July 12, 2013
JAMES HYSON, Appellant,
NEW JERSEY STATE PAROLE BOARD, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 11, 2013.
On appeal from the New Jersey State Parole Board.
James Hyson, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).
Before Judges Graves and Espinosa.
James Hyson, a state prison inmate serving a life sentence, appeals from a March 28, 2012 decision of the New Jersey State Parole Board (Board) denying parole and establishing a sixty-month future eligibility term (FET). We affirm.
In a prior unreported opinion, we noted that Hyson has "a history of convictions for murder, armed robbery, aggravated assault and battery, escape, two convictions for larceny, and other offenses." Hyson v. N.J. State Parole Bd., No. A-3795-09 (App. Div. Mar. 7, 2011) (slip op. at 3) (Hyson II). We also noted that Hyson is currently serving a sentence for offenses committed while he was on parole for a 1975 murder conviction:
The murder conviction for which he was on parole at the time of the commission of the present offenses, arose from these facts. On the evening of April 4, 1974, Hyson broke into the home of his next-door neighbor, a seventy-nine-year-old woman. Hyson asked the victim for money and ordered her to remove her pants. He raped her. Hyson asked the victim for money. She gave him her pocketbook, containing at least $500. Hyson left.
The following day, the victim was found dead in her home. An autopsy revealed that she had a severe heart condition and had died of a heart attack. The Medical Examiner opined that the sexual assault by Hyson was a definite contributing factor to the fatal heart attack. Hyson was arrested for murder, rape, robbery, and breaking and entering. He entered a non-vult plea to the murder charge. The remaining charges were dismissed as part of a plea agreement. The judge imposed a twenty-five to twenty-seven year term.
After spending seven years in prison, Hyson was released on parole on December 15, 1981. Four months later, on April 19, 1982, Hyson raped and robbed a seventy-six year old woman.
In August 1982, when Hyson was thirty years old, he pled guilty to burglary, aggravated sexual assault, and robbery. Prior to sentencing, he was evaluated at the Adult Diagnostic and Treatment Center in Avenel. The evaluation stated:
Mr. Hyson's sexual involvement seems primarily related to his antisocial, narcissistic character. He has little regard for other people and barely knows they exist. He knows that his sexual behavior might cause severe negative consequences for other people. This behavior is done to fulfill his own primitive needs with the sexual component not being the predominant, overriding motive. His sexual behavior reflects a general antagonism and hatred of society and perceived hostility.
In addition, the report noted that defendant denied he was involved in the offenses and only "pled guilty because of the possible length of his sentence."
On November 10, 1982, Hyson was sentenced to a term of life imprisonment for aggravated sexual assault. The court imposed a concurrent seven-year term for burglary and a concurrent fifteen-year term for robbery. The trial court provided the following statement of reasons for the sentence:
This sentence was imposed pursuant to a plea agreement. The defendant raped and robbed a 76 year old woman in her own home while on parole for a prior homicide and rape. The defendant is highly dangerous and is a substantial risk to the community. The court would have preferred to impose minimum parole time which would guarantee that this defendant remained in jail for a very substantial period of time. The court was willing to accept the plea agreement, however, at the urging of the Prosecutor, due to the age and physical condition of the victim who might not be able to stand the rigors of trial. The gravity and seriousness, the defendant's prior record, and the need to remove him from society justify the sentence imposed.
In 2007, Hyson was denied parole and the Board imposed a sixty-month FET. On appeal, we reversed and remanded for further findings. Hyson v. N.J. State Parole Bd., No. A-2693-07 (App. Div. Apr. 21, 2009) (Hyson I). After the remand proceedings, we affirmed the sixty-month FET on March 7, 2011.
Hyson was again considered for parole in 2011. The parole hearing officer referred the matter to a two-member Board panel, which denied parole. The panel determined that a FET "within the Board's presumptive schedule would be inappropriate" because of Hyson's "lack of satisfactory progress in reducing the likelihood of future criminal behavior" and referred his case to a three-member Board panel for the imposition of an FET outside of the administrative guidelines.
Following a comprehensive review of Hyson's entire file, the three-member panel imposed a sixty-month FET on November 18, 2011. The panel found Hyson failed to demonstrate "the requisite amount of rehabilitative progress" and remained a "substantial threat to public safety." The panel noted Hyson "identified and acknowledged that alcohol impacted and influenced" his criminal behavior. However, the panel found Hyson's "proclivity to compartmentalize [his] past violent behavior, " by indicating it only occurred due to alcohol use, demonstrated he had not adequately addressed "the underlying reasons for [his] rage and hostility."
