July 19, 2013
WILLIE WILLIAMS, Appellant,
NEW JERSEY STATE PAROLE BOARD, Respondent
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2013
On appeal from the New Jersey State Parole Board.
Willie Williams, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
Before Judges Messano and Ostrer.
Appellant, Willie Williams, appeals from a July 20, 2011, Parole Board (Board) decision denying his application for parole and a November 23, 2011, Board decision establishing a future eligibility term (FET) of thirty-six months. He argues that the Board violated the Ex Post Facto and Double Jeopardy Clauses of the United States Constitution. See U.S. Const. art. 1, § 10, cl. 1 ("No State shall . . . pass any . . . Ex Post Facto Law"); U.S. Const. amend. V ("nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb"). Having considered his argument in light of the facts and applicable law, we affirm.
Appellant murdered a fellow New Jersey State Prison inmate in 1981, while he was serving sentences for convictions arising out of two bank robberies in 1975. He was sentenced to a term of fifteen to nineteen years on convictions of two counts of armed robbery and possession of a weapon related to one bank robbery, and a consecutive term of ten to fifteen years for armed robbery in connection with the other bank robbery. On the murder, he was sentenced to a consecutive term of life imprisonment, with a twenty-five-year parole disqualifier. He had previously been on probation for a municipal court conviction for a drug-related offense in 1973.
Appellant has had an infraction-free prison record since 1994. This most recent consideration of appellant's parole eligibility marked the second time he had become eligible for parole. He was denied parole in 2008, and given a sixty-month FET.
On July 20, 2011, the full Board denied parole, determining "a substantial likelihood exists that [appellant] would commit a new crime if released . . . at this time." The Board gave the following reasons for denying appellant's application for parole:
Prior criminal record noted.
Nature of criminal record increasingly more serious.
Presently incarcerated for multi-crime conviction.
. . . .
Prior opportunity(ies) on community supervision (probation/parole) has (have) failed to deter criminal behavior.
. . . .
Insufficient problem(s) resolution[, ] [s]pecifically . . . [l]ack of insight into criminal behavior [and] . . . [m]inimizes conduct[.] . . . Subject presents as detached emotionally and cavalierly compartmalizes [sic] his past criminality simply by stating, "I am not that person any more."
. . . .
Commission of a crime while incarcerated /on bail / on escape / attempting to elude prosecution. Murder.
The Board suggested that appellant consider participating in substance abuse counseling and behavior modification.
The Board referred the case to a second review to establish a future parole eligibility term, and invited appellant to submit a letter of mitigation. He did so, noting that in mid-2011, he participated in a substance abuse program and a behavior modification program, completing both in September 2011.
Appellant wrote, "I want to take this time to clearly state that I take full responsibility for the crimes of armed robbery and murder that I committed." Appellant asserted he was reckless; he regretted his actions; he had worked to control his "base emotions, " and to live a life of "faith, hope and love, " and to build his character so he would not reoffend upon release. He admitted that at the hearing, he stated he was not emotionally anguished when he committed murder, but explained that he was "not that person anymore, " in other words, he now had the emotional understanding he lacked when he committed the murder. He also cited numerous programs in which he participated after his 2008 parole denial; and his infraction-free record for the last sixteen years. He asked the Board to reconsider its denial of parole, or in the alternative, to impose an FET of no more than twenty-seven months.
The Board approved a thirty-six month FET in November 2011, citing the same reasons reflected in its July order, but adding the suggestion that appellant also participate in "[i]nstitutional programs geared toward criminal behavior."
On appeal, appellant raises the following points for our consideration:
THE RETROACTIVE APPLICATION OF THE 1997 AMENDMENTS TO THE PAROLE ACT OF 1979 AS A BASIS FOR DENYING APPELLANT PAROLE VIOLATES THE EX POST FACTO LAWS OF THE UNITED STATES CONSTITUTION.
A. TRANTINO V. N.J. STATE PAROLE BOARD, 331 N.J. SUPER. 577 (APP. DIV. 2000) WAS WRONGLY DECIDED IN LIGHT OF GARNER V. JONES.
