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Miller v. New Jersey State Parole Board

Superior Court of New Jersey, Appellate Division

July 18, 2013

FRANK T. MILLER, Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 14, 2013

On appeal from the New Jersey State Parole Board.

Jonathan M. Manes argued the cause for appellant (Gibbons P.C., attorneys; Mr. Manes and Lawrence S. Lustberg, on the briefs).

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).

Before Judges Fisher, Waugh, and St. John.

PER CURIAM

Appellant Frank T. Miller appeals the final administrative action of the New Jersey State Parole Board (Board), denying parole and setting a thirty-six-month future eligibility term (FET). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In June 1976, Miller and his brother agreed to commit an armed robbery at a convenience store in Bradley Beach. An off-duty police officer, John Wright, intervened in the attempted robbery and pursued both brothers. Wright apprehended Miller. As he was frisking Miller, his brother shot and killed Wright.

In July 1976, following a jury trial, Miller was found guilty of murder of a police officer, entering without breaking with intent to rob, attempted robbery, possession of a firearm without a permit, and conspiracy to commit armed robbery. He received a sentence of life imprisonment for the murder, and consecutive sentences totaling five to eight years for the lesser charges.

Between 1976 and 1994, Miller was disciplined for numerous institutional infractions, including eight asterisk charges and fifty non-asterisk charges.[1] During the same period, he did not take part in any rehabilitative programs.

In 1982, Miller and another prisoner stabbed a fellow inmate. Based on that incident, Miller was convicted of aggravated assault and possession of a weapon for an unlawful purpose. He received a ten-year sentence, consecutive to his other sentences.

Miller has not committed any institutional infractions since October 1994. In 1995, he began active participation in rehabilitative, therapeutic, and educational programs in prison. At the time of the Board's hearing, he had earned his high school diploma and completed more than forty-five programs.

According to Miller, he became a born-again Christian in 1998. He was baptized in 2007, and takes part in religious activities at the prison chapel on a regular basis.

Miller obtained full minimum custody status in 1995 and began work assignments outside prison walls in 1996. In 2001, Miller was transferred to East Jersey State Prison (EJSP), where he is currently incarcerated. At about the same time, his custody status was changed to gang minimum[2] based upon the results of a psychological evaluation conducted at EJSP. While at EJSP, Miller has continued to take part in institutional programs and has worked in a variety of jobs.

Miller first became eligible for parole in 1999. A panel of the Parole Board denied his application and set a twenty-five-year FET in March 2000. The denial and FET were affirmed by the full Board. We affirmed the Board's decision in February 2003. Miller v. N.J. State Parole Bd., Nos. A-2653-00, A-3375-01 (App. Div. Feb. 20, 2003) (slip op. at 6). Miller's petition for certification was denied. Miller v. N.J. State Parole Bd., 176 N.J. 429 (2003).[3]

Because of reductions in the length of the FET resulting from restoration of commutation time, Miller was again eligible for parole in late 2010. He had an interview with one of the Board's hearing officers on November 10. The hearing officer referred the matter to a two-member panel of the Board, noting in his referral that "[s]ince prior [2000] panel, subject has completed numerous additional [i]nstitutional programs and has been infraction free. Lack of supportive Parole Plan still remains a concern." Miller submitted a parole plan on December 20, with a revised plan submitted on January 8, 2011. The revised plan provides for transitional housing at a religiously-affiliated group home run by South Jersey Aftercare.

In February 2011, Miller requested a postponement of his hearing before the Board panel so he could obtain an evaluation by an outside psychologist. In April, however, he withdrew his request for postponement and re-initiated parole proceedings. He informed the panel members at his hearing that he had been unable to obtain the outside evaluation because the psychologist was prevented from meeting with him or accessing his medical records by prison officials. He declined an adjournment for the purpose of obtaining the evaluation.

The two-member panel held its hearing on June 6, with Miller participating by videoconference. The panel denied parole and established a thirty-six-month FET. The panel identified the following mitigating factors: Miller's participation in programs specific to behavior, his participation in institutional programs, his attempts to enroll and participate in programs to which he had not been admitted, favorable institutional adjustment (last infraction October 13, 1994), and restoration of commutation time. As reasons for denial, the panel pointed to Miller's extensive and repetitive prior criminal record, the increasingly more serious nature of his criminal conduct, his incarceration for multi-crime convictions, the fact that an earlier probation had been terminated because of the commission of new offenses, the fact that prior incarcerations and opportunities on probation and parole had failed to deter criminal behavior, the fact that his institutional infractions had been serious and resulted in loss of commutation time and administrative segregation, his lack of an adequate parole plan, the results of his risk assessment evaluation, [4] and insufficient problem resolution, including "[l]ack of insight into criminal behavior, " "[m]inimizes conduct, " "[s]ubstance abuse problem . . . not . . . sufficiently addressed, " and "while [Miller] has been in some programs, he remains unclear regarding his criminal behavior." The panel also suggested that Miller participate in substance abuse counseling and individual counseling.

Miller appealed to the full Board, which affirmed the panel on November 30. The Board adopted the panel's Notice of Decision with amendments, adding "[a]verage to above average institutional report(s)" as a mitigating factor. It also removed references to past institutional infractions from reasons for denial. However, the Board found each of Miller's grounds for reversal to be without merit, and determined that the panel had

considered the aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision pursuant to N.J.A.C. 10A:71-3.18(f). Also, the full Board found that the [two-member panel's] decision is based upon a determination that a preponderance of the evidence indicates that there is a ...

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