July 9, 2012
ROBERT RELDAN, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: June 12, 2012
Before Judges Axelrad and Parrillo.
Appellant Robert Reldan appeals from the June 29, 2011 final decision of the New Jersey State Parole Board (the Board) that denied him parole and imposed a 240-month future eligibility term (FET). We affirm the denial of parole, but reverse the FET and remand to the Board to re-determine the length of the FET.
On October 17, 1979, a jury found appellant guilty of second-degree murder of S.H. and first-degree murder of S.R. In State v. Reldan, 185 N.J. Super. 494 (App. Div.), certif. denied, 91 N.J. 543 (1982), we described the murders as follows:
On October 27, 1975 the body of S.H. was discovered in a wooded area . . . about 15 miles removed from her residence. The body was nude, lying face down and covered with sticks and leaves. It was decomposed, with the skeleton exposed in the head and neck area. The face was mummified. Due to the state of decomposition and the action of animals, the buttocks and sexual organs were missing. A female stocking or pantyhose was wrapped around the neck in the area of the fourth and fifth cervical vertebrae. A stick was entwined in the stocking, apparently to serve as a garrote.
Dr. Frederick Zugibe, [the medical examiner] . . . found "fractures of thyroid cartilage and fracture of cornu of the hyoid bone of the neck." [He] determined the cause of death to be "asphyxiation due to ligature strangulation." At trial he opined that death was produced "by a rather unique technique because in addition to the garrote, which was the piece of wood in between the knot that could be twisted, [a] hand would have to be compressing against the neck at the same time." He explained that a fracture of the hyoid bone was common in manual strangulations and such a fracture indicated use of a hand as well as the garrote. The doctor estimated that death occurred about three weeks before the date the body was found.
[S.R.'s] body was found on October 28, 1975 in Tallman State Park, Rockland County, New York, a point 12.9 miles from the place where S.H.'s body was discovered.
S.R. was found lying face up, nude, with a pantyhose ligature about her neck. There was evidence indicating that the body had been moved to this location after death. Dr. Zugibe . . . estimated the time of death as about two weeks prior to discovery of the body [and] . . . determined that the cause of death was asphyxiation due to ligature strangulation. There was, as in the case of S.H., a fracture of the hyoid bone and the doctor concluded that this resulted from the use of manual force to the throat accompanied by use of the stocking ligature. There was evidence of forced sexual penetration.
With respect to both victims Dr. Zugibe was of the opinion that the force used to turn the ligature was applied from the back of the neck and that the techniques used to fracture the hyoid bone were the same. It was his view that in both cases death was caused by ligature, assisted by the hand of the murderer. [Id. at 496-98.]
We overturned the convictions on appeal due to errors in the admission of other crimes evidence, id. at 504-05, but at retrial on March 13, 1986, appellant was again found guilty of both murders. State v. Reldan, No. A-4588-85 (App. Div. May 15, 1989), certif. denied, 121 N.J. 598 (1990). He was sentenced on June 23, 1989, to thirty years in prison on one count and to a consecutive life sentence on the other count.
Appellant was charged with four counts of advocate homicidal death and one count of conspiracy to commit murder resulting from his request, while he was an inmate at Rahway State Prison in December l976, to another inmate and undercover officer to rob and murder his wealthy aunt and her male companion. He was convicted on all counts on April 26, 1978, and sentenced two months later to concurrent twenty to twenty-five year terms on each count to run consecutive to the term he was serving at the time.
Appellant escaped during his murder trial in October 1979, spraying the officer with tear gas, carjacking an automobile, and robbing a victim of her purse and other items. On December 4, 1980, he was convicted by a jury of escape, possession of an implement of escape, aggravated assault on a police officer, robbery, and theft. The following month he was sentenced to an aggregate term of twenty-two years to run consecutive to the term he was serving at the time.