B. THE AMENDED PUBLIC SAFETY AND EXTENT OF PUNISHMENT PAROLE PHILOSOPHY WERE RETROACTIVELY USED TO DENY APPELLANT'S RELEASE.
C. APPELLANT HAD AN EXPECTATION OF RELEASE UNDER N.J.S.A. 30:4-123.56c, BUT HE WAS DENIED RELEASE BECAUSE THE RETROACTIVE AMENDMENTS TO 30:4-123.56c WERE APPLIED TO HIM.
i. The operation of 30:4-123.53a and 30:4-123.56c.
ii. Retroactive Application of Amended 30:4-123.53a and 30:4-123.56c.
D. APPELLANT WAS DENIED PAROLE UNDER THE AMENDED REASONABLE EXPECTATION STANDARD OF 56c INSTEAD OF THE SUBSTANTIAL LIKELIHOOD STANDARD.
THE 1997 AMENDMENTS TO THE PAROLE ACT OF 1979 AUTHORIZING RESPONDENT PAROLE BOARD TO PROTECT PUBLIC SAFETY, DETERMINE EXTENT OF PUNISHMENT, AND CONSIDER ANY INFORMATION WHEN DENYING APPELLANT PAROLE VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
A. DENYING APPELLANT PAROLE TO PROTECT PUBLIC SAFETY AND DETERMINING EXTENT OF PUNISHMENT IS DOUBLE JEOPARDY.
B. THE AMENDED N.J.S.A. 30:4-123.56c ALLOWING THE RESPONDENT TO DENY APPELLANT PAROLE BY CONSIDERING HIS CRIMINAL RECORD IS DOUBLE JEOPARDY.
THE RESPONDENT PAROLE BOARD ARBITRARILY DENIED APPELLANT PAROLE BECAUSE IT APPLIED THE AMENDED N.J.S.A. 30:4-123.56c STANDARD OF ANY INFORMATION INSTEAD OF THE GREENHOLTZ V. NEBRASKA STANDARD OF WHAT HE IS TODAY IN VIOLATION OF THE UNITED STATES CONSTITUTION FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.
When determining the validity of the Board's denial of parole, we must examine:
(1) whether the agency's action violates express or implied legislative policies, 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 actions; 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.
[Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (Trantino IV).]
We 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. 1993), certif. denied, 135 N.J. 469 (1994).
Appellant does not challenge the evidentiary support for the Board's decision. Nor would such a challenge succeed. Because appellant's offenses were committed in 1975 and 1981, the governing standard, as then set forth in N.J.S.A. 30:4-123.53a (1979) (amended 1997), required his release on parole unless it was established "by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the law of this State if released on parole at such time." Notwithstanding appellant's assertion that he has matured, participated in educational programs, and avoided infractions over an extended time period, we are satisfied there is sufficient credible evidence in the record to support the Board's finding that there is a substantial likelihood appellant would commit another crime if released on parole.
The evidence supporting the Board's decision includes his two armed robberies and his commission of murder while incarcerated. The fact that appellant was not deterred from committing a murder while in custody and under prison supervision, raises questions about his likelihood of remaining offense-free when released. The Board was also informed by a confidential psychological evaluation. Although conveying a more positive picture than in 2008, the psychological evaluation nonetheless concluded that appellant posed a medium risk for future violence.
Appellant argues that the Board violated his constitutional right to be free from ex post facto laws when it did not restrict itself to "new" information generated after his 2008 parole hearing. Prior to 1997, N.J.S.A. 30:4-123.56c, governing the criteria for granting parole after an initial denial, provided:
An inmate shall be released on parole on the new parole eligibility date unless new information filed pursuant to a procedure identical to that set forth in section 10 indicates by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time[.]
[L. 1979, c. 441, § 12, then codified at N.J.S.A. 30:4-123.56c (emphasis added).]
