ROLAND GEBERT 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NOT FOR PUBLICATION WITHOUT THE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-6257-04T16257-04T1

ROLAND GEBERT,

Petitioner-Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent-Respondent.

_________________________________________________

 

Submitted March 21, 2006 - Decided July 12, 2006

Before Judges Skillman and Payne.

On appeal from a Final Decision of the

Department of Corrections.

Roland Gebert, appellant, filed a pro se

brief.

Zulima V. Farber, Attorney General,

attorney for respondent (Patrick DeAlmeida,

Assistant Attorney General, of counsel;

Lisa A. Puglisi, Deputy Attorney

General, on the brief).

PER CURIAM

Petitioner Roland Gebert appeals from a decision of the New Jersey State Parole Board denying him parole and establishing a six-year future eligibility term (FET). He was convicted of a premeditated murder for hire, contrary to N.J.S.A. 2A:113-1 and -2, that took place when he was seventeen years old, and was sentenced to life in prison on November 21, 1979.

The record discloses that Gebert and his friends lured a seventeen-year-old female victim into a car and then into a wooded area, where Gebert forced her to strip, carved an N on her back, raped her, and slit her throat. She died in a nearby lake. While awaiting trial, he and three other inmates conspired to escape from custody. The plan was discovered, and petitioner was found guilty by a jury of conspiracy to escape pursuant to N.J.S.A. 2A:91-1 and -2. On April 3, 1981, he was sentenced to two to three years in custody on the charge, to be served consecutively to his life term.

Petitioner's application for parole was considered and denied by the State Parole Board on March 22, 2001 and on March 5, 2002, and on both occasions parole was denied, and a three-member adult panel of the Parole Board established a fifteen-year FET for his case.

Following a postponement requested by petitioner, his parole (which is considered on a yearly basis) was again considered by a hearing officer on September 16, 2004 and referred to a two-member Board panel, which met with defendant on October 19, 2004. Based upon its interview, documentation in the case file, and confidential information, the panel denied parole and referred petitioner's case to a three-member panel to determine whether to set a FET outside guidelines established in N.J.A.C. 10A:71-3.21(a) and (c).

The two-member panel that denied parole found that there was a substantial likelihood that petitioner would commit another crime if released on parole at the time. The panel recognized as mitigating factors petitioner's minimal criminal record before the murder, the fact that he had remained infraction free for a substantial period while in custody, his participation in institutional programs and in programs specific to his behavior, his average to above average institutional reports, his favorable institutional adjustment, his present minimum custody status, and the restoration of his commutation time. However, it based its denial in part on petitioner's prior criminal record, the increasingly serious nature of his crimes, his present incarceration for multiple crimes, his commission of a crime while incarcerated, and the fact that probation had not deterred his criminal behavior. Of particular significance, the panel found that petitioner lacked insight into his criminal behavior, minimized his conduct, and had insufficiently addressed his substance abuse problem. The panel recommended participation in substance abuse counseling, behavior modification and one-on-one counseling.

In a lengthy decision dated April 27, 2005, a three-member adult panel established a six-year FET. In the course of that decision, the panel enumerated petitioner's statements regarding the motives for murder, including money; the challenge of the act, which he viewed as a sporting event; the fact that he did not wish to appear as a coward; his desire for peer acceptance; his lack of personal connection with the victim; and childhood trauma occurring when his dog was euthanized because of illness. The panel also enumerated petitioner's statements regarding insight into his motives for committing the crime, including lack of self-esteem, anger directed to a physically abusive father, his lack of emotion, and his youth. The panel reported petitioner's statements that he now recognized that others regarded his crime as shocking, that he had been insensitive and stupid to commit it, and that he appreciated the effect of murder not only on the victim but also on family members and friends. However, it also reported petitioner's admission that he still regarded himself as manipulative.

The panel additionally recorded petitioner's statements of remorse, and that he had written to the victim's family to apologize, but then reported that after telling the story of the murder so many times, petitioner admitted that it was "hard to show emotion every single time." As a final matter, the panel set forth petitioner's admission that he had a previous, long-lasting, alcohol and drug problem, his participation in Alcoholics Anonymous since the Parole Board "demanded" that he do so in its last decision, and his intention to obtain a sponsor upon release.

