July 18, 2013
FRANK T. MILLER, Appellant,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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.
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. 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 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).
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  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,  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 substantial likelihood that you will commit a crime if released on parole at this time.
The Board also affirmed the thirty-six-month FET. This appeal followed.
Miller raises the following issues on appeal:
I. THE PAROLE BOARD COULD NOT REASONABLY HAVE CONCLUDED THAT THE STATE HAD MET ITS BURDEN TO SHOW A SUBSTANTIAL LIKELIHOOD THAT [MILLER] WILL COMMIT ANOTHER CRIME IF RELEASED.
A. The Parole Board's decision ignores compelling evidence and misstates or understates positive facts that demonstrate that [Miller] would not commit another crime if paroled.
1. The evidence shows that [Miller] achieved minimum custody status, contrary to the finding of the Parole Board.
2. The Board impermissibly overlooked [Miller's] extensive positive work history, including years of work assignments successfully completed outside the prison walls.
3. The Board erred by failing to consider the myriad therapeutic and rehabilitative activities in which [Miller] has been engaged over the past 18 years.
4. The Board erred by failing to consider [Miller's] religious faith — and by preventing the prison chaplain from offering information about his religious activities – which have become a central pillar in his life in prison and of his parole plan, and which strongly predict that he will not reoffend if released.
B. The Parole Board's negative findings are either unsupported by substantial evidence or are so old and out of date as to be an impermissible basis for finding a present risk that [Miller] will reoffend if released.
1. The reliance by the Board on evidence of old crimes is a makeweight to overcome the lack of substantial evidence to support the conclusion that [Miller] is now, after 18 years with an impeccable record, a recidivism risk.
2. The remaining public factors relied upon by the Board are unsupported — indeed contradicted — by substantial evidence.
II. THE PAROLE BOARD'S DECISION MUST BE REVERSED BECAUSE IT MAINTAINED AND RELIED UPON "CONFIDENTIAL" MATERIALS, INCLUDING PSYCHOLOGICAL EVALUATIONS THAT SHOULD HAVE BEEN — AND MUST NOW BE — DISCLOSED TO [MILLER] OR TO HIS COUNSEL, AND BECAUSE IT FAILED TO CONSIDER NUMEROUS POSITIVE PSYCHOLOGICAL EVALUATIONS CONDUCTED PRIOR TO THE PRESENT PAROLE ELIGIBILITY.
A. The Parole Board's regulations, which require nondisclosure of psychological records without regard to whether such disclosure would cause any harm, violates Due Process.
B. The State's non-disclosure of the particular psychological/ mental health reports at issue in this case is unwarranted.
C. The Board failed to consider prior psychological evaluations, at least some of which appear to have been very positive, and all of which must also be disclosed.
D. The [c]ourt must carefully review the propriety of the State's withholding of other documents marked "confidential, " and should order the State to provide a fuller description of the basis for their withholding, so as to permit [Miller] meaningfully to challenge their non-disclosure.
III. THE STATE IMPERMISSIBLY INTERFERED WITH [MILLER'S] ABILITY TO OBTAIN AN INDEPENDENT PSYCHOLOGICAL EVALUATION IN A TIMELY MANNER, IN VIOLATION OF HIS RIGHTS AND THE PAROLE BOARD'S OWN REGULATIONS.
Our standard of review of administrative decisions of the Parole Board is limited and is "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd. (Trantino V), 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Id. at 201 (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668, 677 (1979)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. Consequently, we may reverse the Board's decision only if it is "arbitrary and capricious." Ibid. We do not disturb the Board's factual findings if they "could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 172 (quoting Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998)).
In determining whether the Board erred in denying parole, we must examine:
(1) whether the agency's action violates express or implied legislative policy, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Ibid. (quoting Trantino IV, supra, 154 N.J. at 24).]
"A court may not substitute its judgment for that of the [Board]." McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563 (App. Div. 2002). As a result, we accord the Board's decision a presumption of validity, inasmuch as 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. 1993), certif. denied, 135 N.J. 469 (1994).
Nevertheless, as the Supreme Court held in Trantino V, supra, 166 N.J. at 197,
"The legislation shifts the burden to the State to prove that the prisoner is a recidivist and should not be released." New Jersey Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983). We stated that "the Legislature recognized that under the Parole Act of 1979 a parole eligibility date creates a legitimate expectation of release . . . absent findings that justification for deferral exists. Based upon this interpretation of our statute, we find that a federally-protected liberty interest exists." Id. at 207. In short, [when] the punitive aspect of his sentence already has been served, Trantino IV, supra, 154 N.J. at 39, [an inmate has] a constitutionally protected right to parole unless the State could prove that there was a "substantial likelihood" that he would commit another crime.
