ROBERT IVERSON v. NEW JERSEY STATE PAROLE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3169-04T53169-04T5

ROBERT IVERSON,

Petitioner,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

_________________________________________________

 

Submitted January 18, 2006 - Decided

Before Judges Payne and Sabatino.

On appeal from a Final Agency Decision

of the New Jersey State Parole Board.

Robert Iverson, petitioner, filed a pro se

brief.

Nancy Kaplen, Acting Attorney General, attorney for respondent (Michael J.

Haas, Assistant Attorney General, of

counsel, and Kimberly A. Sked, Deputy

Attorney General, on the brief).

PER CURIAM

Petitioner Robert Iverson, who resolved three indictments by pleading guilty to one count of resisting arrest and two counts of criminal contempt, and is serving an aggregate five-year prison sentence imposed on November 13, 2003, appeals from a denial of parole and the imposition of a future eligibility term (FET) of twenty months.

On appeal, petitioner raises the following issues:

POINT I

THE FULL-BOARD'S DECISION DENYING APPELLANT'S PAROLE WAS NOT SUFFICIENTLY SUPPORTED BY INFORMATION OPENLY BEFORE THE BOARD WITHOUT SUGGESTION THAT MATERIALS WITHHELD, AS TO PSYCHOLOGICAL EVALUATION REPORT, FOR CONFIDENTIALITY REASONS, PLAYED SUBSTANTIAL ROLE IN THE DENIAL, WHICH DEPRIVED HIM OF DUE PROCESS OF LAW UNDER U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, Para 10.

(Not Raised Below.)

POINT II

THE FULL-BOARD AFFIRMED ITS PANEL DENIAL OF PAROLE TO APPELLANT ON THE SAME ARBITRARY AND ABUSE OF DISCRETION PROCESS AS DID ITS PANEL. THEREFORE, THE BOARD IS OPPOSED TO REHABILITATION AND IS CLEARLY MAKING A MOCKERY OUT OF THE DIFFICULTY TO A RECIDIVIST, WHO'S PARTICIPATION AND COMPLETION OF PROGRAMS IS SUBSTANTIAL LIKELIHOOD THAT IS NOT CONSISTENT TO RECIDIVISM AND IS FAVORABLE CREDITABLE EVIDENCE TO HIS RELEASE. WHICH DEPRIVED HIM OF DUE PROCESS OF LAW UNDER U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, Para 10.

(Not Raised Below.)

A

THE BOARD'S PANEL DENIED PAROLE BASED ON APPELLANT'S PRIOR CRIMINAL RECORD AND PRESENT MULTI-CRIME CONVICTION, IS UNFAIR AND IS AN ABUSE OF DISCRETION AND BECAUSE IT IS NOT WELL STATED IN THE PANEL'S DECISION FORM. THEREFORE, HE SHOULD BE RELEASED.

(Not Raised Below.)

B

THE FULL-BOARD DENIED PAROLE BASED ON APPELLANT'S ANGER AND DOMESTIC VIOLENCE ISSUES IS ARBITRARY AND CAPRICIOUS, SINCE HE HAD SATISFIED THOSE PROBLEMS BEFORE HE ENTERED PRISON WHEN HE COMPLETED CLASSES GEARED TOWARD SUCH CLASSES [SIC] AT THE SALEM COUNTY CORRECTIONAL FACILITY.

(Partly Raised Below.)

POINT III

APPELLANT SHOULD BE RELEASED ON PAROLE BECAUSE THE SOUTH WOODS STATE PRISON WAITING-LIST FOR INSTITUTIONAL PROGRAMS WHICH ARE GEARED TOWARDS ERASING CRIMINAL BEHAVIOR UPON RELEASE IS A UNFAIR PRACTICE AND VIOLATED HIS DUE PROCESS RIGHTS, SINCE STATUTE CREATES A PRESUMPTION OF RELEASE ON PAROLE ELIGIBILITY DATE IF A PRISONER COMPLETES THE DYNAMICS NECESSARY FOR THESE CLASSES. WHICH DEPRIVED HIM OF DUE PROCESS OF LAW UNDER U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, Para 10.

We affirm.

