JAMES HYSON 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NOT FOR PUBLICATION WITHOUT THE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-2693-07T22693-07T2

JAMES HYSON,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

______________________________

 

Submitted: December 17, 2008 - Decided:

Before Judges C.L. Miniman and King.

On appeal from a final decision of the New Jersey State Parole Board.

James Hyson, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Inmate James Hyson appeals a final decision of the New Jer sey State Parole Board (Board) denying him parole and imposing a sixty-month future eligibility term (FET). We remand for fur ther consideration in light of Hyson's twenty-two year spotless institutional record.

I.

Hyson, born April 11, 1952, has a criminal history begin ning as a juvenile when he was sentenced to two probationary terms, one term of incarceration. He was subsequently paroled on April 13, 1970. As an adult, he was convicted of five offenses between January 4, 1971, and February 20, 1974, and had parole revoked twice. Two of the five offenses were indictable convictions. His sixth offense was the rape, robbery, and fel ony murder of a seventy-nine-year-old woman on April 5, 1974. Hyson pled guilty to murder and all other charges were dis missed. He was sentenced to twenty-five to twenty-seven years in prison and was paroled on December 15, 1981, with a maximum expiration date of June 28, 1991.

About four months after he was paroled, Hyson hitchhiked home from work after drinking whiskey and beer in a bar in Mill ville. After he was dropped off near his home, he observed an elderly woman clearing brush from her yard. Hyson approached her, struck up a conversation, and offered to assist with the yard work. She declined and turned to enter her home, but Hyson followed and asked her for a drink of water. The woman instructed him to use the outside spigot and said she would bring him a glass. However, when she opened the door, Hyson grabbed her, forced her onto the couch, put his hand over her mouth, removed her underwear, raped her, and robbed her. Later that day, Hyson was arrested and charged with bur glary, making terroristic threats, aggravated sexual assault, sexual assault, and robbery. On August 23, 1982, he pled guilty to burglary, aggravated sexual assault, and robbery; the remain ing charges were dismissed. He was later sentenced to a term of life imprisonment with no minimum term for aggravated sexual assault and fifteen concurrent years for robbery. His parole was not revoked.

Hyson first became eligible for parole in 1997. The Board denied parole and imposed a ten-year FET, less credits received. The Board again denied him parole in 2002, 2003, and 2005, each time imposing three-year FETs. The Board explained that these denials were based upon Hyson's extensive past criminal record, parole violations, confidential reports, and failure of prior incarceration/parole to deter future criminal behavior. Each denial generally recommended that Hyson participate in substance abuse counseling, one-to-one counseling, group counseling, institutional programs geared towards curbing criminal behavior, and remain infraction free.

Hyson complied with these recommendations, and has been infraction-free since 1986. He states that he has maintained sobriety from alcohol and drugs since 1993, and from all sub stances including smoking since 1997. Since 1986, he has attended over 150 rehabilitative groups and courses, e.g., focus on the victim (2006), moral recognition (2006), and anger man agement (2005). Hyson has enrolled in psychological counseling, in both one-to-one and group sessions. He has become involved with church services, and assists as a peer leader and a mentor to other inmates in many of his rehabilitative classes, includ ing Narcotics Anonymous and Alcoholics Anonymous. Hyson has completed eighteen college credit hours, and has received cer tificates from the New Jersey and United States Departments of Labor for completing a cement mason apprenticeship program. He has assisted with multiple capital improvement projects at Southern State Correctional Facility, and has received many let ters of commendation and reference from state administrators, social workers, and clergy. He states that he is engaged to one of his former social workers, who lives in Elmwood Park, and hopes to marry her if he is released from prison.

Hyson received his fifth and latest parole hearing on November 20, 2006, before a two-member panel of the adult Board. The two-member panel denied parole and referred the case to a three-member panel to consider imposition of an FET outside the guidelines of twenty-seven months codified under N.J.A.C. 10A:71-3.21(a)1. The three-member panel imposed a sixty-month FET and issued a twenty-six-page Notice of Decision (Notice) on March 27, 2007, detailing the reasons for the denial.