The panel also determined that Hyson lacked insight into why both of his rape victims were elderly woman, and that his "broad and non-specific comments, " such as, "I was very, very, angry at the world" and the victims "just got to me when many, many things had been going on, " demonstrated there were "key components" of his past behaviors and crimes that he did not understand. Thus, the panel was not convinced that Hyson had "a complete understanding of the scope and range of [his] hostility and aggression." In addition, the panel found that Hyson's plan to seek a placement and employment if released was not an adequate parole plan.
Moreover, the panel considered several mitigating factors, including Hyson's extensive participation in rehabilitative programs while incarcerated:
Alcoholics Anonymous (2008-2010), Behavior Modification (2006), MRT (2006), Narcotics Anonymous (2007-2010), Bridges to Freedom (2008), STARS (2008-2009), Thinking For a Change (2009) and SEALL (2010). Also noted was the fact that at the time of [his] hearing [Hyson was] in progress in Anger Management, Bible Study, Catholic Prayer Group, Quaker Workshop, Education Daily and [he was] on the waiting list for Individual Counseling, Anger Management, Advanced Masonry and Alcoholics Anonymous.
The panel noted Hyson had been infraction-free since 1986, and he received "average to above average work and housing reports." Hyson also presented the three-member panel with several letters of commendation and recommendation.
Additionally, the panel considered a mental health evaluation, dated May 2, 2011. The evaluation indicated that Hyson: has a "medium" prognosis for re-offending; "moderate/high risk for sexual offense recidivism"; a "moderate/high risk for future violence"; and a "moderate/high risk for future acting out behavior." The evaluation concluded that Hyson's prognosis for a successful parole "is guarded."
Hyson filed an administrative appeal from the panel's decision, but the full Board affirmed the decision on March 28, 2011. In a written decision, the Board determined the panel properly considered "the aggregate of information pursuant to N.J.A.C. 10A:71-3.11." In addition, the Board agreed with the panel that "a preponderance of the evidence indicates that there is a substantial likelihood that [Hyson] would commit a crime if released on parole at this time."
Hyson presents the following arguments on appeal to this court:
BOARD PANEL FINDING THAT APPELLANT POSSESSES A SUBSTANTIAL LIKELIHOOD TO COMMIT ANOTHER CRIME IF RELEASED ON PAROLE IS UNSUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD, AND IN DOING SO VIOLATED THE CLEAR LANGUAGE OF THE PAROLE ACT OF 1979, L. 1979, c. 441 § 9.
BOARD PANEL FAILED TO CONSIDER THE RECORD AS A WHOLE AND CHOSE TO USE SELECTIVE, AFFECTED AND UNSUPPORTED FACTORS TO DEFEND ITS DECISION TO AFFIRM THE DENIAL OF PAROLE AND TO ESTABLISH A FUTURE ELIGIBILITY TERM OUTSIDE THE ADMINISTRATIVE GUIDELINES.
BOARD PANEL DECISION TO DENY PAROLE IS NOT BASED UPON PAROLE STATUTES AND ADMINISTRATIVE REGULATIONS WHICH INFRINGED UPON APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION.
We are satisfied from our examination of the entire record and the applicable law that these arguments are without merit, Rule 2:11-3(e)(1)(E), and only require the following comments.
Our scope of review is limited. Parole Board determinations are not to be reversed "unless found to be arbitrary or an abuse of discretion." Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (citation omitted). When reviewing the decision of a state agency, such as the Board, we must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We must affirm unless the determination of the Board "'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.) (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J.Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988).
Parole Board decisions involve "highly '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, 359 (1973)). Such decisions represent a "'discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done'" Greenholtz v Inmates of Neb Penal & Corr Complex 442 U.S. 110 99 S.Ct. 2100 2105 60 L.Ed.2d 668 677 (1979) (quoting Sanford H Kadish The Advocate and the Expert - Counsel in the Peno-Correctional Process 45 Minn L Rev 803 813 (1961)) The Board "has broad but not unlimited discretionary powers" when reviewing an inmate's parole application Monks v. N.J. State Parole Bd 58 N.J. 238 242 (1971) The burden is on the appellant to show that the Board's decision is unreasonable Bowden v Bayside State Prison 268 N.J. Super 301 304 (App Div) certif denied 135 N.J. 469 (1993)
In the present matter the Board's decision is "supported by sufficient credible evidence on the record as a whole" Rule 2:11-3(e)(1)(D) and the Board correctly applied the controlling legal principles