Prior to the incidents that led to the present sentence, petitioner had been convicted as an adult on six occasions, and he had three prior juvenile adjudications. Petitioner was arrested six more times after being arrested on the charges that led to his current prison term. He would have been initially eligible for release on parole on December 29, 2004, but following consideration and referral of his case by a hearing officer, a two-member Parole Board Panel instead imposed a twenty-month extension. In doing so, the Panel found as mitigating factors petitioner's

participation in program(s) specific to behavior; his average to above average institutional report(s), and his attempt made to enroll and participate in program(s) but was not admitted.

However, it found the mitigating factors to be outweighed by the following aggravating factors:

Prior criminal record is extensive and repetitive;

Presently incarcerated for multi crime conviction;

Prior opportunity on parole has failed to deter criminal behavior;

Prior opportunity on community supervision (parole) has been violated in the past;

Prior incarceration(s) did not deter criminal behavior; and

Insufficient problem(s) resolution: lack of insight into behavior, minimizes conduct, and anger and domestic violence issues.

The Panel found as a result that there was a reasonable expectation that petitioner would violate conditions of parole if released as scheduled.

Following receipt of the Panel's decision, petitioner filed an appeal to the Parole Board in which he claimed:

After the panel's failure to follow its own professional code of conduct rules, [he] was denied parole with inaccurate facts. The panel appears to [have] reviewed presentence reports which involved and/or should have involved psychological reports, risk assessments, correctional officer(s) reports and program participation proofs that [were] available from the Salem County Correctional Facility where the defendant was prior to this South Woods State Prison. However, the circumstances in which defendant's parole was denied are arbitrary and capricious . . . .

In the brief submitted by petitioner, he argued that the Panel had ignored his accomplishments at the Salem County Correctional Facility and at South Woods in problem resolution classes that focused upon conflict resolution, problem solving, responsible relationships, ethics, and anger management, as well as his "will to cooperate in his own rehabilitation." He noted that although the Panel had recognized his A.A. attendance and his waiting-list status for N.A. and behavior modification, it had also stated that he had not been involved in any special activities at South Woods, and he complained that long waiting lists precluded effective program participation. Further, petitioner complained that there had been no mention in the Panel's report of the results of psychological evaluations, and no consideration of a letter dated August 20, 2004 that he had submitted to the Panel.

A final administrative decision affirming the Panel's determination was issued by the State Parole Board on January 26, 2005. After setting forth petitioner's arguments, noting that the Panel had reconsidered petitioner's claim on December 22, 2004 and had not changed its view, and further noting the consideration of petitioner's position by the full Board, it found that the Panel "had appropriately considered the aggregate of all relevant material facts pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported their reasons for denying parole pursuant to N.J.A.C. 10A:71-3.18(f). The Board then affirmed the Panel's determination, stating in explanation:

Be advised that your program participation is a matter of record and was considered by the Panel. This is evidenced by the fact that the Panel noted as mitigation your participation in programs specific to behavior, as well as, average to above average institutional reports and attempt made to enroll and participate in programs but was not admitted. Therefore, your argument that the Panel violated the Board's Code of Professional Conduct by failing to consider your program participation lacks merit.

The full Board found that the Panel did not deny you parole based upon a lack of program participation as you contend. The Panel appropriately denied parole based upon the fact that you have an extensive and repetitive prior criminal record consisting of a total of nine convictions and you are presently incarcerated for a multi crime conviction. In addition, you have experienced prior incarceration and parole, resulting in a violation.

The Board found on the basis of the record before it (which included a psychological evaluation) that petitioner lacked insight into his criminal behavior and minimized his conduct, and it concurred with the Panel's determination in this regard. As a consequence, it affirmed the Panel's decision, finding that the Panel had "documented, by a preponderance of evidence, that there is a reasonable expectation that [petitioner] would violate the conditions of parole if released on parole at this time."

On appeal, we decline to address those issues raised by petitioner for the first time before us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We review petitioner's remaining contentions under an abuse of discretion standard, according the Board's actions a presumption of validity and reasonableness that petitioner must overcome in order to prevail. Hare v. N.J. Parole Bd., 368 N.J. Super. 175, 179-80 (App. Div.), certif. denied, 180 N.J. 452 (2004)(standard for review); McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)(burden of proof).

Our careful review of the record convinces us that petitioner has not met the burden imposed upon him in this matter. For that reason, we affirm, substantially for the reasons set forth in the Parole Board's final agency decision.

Affirmed.

 

(continued)

(continued)

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A-3169-04T5

MAY 11, 2006