The Notice comprehensively recited Hyson's past offenses and two parole violations. The panel placed a variety of Hyson's responses to questions posed at the hearing on the record, focusing for the most part on crimes committed in the 1970s and 1980s and his past substance-abuse problems. When asked why he "inflicted his anger immediately" on his 1982 sep tuagenarian victim, Hyson responded "I think that you . . . are trying to have a rational answer for irrational behavior . . . and I really can't tell you that." The panel also posed a hypo thetical question in which Hyson came home to find his girl friend with another man. Hyson responded that he would pack his bags and leave, which the panel characterized as "run[ning] away from the problem[, which] is consistent with how you handled your problems your entire life."

The panel then explained it was denying parole because, throughout Hyson's twenty-five years of incarceration, he "failed to appropriately and adequately address the causes of [his] criminal behavior through specific program participation or by other methods," and that he was "unable to demonstrate remorse and empathy for the victims of [his] violent offenses." The panel found Hyson's proposed parole plan of placement in a halfway house or, barring that, living with his fiancée and seeking work as a cement mason when released, was inadequate. It concluded that parole was not appropriate because prior opportunities on probation and parole had failed to deter Hyson's criminal behavior and had been violated in the past; that Hyson had insufficient problem resolution; that he was har boring his problems internally and had a lack of empathy and concern for others, demonstrated by the panel's interview; that he had a lack of an adequate parole plan; and confidential psy chological reports and a risk assessment demonstrated he was a "high risk" for recidivism.

With regard to mitigating factors, the panel found that Hyson had participated in institutional programs specific to his behavior; had average to above average institutional reports; had a favorable institutional adjustment; had achieved minimum-custody status; and had not had a disciplinary infraction since 1986. Notably, only about two-thirds of a page in the twenty-six-page Notice was dedicated to summarizing, albeit incom pletely, Hyson's two decades of therapeutic, academic, voca tional, and volunteer achievements. The Notice also did not explain why the panel found a sixty-month FET was necessary when the three previous parole denials had all imposed thirty-six-month FETs and Hyson had complied with their recommendations almost to the letter.

Unsatisfied with the panel's explanation of his parole denial, on May 31, 2007, Hyson submitted an Initial Administra tive Parole Appeal to the Board's Appeals Unit, requesting reconsideration. The Appeals Unit denied this request substan tially for the same reasons contained in the Notice. It noted that the denial of Hyson's request to be released to a halfway house as part of his parole plan was not an appealable issue pursuant to N.J.A.C. 10A:71-4.1.

Hyson next appealed to the full Board. On December 20, 2007, the Board upheld the panel's determination, again for sub stantially the same reasons contained in the Notice. The final administrative decision denied parole and implemented the sixty-month FET. This appeal followed.

II.

Hyson raises the following issues on appeal:

POINT I -

BOARD PANEL VIOLATED THE EX POST FACTO CLAUSE ART. I 10 OF THE U.S. CONST. UTILIZ ING A "RISK ASSESSMENT INSTRUMENT" AS APPEL LANT IS STRUCTURED UNDER THE PAROLE ACT OF 1979, L.1979, c 441 [sic], 1.

POINT II -

BOARD PANEL DECISION TO DENY PAROLE IS NOT BASED UPON PAROLE STATUTES AND ADMINISTRA TIVE REGULATIONS WHICH INFRINGED UPON APPEL LANTS [sic] CONSTITUTIONAL RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE U.S. CONSTITUTION AMENDMENT FOURTEEN.

POINT III -

BOARD PANEL MEMBERS ARE REACHING TO DETER MINE FACTORS UNSUPPORTED BY T HE [sic] RECORD AND OMITTED ON PREVIOUS DENIALS AND IN DOING SO VIOLATED THE CLEAR LANGUAGE OF THE PAROLE ACT OF 1979.