On April l9, 198l, while incarcerated at New Jersey State Prison, appellant complained of a stomach injury and was transported to a hospital in Trenton. Police arrested his girlfriend there with bags containing weapons and disguises that she had obtained, at appellant's direction, from a specified location. On September 28, 1983, appellant was convicted by a jury of conspiracy to commit escape, criminal attempt to commit escape, possession of a prohibited weapon, possession of a weapon for an unlawful purpose, criminal attempt to procure or possess escape implements, and a convicted person possessing a weapon. In July l987, following our reversal of the sentence, appellant was re-sentenced to a term of fifteen years, with a mandatory parole disqualifier of seven years and six months on the conspiracy to commit escape, and to a concurrent five-year term on the weapons charge, consecutive to the sentence he was presently serving.
Appellant first became eligible for parole on July 8, 2008, after serving about thirty years of his sentence. On November 14, 2008, appellant initially appeared before a hearing officer who referred the matter to a Board panel for a hearing. On February 6 and 20, 2009, a two-member Board panel met with appellant and conducted interviews. On April l, 2009, the two-member panel rendered its written decision based on the interviews, documentation in his case file, confidential material, and professional reports. It denied parole, finding a substantial likelihood existed that appellant would commit a new crime if released on parole at that time,*fn1 and referred appellant's case to a three-member Board panel for the establishment of a FET outside of the administrative guidelines. See N.J.A.C. 10A:71-3.21(a)l, -3.21(d)l.
The panel considered as mitigating factors: participation in programs specific to behavior; participation in institutional programs; average to above average institutional reports; and restoration of commutation time.
The panel considered these aggravating factors: extensive and repetitive prior record; nature of the criminal record being increasingly more serious (double homicide); presently incarcerated for multi-crime convictions; prior opportunities on parole were revoked for the commission of new offenses; prior opportunities on probation and parole failed to deter criminal behavior; prior opportunities on probation and parole were violated; prior incarcerations did not deter criminal behavior; commission of numerous, persistent, and serious institutional infractions, resulting in loss of commutation time, confinement in detention, and administrative segregation (more than twenty in all, with the last infraction having occurred on April 4, 2004); insufficient problem resolution, marked by lack of insight into criminal behavior, denial of crime (advocate homicidal death), and minimization of conduct; and commission of a crime while incarcerated and while on parole.
As a supplement to appellant's insufficient problem resolution, the panel found: (1) appellant "made inadequate progress in dealing with issues that underlay a troubling pathology that led to his crimes"; (2) his "expressions of remorse were superficial at best" as he "continues to focus nearly exclusively on his own pain and the pain that he may have caused within his own personal sphere"; (3) his description of his criminal history and current crimes "were at stark variance with the official record and testimony offered in his several trials," demonstrating a "willingness to admit or deny or prevaricate based on whatever benefits him at the moment" and "raises the prospect for further criminal activity if released on parole"; (4) appellant committed property crimes and attendant extreme violence when he was "quite solvent" so his newly-found wealth would not "serve to insulate the public from his deeply seated pathology"; (5) he "has a history of manipulating people and the system," resulting in approval for parole on two occasions, during which he committed violent offenses, significantly negating appellant's occasional "mixed psychological evaluations or favorable treatment within the prison setting"; and (6) based on appellant's history, his "model prisoner" behavior is replete with self-centered manipulation, targeted towards seeking parole. In contrast, the panel regarded appellant as an "anti-social career criminal."