Based upon that record, the panel concluded that petitioner lacked sufficient insight, stating:

It is the belief of the Board panel that you continue to exhibit a lack of insight into why you would commit such a horrible crime. It is apparent that you have attempted explaining your insight, not from a perspective of true self-exploration, rather, for garnering a favorable parole decision. Anger apparently stemming from your relationship with your father, immaturity, a dislike of yourself and others does not explain why you murdered [the victim] in a specific manner. The statements that you made during your parole hearing clearly displace reasonable insight.

The panel explained its conclusion by noting the "dispassionate matter-of-fact demeanor" that petitioner displayed when discussing the crime and the lack of emotion that petitioner admitted to possessing. "Whether or not you took pleasure in [torturing the victim] or whether you had no feelings at all, could not be determined" at the hearing, it said. However, the panel concluded on the basis of its observations that there remained within petitioner "a criminal characteristic" that petitioner had not addressed, and that he was "very capable" of committing another crime.

In addition to the foregoing, the panel found that petitioner had minimized his criminal conduct by pointing to the conduct of a co-defendant, that petitioner had committed the crime of attempted escape while in custody, and it found that petitioner's substance abuse problem had not been sufficiently addressed and that, in light of his claim of substantial prior substance abuse, he required continuous participation in "some formal process" dealing with the abuse, and most particularly, relapse prevention. Petitioner's "excellent" institutional housing and work reports, his apology to the family, his participation in Alcoholics Anonymous in 2004, psychological evaluations, and various other materials were noted as mitigating factors.

In a decision dated August 3, 2005, the full Parole Board affirmed the two-member panel's October 19, 2004 determination to deny parole and to refer the case to a three-member panel for establishment of a FET, as well as the three-member panel's May 5, 2005 decision to establish a six-year FET.

On appeal, petitioner presents the following arguments in a pro se brief.

POINT I

JURISDICTION OF THIS MATTER LIES IN THE SUPERIOR COURT, APPELLATE DIVISION, FOR REVIEW AND CONSIDERATION OF CONSTITUTIONAL, STATUTORY, AND ADMINISTRATIVE VIOLATIONS IMPOSED ON PETITIONER, BY THE N.J. STATE PAROLE BOARD.

POINT II

DEFENDANTS' FAILURE TO COMPEL CRUCIAL RELEVANT EVIDENCE AS TO PETITIONER'S ADDICTION, AND MAKE A DETERMINATION TO DENY PAROLE OR COMMUNITY PLACEMENT IS ARBITRARY AND CAPRICIOUS, AND VIOLATES STATUTORY STANDARDS SET FORTH PURSUANT TO THE NEW JERSEY PAROLE ACT OF 1979.

POINT III

DEFENDANTS' UNWRITTEN POLICY TO ACCEPT LIMITED EVIDENCE AS TO PETITIONER'S ADDICTION PROGRESS IS DISCRIMINATORY AND VIOLATES HIS DUE PROCESS PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION; THE AMERICANS WITH DISABILITIES ACT; 43 U.S.C.A. 12131; REHABILITATION ACT 29 AND U.S.C.A. 794; AND THE N.J. PAROLE ACT OF 1979.

POINT IV

DEFENDANTS' DECISION TO DENY PAROLE WAS BASED ON SELECT EVIDENCE, AND NON-EVIDENCE, AS OPPOSED TO COMPREHENSIVE REVIEW OF PLAINTIFF'S ENTIRE INSTITUTIONAL RECORD.

POINT V

THE LACK OF CLEAR OR IMPLIED LANGUAGE UNDER N.J.S.A. 30:4-123.56 OR N.J.A.C. 10A:71-3.21(a)(c) and (d) INVALIDATES DEFENDANTS' ACTION "OUTSIDE THE GUIDELINES."

In a reply brief, petitioner additionally asserts:

POINT I

THE UNWRITTEN POLICY PRACTICED BY RESPONDENTS THAT CIRCUMVENTS CRUCIAL EVIDENCE SPECIFIC TO APPELLANT'S DISEASE OF ADDICTION FROM BEING PRODUCED VIOLATES APPELLANT'S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION; NEW JERSEY STATUTES; AMERICANS WITH DISABILITIES AND REHABILITATION ACTS; AND STANDARDS UNDER THE NEW JERSEY PAROLE ACT.

