claim that the lengthier sentence imposed after the second trial was impermissible. State v. R.E.B., No. A-2329-08 (App. Div. April 26, 2010) (slip op. at 26-27), certif. denied, 203 N.J. 95 (2010). Following his July 18, 2008 conviction, after having served an additional twenty months of imprisonment, R.E.B. became eligible for parole on March 10, 2010. He received an initial parole hearing before a hearing officer, who referred the matter to a two-member panel, in keeping with N.J.A.C. 10A:71-3.15(b), which specifies that inmates serving a sentence for aggravated sexual assault, or second-degree endangering the welfare of a child, must be referred for a hearing before a two-member panel.
On February 25, 2010, the two-member panel denied parole and established a twenty-month FET. The two-member panel based its decision on the following factors: R.E.B.'s prior incarceration did not deter criminal behavior; and R.E.B. showed "insufficient problem resolution." As to the latter, the panel found a lack of insight by R.E.B. into his criminal behavior, a continuing denial that he had sexually assaulted his daughter, and a failure to sufficiently address his substance abuse problem. In denying parole, the panel also commented that R.E.B. "continues to blame the victim for false accusations, however, he sees no issues with himself and persists in denial of any personal or addictive issues although his behavior indicates otherwise." The panel also found that R.E.B. "has no empathy for the victim's emotional state and instead indicates, 'she should know about this, she was molested previously.'" The panel based its findings on its interview of R.E.B., documentation in the case file and confidential psychological assessments. As mitigating factors, the panel noted that R.E.B. had remained infraction-free and had received average to above-average institutional reports.
On March 5, 2010, R.E.B. appealed the two-member panel's adverse decision to the full Board, which on May 26, 2010, affirmed the denial of parole and the imposition of a twenty-month FET. The Board summarized R.E.B.'s contentions, noting his claim that he had been unable to participate in programming due to a medical condition, dyslexia, that prevented him from reading the program materials; his "limited criminal history"; and his "positive work and institutional history." The Board also noted R.E.B.'s community ties and prospective employment opportunities.
On appeal, R.E.B. presents a single issue for our consideration: the denial of parole constitutes an abuse of discretion as the record does not support the Board's finding that he would commit a new crime if released on parole. In particular, he maintains that because the Board granted him parole in February 2006, and he had maintained an unblemished institutional record thereafter, the Board was barred from reaching a contrary result in 2010.
Our scope of review is a narrow one, and we review R.E.B.'s contentions in accordance with that standard. We must affirm unless the Board's decision was unreasonable, unsupported by credible evidence in the record or contrary to law. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172 (2001) (Trantino VI). In conducting this limited review, we must accord the Board's decision a presumption of validity; and the burden is on the challenging party to show that the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.), certif. denied, 135 N.J. 469 (1993). Moreover, because the Board's decisions are to be considered highly "'individualized discretionary appraisals,'" the Board is vested with "'broad but not unlimited ...