Appellant and his counsel submitted written statements to the three-member panel, providing information and submitting arguments for reconsideration and mitigation. On October 28, 2009, the three-member panel convened and issued its checklist decision denying appellant parole and imposing a 240-month FET, articulating the identical factors relied upon by the two-member panel. On October 8, 2010, a year later, the three-member panel issued a thirty-two page written opinion. In essence, the panel elaborated on the aggravating factors found by the two-member panel, explaining why substantial weight should be given to many of them. For example, the three-member panel noted that appellant was incarcerated on at least seven separate occasions, which failed to deter his future criminal behavior, and his institutional disciplinary infractions included eight asterisk offenses and twenty-two non-asterisk offenses. The panel referenced appellant's explanations of his crimes in his case file and during his two extensive interviews in February 2009, concluding, in part, with examples, that he continued to make "little distinction . . . between things stolen and lives taken"; although he did not deny killing either S.H. or S.R., his "preoccupation with alleged defects in the prosecution's case is alarmingly misplaced when viewed against the horror of [his] admitted crimes . . . [and] the ongoing self-centered nature of [his] current thinking bespeaks a remorseless, selfish, dangerous, criminal mindset"; and "thirty-one years into [his] incarceration [he] attempt[s] to displace a significant portion of the guilt for [his] crimes" by "choos[ing] to take a stance placing [himself] a victim of circumstance . . . in an attempt to place [himself] in a more favorable light and distance [himself] from [his] true violent actions."
The three-member panel found the factors supporting the denial of parole enumerated in N.J.A.C. 10A:71-3.11 "collectively" were of such a serious nature as to make the "presumptive" twenty-seven month FET established by N.J.A.C. 10A:71-3.21(d) "clearly inappropriate." The panel opined that setting any less a term "would be wholly inconsistent with the conclusion that, after thirty (30) years of incarceration, [appellant has] not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity. In particular, the panel expressed its concern about comments appellant made during his parole interviews. For example, appellant's explanation for his past criminal behavior "ranged from purely monetary gain to support [his] upscale lifestyle, to exposing [his] father to mental anguish in acts of revenge because he physically abused [him]" and demonstrated "little to no insight" into the causes of his criminal behavior; his matter-of-fact comments about the victims and emphasis that he killed S.H. and S.R. in an "accidental manner" demonstrated lack of remorse and empathy for the victims and "downplayed the brutality and inhuman manner in which [he] acted; and he continued to deny his involvement in his aunt's attempted murder despite the guilty verdict. The panel also noted the twenty-two total institutional infractions, including six asterisk infractions, of which one, occurring in l98l, involved an attempt to escape prison and resulted in new criminal charges. The report additionally noted that "[a] document classified as confidential did play a significant role" in the panel's establishment of the FET.
On March 30, 2011, appellant administratively appealed to the Board. On June 29, 2011, the Board affirmed the three- member panel's decision to deny parole and establish a 240-month FET. This appeal ensued.
On appeal, appellant challenges the Board's denial of parole and imposition of the 240-month FET as arbitrary and not supported by the record. Specifically, he argues the three-member panel and, in turn the Board, improperly gave too much weight to aggravating factors such as his criminal history, recollection of past offenses, and purported lack of insight and acceptance of responsibility for his actions, and ignored or discounted significant mitigating factors, such as his extensive history of program and therapy participation and numerous letters of praise from established members of the community who serve as volunteers at the prison.
Appellant emphasizes, for example, that the Board mentions the word "rape" at least twenty-six times in its thirty-two page report; however, the one rape offense appellant was convicted of occurred forty-three years ago in l967, when he was twenty-seven years old and for which he already served the sentence. Appellant further notes, as he has argued throughout the proceedings, that for the majority of the time he has been incarcerated, he has been infraction-free, with the majority of his institutional infractions occurring over twenty years ago. Moreover, the infractions for which he was found guilty were the result of isolated incidents that occurred years apart from each other.
Appellant further argues that neither the three-member panel nor the Board provided anything more than a conclusory statement that a "document classified as confidential" played a "significant role" in the decision to impose the 240-month FET. Appellant made a general due process argument that the lack of identification of the document and production of a redacted summary thwarted his ability to rebut any information contained therein. He also challenged the Board's findings as based solely on the subjective impressions of its lay members rather than competent psychological evidence.
During oral argument it became clear that the Board's confidential document was, in fact, the prison's five-page mental health parole evaluation performed by Gregory Gambone, PhD on July 18, 2008, Static-99 Coding Form, and MnSOST-R Score Recording Sheet, all dated July 27, 2008, that was contained in appellant's appendix. Appellant then focused on the panel's and Board's lack of any analysis and explanation as to how they arrived at a twenty-year FET based on Dr. Gambone's opinion "that if paroled, the 68 year old [appellant] would present a MODERATE RISK for future violence."
