WILLIAM R. GEIGER 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NOT FOR PUBLICATION WITHOUT THE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-4663-04T24663-04T2

WILLIAM R. GEIGER,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

________________________________________________________________

 

Submitted January 24, 2006 - Decided February 14, 2006

Before Judges Collester and Lisa.

On appeal from a Final Decision of the New Jersey State Parole Board, 60423.

William R. Geiger, appellant pro se.

Nancy Kaplen, Acting Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, William R. Geiger, a State Prison inmate, appeals from a final decision of the New Jersey State Parole Board (Board) denying him parole and imposing a seventy-two month future eligibility term (FET). We affirm.

Tried to a jury, appellant was convicted in 1977 of first-degree murder, N.J.S.A. 2A:113-1 and -2, and unlawful possession of a handgun without a permit, N.J.S.A. 2A:151-41. He was sentenced on December 9, 1977 to life imprisonment for murder, and a concurrent five-to seven-year term of the weapons offense.

The victim was appellant's estranged wife. For several months preceding the murder, appellant stalked her and threatened her. On one occasion, he accosted her in the parking lot at her place of employment, entered her car, placed a gun to her head and threatened to kill her and himself. He was arrested and charges were filed. Because he killed his wife several months later, and because her testimony was critical to the State's case, the charges were ultimately dismissed.

The homicidal act occurred on December 25, 1976. Appellant, who had been drinking, armed himself with a loaded revolver and followed his wife, her parents and her grandmother to Midnight Mass. His wife was living with her parents during the separation. She had filed for divorce. At the conclusion of the church services, appellant followed his wife and her family to their home. He approached his wife in the garage and fired five bullets into her head and chest at point-blank range. After being charged, appellant was released on bail and immediately absconded to Florida. He was apprehended and returned to New Jersey, where he was tried and convicted.

Appellant first became eligible for parole in 1991. He was denied parole and given a ten-year FET. He was again denied when he became eligible in 1996 and given a twelve-year FET. He then became eligible in 2002, after serving more than twenty-five years in prison. After an initial hearing, the hearing officer referred the matter to a Board Panel. On May 10, 2002, a two-member panel considered the matter and issued a decision denying parole and referring the case to a three-member panel for establishment of an FET. On May 28, 2002, appellant wrote a letter, as was his right under the applicable regulations, submitting arguments in mitigation with respect to the FET the three-member panel was to consider. He also urged reconsideration of the denial of his parole by the two-member panel.

After a lengthy delay, and without explanation, the two-member panel determined on March 21, 2003, to vacate its decision of May 10, 2002 and re-list appellant's case for a de novo initial hearing. The new initial hearing occurred on June 6, 2003, resulting in referral to a two-member panel. One of the members from the first panel was assigned, along with a different member. The two-member panel denied parole and referred the case to a three-member panel for establishment of an FET. In reaching its decision to deny parole, the two-member panel determined that appellant demonstrated insufficient problem resolution, including lack of insight into his criminal behavior, that he minimized his conduct, and demonstrated an insufficient resolution of his gambling addiction and substance abuse problem.

These determinations were based upon the panel interview and documentation in the file. The two-member panel reviewed but did not attribute significant consideration to confidential materials in the file, including psychological reports and letters from the victim's family and others opposing parole. Appellant had been previously placed in two halfway houses in 2001 and 2002, but was recalled, apparently for administrative reasons and not because of infractions, to the prison confines. The two-member panel did not consider that circumstance in reaching its determination.

The standard FET for an inmate denied parole who is serving a sentence for murder is twenty-seven months (plus or minus nine months). N.J.A.C. 10A:71-3.21(a)1, (c). However, where it is determined that the standard FET "is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior," a three-member panel may establish a longer FET. N.J.A.C. 10A:71-3.21(d). The criteria for the determination are set forth in N.J.A.C. 10A:71-3.11. Ibid. That section contains a non-exclusive list of twenty-three factors, which are the same factors applicable to the parole consideration itself.