In 1997, the Legislature adopted various amendments to the parole law, in response to recommendations from a gubernatorial study commission. See Trantino v. N.J. State Parole Bd., 331 N.J.Super. 577, 608-10 (App. Div. 2000) (discussing the legislative history of the 1997 amendments), modified in part and aff'd in part on other grounds, 166 N.J. 113 (2001). Under one of the amendments, the word "new" was deleted, freeing the Board to consider any information at the subsequent hearing. See Assembly Law & Public Safety Committee, Statement to Assembly Bill No. 21 (March 3, 1997) (stating that the 1997 amendment was enacted "to change the standard by which the parole board determines whether an inmate should be paroled, [to] allow the parole board to weigh all relevant information in an inmate's record when considering that inmate's parole eligibility at second and subsequent hearings"). According to the legislative committees, under then-current law, "the parole board . . . is required to release any inmate who has been previously denied parole" unless new information justified denial. Ibid.; Senate Law and Public Safety Committee, Statement to Assembly Bill No. 21 (First Reprint) (June 16, 1997). The Corrections Department estimated this change would affect 864 inmates a year. Fiscal Note to Assembly Bill No. 21 (First Reprint) (June 16, 1997).
Amendments also altered the substantive criteria for denial, changing it from "substantial likelihood that the inmate will commit a crime . . . if released on parole" to "has failed to cooperate in his or her own rehabilitation or . . . there is a reasonable expectation that the inmate will violate conditions of parole." N.J.S.A. 30:4-123.56c as amended, and in effect during appellant's 2011 hearing, provides:
An inmate shall be released on parole on the new parole eligibility date unless information filed pursuant to a procedure identical to that set forth in section 10 of P.L.1979, c.441 (C.30:4-123.54) indicates by a preponderance of the evidence 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 imposed pursuant to Section 15 of P.L.1979, c.441 (C.30:4-123.59) if released on parole at that time.
[L. 1997, c. 213, § 2, codified at N.J.S.A. 30:4-123.56c.]
In addition, a new provision was added expressly authorizing the Parole Board to obtain a pre-parole psychological evaluation. "At any time . . . the appropriate board panel or the Parole Board may require, as often as it deems necessary, that inmate to undergo an in-depth preparole psychological evaluation . . . to provide current and accurate information to assess the inmate's suitability for parole." L. 1997, c. 217, §2, codified at N.J.S.A. 30:4-123.52d.
There is no reasonable dispute that the Board applied the pre-1997 substantive criteria in this case. Appellant does not challenge the psychological evaluation provision. The principal issue is whether the 1997 provision expanding the kind of information the Board could consider is an ex post facto law.
We considered the same issue in Trantino, supra, 331 N.J.Super. at 610, and determined that the 1997 amendments "did not violate the ex post facto clause since this change [from "new information" to "information"] in the law is a procedural modification that does not constitute a substantive change in the parole release criteria." (citing State v. Muhammad, 145 N.J. 23, 56-57 (1996); California Dept. of Corrs. v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)). In Muhammad, supra, 145 N.J. at 56-57, the Court rejected an ex post facto challenge to a law permitting introduction of victim impact statements in the penalty phase of a capital case. "Because N.J.S.A. 2C:11-3c(6) simply modified the scope of evidence that may be admitted during the penalty phase of a capital case and did not alter any substantive rights of defendant, the statute's application to defendant would not violate the State or Federal Ex Post Facto Clauses." Id. at 57.
Appellant argues that Trantino was wrongly decided. He contends that the Supreme Court's then-recent decision in Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1392, 146 L.Ed.2d 236 (2000), which we did not address, compelled a different result in Trantino, and in his case before us.
Having carefully reviewed the principles set forth in Garner, we disagree. In Garner, the Supreme Court reversed a Court of Appeals decision that held a regulatory change in the presumptive frequency of parole hearings was an ex post facto law as applied to persons already incarcerated when the change was made. Id. at 257, 120 S.Ct. at 1371, 146 L.Ed.2d at 249. In considering whether a change in parole law violates the Ex Post Facto Clause, the Court stated, "The question is whether the amended [law] creates a significant risk of prolonging respondent's incarceration." Id. at 251, 120 S.Ct. at 1368, 146 L.Ed.2d at 245.