Our review of a parole determination is limited. To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves "'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59 (1973)). The Board "has broad but not unlimited discretionary powers, and its determinations are always judicially reviewable for arbitrariness." Trantino, supra, 166 N.J. at 173 (internal quotation marks and citations omitted).
We will not set aside a parole board's decision that is factually supported by the record and is not arbitrary, capricious or unreasonable. Id. at 172. We will set aside such decision only "if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made." N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (internal quotation marks and citation omitted), certif. denied, 111 N.J. 649 (1988).
Based on our review of the record, briefs, and oral argument, we are satisfied the Board had ample factual and legal basis to conclude there is a substantial likelihood that appellant will commit another crime if released on parole.
Accordingly, there is no basis for judicial interference with the Board's decision to deny appellant parole.
However, we have a different view regarding the twenty-year FET. We first note the timetable of the various decisions in this case. The three-member panel convened on October 28, 2009 and issued its checklist decision imposing the 240-month FET but did not detail its reasoning until October 8, 2010. In the interim, on January 18, 2010, N.J.S.A. 30:4-123.56(a) and (b) were amended, effective August l, 2010, precluding the imposition of a FET "more than three years following the date on which an inmate was denied release." L. 2009, c. 330, § 6. The panel's decision, however, makes no mention of the amendment and only references the twenty-seven month presumption of N.J.A.C. 10A:71-3.21(a)l.
We acknowledge that this amendment was not in effect at the time the Board rendered its final agency decision on June 29, 2011, having been repealed by L. 2011, c. 67, § 1, effective May 9, 2011. Nonetheless, the three-member panel's apparent complete disregard of the Legislative determination that a FET exceeding three years was not appropriate at the time it issued its October 8, 2010 written opinion affects our assessment of the propriety of the twenty-year FET that was imposed by the Board in this case.
Moreover, even when viewed against the presumptive twenty-seven months, the FET set by the Board seems arbitrary and not guided by any particular standards other than that the presumptive term was "clearly inappropriate" and the collective factors warranted a significantly greater term, which amounts to almost ten times that amount. We do not disagree with the Board that a FET of longer duration than the guidelines is warranted under the circumstances. However, we are not convinced the record supports the establishment of a twenty-year FET. Appellant is currently seventy-two years old; a FET of such extraordinary length, even with potential commutation credits pursuant to N.J.A.C. 10A:71-3.2(g)(2), is tantamount to having no future eligibility date at all.
We agree with appellant that in assessing his progress while incarcerated, the three-member panel and Board made broad-brush references to his disciplinary infractions. Neither noted, for example, that appellant had no offenses between l993 and 2000, and the only offenses after an asterisk one of attempting or planning an escape on March 27, 200l, for which he was placed in administrative segregation for 270 days and referred to the institutional psychological department, were the minor infractions of .652, tattooing or self-mutilation (May 8, 200l), for which he was referred to the psychological department; .210, possession of anything not authorized for retention or not issued to an inmate through regular correctional channels (April 4, 2004), resulting in confiscation of the item and l0 days loss of recreational privileges; and .254, refusing to work or accept a program or housing unit assignment and .652, tattooing or self-mutilation (July 13, 2009), resulting in l5 days detention, 90 days administrative segregation and referral to the psychological department.
Additionally, and perhaps most critically, although the three-member panel states that a confidential report substantially informed its decision as to the FET, neither it nor the Board referenced any clinical assessment or objective psychological tests that supported the lengthy FET. It now appears the confidential document was Dr. Gambone's psychological evaluation, which is in appellant's possession and is a part of the record on appeal.
Applying all of these considerations, we conclude the Board was arbitrary in imposing a 240-month FET. We therefore remand the matter to the Board to establish a FET of shorter duration and to specifically articulate the basis for the term.
We affirm in part and reverse in part. We do not retain jurisdiction.