In cases where the crime for which an inmate is incarcerated took place before August 19, 1997, "the Board panel shall determine whether . . . by a preponderance of the evidence . . . there is a substantial likelihood that the inmate will commit a crime under the laws of the State of New Jersey if released on parole." N.J.A.C. 10A:71-3.10(a); see also N.J.S.A. 30:4-123.53(a) (part of the Parole Act of 1979). "[T]he Board [must] focus its attention squarely on the likelihood of recidivism." McGowan, supra, 347 N.J.Super. at 565.
N.J.A.C. 10A:71-3.11 provides as follows:
(a)Parole decisions shall be based on the aggregate of all pertinent factors, including material supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate.
(b) The hearing officer, Board panel or Board shall consider the following factors and, in addition, may consider any other factors deemed relevant:
1. Commission of an offense while incarcerated.
2. Commission of serious disciplinary infractions.
3. Nature and pattern of previous convictions.
4. Adjustment to previous probation, parole and incarceration.
5. Facts and circumstances of the offense.
6. Aggravating and mitigating factors surrounding the offense.
7. Pattern of less serious disciplinary infractions.
8. Participation in institutional programs which could have led to the improvement of problems diagnosed at admission or during incarceration. This includes, but is not limited to, participation in substance abuse programs, academic or vocational education programs, work assignments that provide on-the-job training and individual or group counseling.
9. Statements by institutional staff, with supporting documentation, that the inmate is likely to commit a crime if released; that the inmate has failed to cooperate in his or her own rehabilitation; or that there is a reasonable expectation that the inmate will violate conditions of parole.
10. Documented pattern of relationships with institutional staff or inmates.
11. Documented changes in attitude toward self or others.
12. Documentation reflecting personal goals, personal strengths or motivation for law-abiding behavior.
13. Mental and emotional health.
14. Parole plans and the investigation thereof.
15. Status of family or marital relationships at the time of eligibility.
16. Availability of community resources or support services for inmates who have a demonstrated need for same.
17. Statements by the inmate reflecting on the likelihood that he or she will commit another crime; the failure to cooperate in his or her own rehabilitation; or the reasonable expectation that he or she will violate conditions of parole.
18. History of employment, education and military service.
19.Family and marital history.
20. Statement by the court reflecting the reasons for the sentence imposed.
21. Statements or evidence presented by the appropriate prosecutor's office, the Office of the Attorney General, or any other criminal justice agency.
22.Statement or testimony of any victim or the nearest relative(s) of a murder/manslaughter victim.
23. The results of the objective risk assessment instrument.
Although the panel's and the Board's decisions did not specifically discuss and analyze the weight accorded to each factor, it appears that the applicable factors were taken into account in reaching the decisions. Having reviewed the record before us in light of the applicable law, we conclude that our standard of review requires us to affirm the Board's decision. While the Board could have articulated its weighing of the regulatory factors more clearly, we are not in a position, on this record, to second guess the Board's decision. Had the Board refused to allow Miller an adjournment to obtain the psychological report, had it rejected a formal request from his counsel on this appeal to access the confidential documents, or were Miller not now eligible to apply for parole again, we might well have reached a different result and been inclined to remand. However, Miller clearly waived the independent psychological examination and his appellate counsel never sought access to the documents. In addition, it is not clear from the record that the prison chaplain was precluded from sending anything to the Board, as Miller contends, or merely precluded from sending a formal recommendation, as the Board argues.
In connection with his renewed application, Miller and his counsel will have the opportunity to ensure that there is an independent psychological examination, that the confidential documents are disclosed to counsel if not also Miller,  and that the prison chaplain is able to communicate his views to the Board to the fullest extent permitted. In addition, they can present such additional information as they deem appropriate.
The Board will be expected to articulate more specifically and fully its weighing of the factors, such as work history, the reasons for giving such considerable weight to events that took place decades ago in light of Miller's more recent, post-1994, history, and the basis of its concerns about Miller's substance abuse problems, his problem with resolution and insight into his criminal conduct, and his parole plans. See Trantino V, supra, 166 N.J. at 121; N.J.A.C. 10A:71-3.11. The Board will also be expected to consider all available psychological information, including the independent expert report and all of Miller's earlier evaluations. "[T]he Parole Board [is] obligated, in considering [an] application for parole, to render its decision not on the basis of the testimony of a single expert, or selected experts, but rather by application of 'the statutory criteria to all of the relevant evidence.'" Trantino V, supra, 166 N.J. at 175 (quoting State in Interest of C.A.H. & B.A.R., 89 N.J. 326, 344 n.5 (1982)).