The Court emphasized that "not every retroactive procedural change creating a risk of affecting an inmate's terms or conditions of confinement is prohibited. The question is 'a matter of "degree."'" Id. at 250, 120 S.Ct. at 1367, 146 L.Ed.2d at 244 (citing Morales, supra, 514 U.S. at 508-09, 115 S.Ct. at 1603, 131 L.Ed.2d at 596 (in turn quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 2D 216, 218 (1925))). The Court cautioned that "the Ex Post Facto Clause should not be employed for 'the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures.'" Id. at 252, 120 S.Ct. at 1368, 146 L.Ed.2d at 245 (quoting Morales, supra, 514 U.S. at 508, 115 S.Ct. at 1602, 131 L.Ed.2d at 596). In particular, the Court referred to the underlying purpose of the ex post facto clause — to give the public advance notice of the penalty for criminal behavior — and noted that criminals are on notice that parole decisions are inherently discretionary, and "discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised." Id. at 253, 120 S.Ct. at 1369, 146 L.Ed.2d at 246.
The Court enunciated a test to determine if a change in law creates a "significant risk" of prolonged incarceration. A court must examine the law itself, and then its impact:
When the rule does not by its own terms show a significant risk, [the respondent-prisoner] must demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.
[Id. at 255, 120 S.Ct. at 1370, 146 L.Ed.2d at 247.]
A court must consider the alleged ex post facto law as applied to the complaining prisoner. Specifically, the appellant "must show that as applied to his own sentence the law created a significant risk of increasing his punishment." Ibid.
Applying the standards set forth in Garner, supra, we discern no significant risk, based on the statute's own terms, of prolonging appellant's incarceration. The 1997 statute expanded the information that could be used. It did so in part by removing the restriction to "new information." But, a companion statute also separately expanded the "new" information available, by authorizing pre-parole psychological evaluations.
We recognize the gubernatorial Study Commission believed that removing "new" would avoid preventing the Board from denying parole in cases where certain new negative information was not developed. Trantino, supra, 331 N.J.Super. at 608-09 (discussing the Commission's recommendations). The Corrections Department also estimated that 864 inmates would be affected each year. However, there is no empirical evidence in the record that the statutory change in fact significantly increased the percentage of persons denied parole utilizing the pre-1997 criteria, but the post-1997 evidentiary standard.
The Commission's overarching goal in proposing the amendment was to enable the Board to "'more accurately . . . predict an inmate's likelihood of committing another crime if released on parole.'" Id. at 609 (quoting N.J. Dep't of Law and Public Safety, Report of the Study Commission on Parole (Dec. 1996)). It hardly undermines the policy of notice underlying the Ex Post Facto Clause to adopt a change designed to enable the decision-maker to reach more informed and accurate decisions. We may presume that potential violators of law would anticipate that decision-makers would strive to make accurate decisions.
Appellant has not demonstrated that "as applied to his own sentence the law created a significant risk of increasing his punishment." Garner, supra, 529 U.S. at 255, 120 S.Ct. at 1370, 146 L.Ed.2d at 248. Regardless of the statutory change, the Board evidently reached its decision here based in large part on "new" information, consisting of his current psychological evaluation, and his current presentation, including his lack of insight and continuing minimization of his conduct, which were demonstrated in statements he made at his 2011 parole hearing. These considerations outweighed the mitigating factors, including appellant's positive institutional adjustment. While the reasons for denial include reference to the nature of his past criminal behavior, those facts remain a continuing consideration in evaluating the whole person as currently presented to the Board.
In sum, we discern no violation of appellant's rights under the Ex Post Facto Clause. As we have concluded that the change in the parole law did not retroactively enhance appellant's sentence, we perforce conclude the law did not violate the Double Jeopardy Clause by imposing a second punishment for the same acts. See Auge v. N.J. Dept. of Corrs., 327 N.J.Super. 256, 262 (App. Div.) (noting that in considering ex post facto and double jeopardy challenges court must consider the same threshold question whether the challenged law imposes criminal punishment), certif. denied, 164 N.J. 559 (2000). We have concluded in our ex post facto analysis that the 1997 amendment did not prolong or extend appellant's sentence. For the same reason, the law does not present double jeopardy concerns. Cf. State v. Ryan, 86 N.J. 1, 10-11 (1981) (noting that extending a sentence once it has gone into effect raises double jeopardy concerns), cert. denied, 454 U.S. 880, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981).
Appellant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).