THE DECISION MADE BY RESPONDENTS TO IMPOSE A FET OUTSIDE THE GUIDELINES OF THE PROVISIONS SET FORTH AT N.J.S.A. 30:4-123.56 OR N.J.A.C. 12a:71-3.21 (a)(b) and (d), IS STATUTORILY UNCONSTITUTIONAL.

We affirm.

I.

Our careful review of the materials contained in the record satisfies us that petitioner's arguments regarding the substantive basis for the denial of parole and the establishment of a six-year FET lack merit, that the Board properly considered the aggregate of all pertinent factors in reaching its conclusion, Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 360 (1973), including those set forth in N.J.A.C. 10A:71-3.11(b), and it did not abuse its discretion in affirming the panel's denial of parole and its establishment of a FET beyond presumptive guidelines. Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 41-42 (App. Div. 2003). In reaching that conclusion, we are mindful of the presumption of validity and reasonableness that accompanies the Board's decision. Alevras v. Delanoy, 245 N.J. Super. 32, 35 (App. Div. 1990), certif. denied, 126 N.J. 330 (1991). We also recognize that the Board's decisions constitute highly "individualized discretionary appraisals," Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001), and that its discretionary determinations of the likelihood of reoffense are not to be lightly disturbed. Id. at 173.

Because petitioner's offenses were committed before August 19, 1997, the standard of parole is that he shall be released unless "by a preponderance of the evidence . . . there is a substantial likelihood that [petitioner] will commit a crime if released on parole at such time." N.J.S.A. 30:4-123.53(a).

In reaching the conclusion that the standard for denial of parole had been met and that a six-year FET should be imposed, the three-person panel, in a decision affirmed by the Board, properly focused upon petitioner's inability to identify and articulate the underlying reasons for his premeditated torture and slaying of a young woman, thereby demonstrating a lack of insight; upon his lack of remorse; and upon his history of "minimal interest" in participating in substance abuse programs directed at avoiding a relapse into use of drugs and alcohol, as well as his attempted escape while awaiting trial. On appeal, petitioner challenges principally that panel's discussion of his history of substance abuse and its conclusion that he has inadequately addressed the need to guard against relapse.

While petitioner appears to be correct that his history reflects sixteen years without evidence of the use of drugs or alcohol, in light of his prior substantial history of drug and alcohol use, we do not find that the panel abused its discretion in recommending continuing attendance in Alcoholics

Anonymous beyond petitioner's six-month participation in the program at the time of his hearing, in order to avoid relapse, or in noting and relying upon petitioner's reluctance to participate in such a program until ordered to do so in 2004.

We find no basis in the record for petitioner's claim that he has been discriminated against as the result of his addiction, and do not find that his arguments in this regard have sufficient merit to warrant discussion in a written opinion. R. 2:11-3e(2).

Moreover, we find a substantial basis in the record for the panel's conclusion, affirmed by the Board, that petitioner has, to date, exhibited insufficient insight into his criminal behavior and remorse for his acts. Given the nature and circumstance of the crime, those conclusions provide compelling grounds for a denial of parole and the establishment of a six-year FET. The panel and Board were within their discretion in determining that, although petitioner's institutional record has been good, at least in the past sixteen years, and his psychological evaluation of October 8, 2004 was more favorable than others had been, thereby entitling him to a reduction of his FET from that previously established, his record when viewed in the aggregate remains insufficiently positive to warrant parole at this time.

II.

We find no merit in petitioner's argument that his FET was improperly established. N.J.A.C. 10A:71-3.21(d) permits a three-member board panel to impose a FET that differs from the presumptive schedule if that schedule is clearly inappropriate as the result of the inmate's lack of progress in reducing the likelihood of future recidivism. In reaching its conclusion, the panel must consider the factors enumerated in N.J.A.C. 10A:71-3.11 that pertain to eligibility for parole. The panel acted in a procedurally appropriate fashion in that regard.

We find none of petitioner's additional arguments to be of sufficient merit to warrant discussion in a written opinion. R. 2:11-3e(2).

The determination of the Parole Board to deny parole and establish a six-year FET is affirmed.

 

We find no evidence in the record of any reliance upon an August 2004 MMPI test that petitioner claims did not occur.

(continued)

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A-6257-04T1

July 12, 2006