The matter came before a three-member panel on April 14, 2004. That panel determined that defendant "failed to develop adequate and appropriate insight in recognizing issues that would return [him] to future criminal behavior," and that he "failed to develop adequate and appropriate insight in understanding the nature of [his] criminal personality characteristics that include rage, vindictiveness and addiction." The panel "found that setting any term less than a[] six year future parole eligibility term would be wholly inconsistent with the conclusion that, after twenty-seven years of incarceration, you have not made satisfactory progress in reducing the likelihood of future criminal activity."

Both the two-member and three-member panels recognized appropriate circumstances in mitigation, including that appellant was infraction-free since his only institutional infraction in 1989, that he had participated successfully in many programs, and had average to above-average institutional reports.

Appellant filed an administrative appeal to the full Board. On March 9, 2005, the Board affirmed the decision of the two-member panel to deny parole and of the three-member panel in establishing a seventy-two month FET. This appeal followed.

In reviewing the final decision of a state administrative agency, our function is to review the record and determine whether the agency's findings could reasonably have been reached on the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We will set aside an agency decision only "'if there exists in the reviewing mind a definite conviction that the determination below 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 Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988). The Board's decisions are "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359, certif. denied, 63 N.J. 583 (1973)), modified on other grounds, 167 N.J. 619 (2001). We will not set aside a decision that is factually supported by the record and not arbitrary, capricious or unreasonable. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

On appeal to this court, appellant presents the following arguments:

I. THE BOARD PANEL'S DECISION IS CONTRARY TO WRITTEN BOARD POLICY OR PROCEDURE.

II. THE BOARD FAILED TO CONSIDER MATERIAL FACTS AND PROPERLY WEIGH THE PREPONDERANCE OF EVIDENCE, THEREBY MAKING THE FINDING OF SUBSTANTIAL LIKELIHOOD I WOULD COMMIT A CRIME IF RELEASED ON PAROLE ERRONEOUS AND UNSUPPORTED BY FACT.

III. THE BOARD PANEL AND THE THREE MEMBER BOARD PANEL FAILED TO PROVIDE ADEQUATE REASONS FOR THEIR DECISION TO REACH BEYOND THE ESTABLISHED GUIDELINES AND IMPOSE A SEVENTY-TWO MONTH FUTURE ELIGIBILITY TERM.

IV. THE PROCEDURE IN WHICH THE STATE PAROLE BOARD CATEGORIZES AGGRAVATING FACTORS AND THE STANDARD FOR DEPARTURE FROM THE ESTABLISHED GUIDELINES VIOLATE THE BLAKELY V. WASHINGTON AND UNITED STATES V. BOOKER UNITED STATES SUPREME COURT HOLDING.

We have reviewed the record, and we find appellant's arguments lacking in sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). We are satisfied the reasons for denying parole and imposing the FET are supported by the record, and the Board's decision was not arbitrary, capricious or unreasonable. Therefore, we will not disturb the decision on appeal. We offer these brief comments.

Appellant contends there was an impropriety in removing one member of the initial two-member panel that heard his case. He speculates, we suppose, that the removed member was favorable to his position. There is no such evidence in the record. There is nothing in this record to suggest there was a lack of unanimity between the two members of the original panel. Nor is there any requirement that the same two members sit on a de novo review panel.

Appellant contends the panels that heard his case failed to consider information favorable to him, including psychological reports that he believes were favorable, his successful residence in halfway houses, and letters written on his behalf. We reject this argument. The Board is charged with the responsibility of considering all relevant evidence, attributing qualitative weight to the various aspects of the evidence, and balancing all of the evidence to reach an overall decision. We find no impropriety in the Board's consideration of evidence.

We reject appellant's argument that the three-member panel and the Board failed to supply adequate reasons or follow the regulations in setting his FET at seventy-two months. The panel and the Board considered relevant factors and adequately explained their reasons.

 
Finally, there is no merit to appellant's contention that the procedure for an above-standard FET is unconstitutional under the principles of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). The principles in those cases deal with the right to a trial by jury. That issue is not implicated in this administrative proceeding where there is clearly no right to a jury determination.

Affirmed.

The Title 2A provisions were repealed in 1979. See N.J.S.A. 2C:98-2.

(continued)

(continued)

9

A-4663-04T2

February 14, 2006