POINT IV -

BOARD PANEL FINDING THAT APPELLANT POSSESSES A SUBSTANTIAL LIKELIHOOD TO COMMIT ANOTHER CRIME IF RELEASED UPON PAROLE IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE.

Our review of a parole determination is limited to deter mining whether the Board acted arbitrarily or abused its discre tion. In re Hawley, 98 N.J. 108, 112 (1984); Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971); Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The burden of demonstrating that the agency's action was arbitrary, capricious, or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med. Asst. & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)). "Administrative actions, such as parole deci sions, must be upheld where the findings could reasonably have been reached on the credible evidence in the record." Ibid. (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

Parole decisions are highly "'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359, certif. denied, 63 N.J. 583 (1973)). The "Board 'has broad but not unlimited discretionary powers'" when making a parole determination, provided they scrutinize and consider the record as a whole. See Trantino v. N.J. State Parole Bd., 166 N.J. 113, 124, 189 (quoting Monks, supra, 58 N.J. at 242), modi fied on other grounds, 167 N.J. 619 (2001) (Trantino VI). Relief from a Board's decision to deny parole is clearly encompassed within the province of judicial review. Id. at 173.

Hyson was convicted on his current offenses in 1982, which places him within the purview of the Parole Act of 1979, enacted as L. 1979, c. 441, and codified at N.J.S.A. 30:4-123.45 to -123.69. See Trantino VI, supra, 166 N.J. at 124. The act provided in relevant part:

a. An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report pursuant to section 10 of this act or devel oped or produced at a hearing held pursuant to section 11 of this act indicates by a preponderance of the evidence 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. In reaching such determination, the board panel or board shall state on the record the reasons therefor.

[Parole Act of 1979, L. 1979, c. 441, 9 (current version at N.J.S.A. 30:4-123.53) (emphasis added).]

Hyson argues that the Board's decision was unsupported by sufficient credible evidence in the record. He states that each time he has appeared before the Board, it "either reached for factors to deny parole not found within the record, or has cre ated factors with the sole purpose to deny parole." Specifi cally, Hyson attacks the Board's determination that his parole plan was inadequate; that he was harboring problems internally; and that he lacked insight into his criminal behavior. He con tends that he has "far exceeded the established test for parole fitness" and that the Board did not seriously consider his plethora of institutional accolades, participation in rehabili tation programs, and twenty-two-year infraction-free prison ten ure. He argues that the holding in Trantino VI requires the Board to apply L. 1979, c. 441, 9, to all the evidence in the record, not simply that which supports its position. We agree.

In Trantino VI, our Supreme Court reversed a final decision from the Board denying parole to an inmate who had brutally mur dered two Lodi police officers in 1963. Id. at 122-23. Tran tino had been sentenced to death, although the Court's decision in State v. Funicello, 60 N.J. 60, 67-68, cert. denied sub nom, New Jersey v. Presha, 408 U.S. 942, 92 L. Ed. 2d 2849, 33 S. Ct. 766 (1972), abrogated that sentence to life in prison. Trantino VI, supra, 166 N.J. at 124. As a result, Trantino initially became eligible for parole in 1979. Id. at 126. The Board denied that application as well as every other application until its penultimate 1998 denial that was the subject of Trantino's appeal. Id. at 120, 126. The Board's stated reasons for the 1998 parole denial were: (1) Trantino's plan to write a book about the slayings; (2) his lack of candor to the Board; (3) failure to address in psychological counseling the issues that led to domestic abuse of his first wife; (4) his lack of a suit able parole plan; (5) and negative aspects adduced from multiple psychological profiles. See id. at 142-166. Like Hyson, Tran tino's parole was governed by the Parole Act of 1979. Id. at 125-26, 172.

In its review, the Trantino VI Court noted that the Board gave "extraordinary reliance" to one expert's negative opinion, selecting it from a long list of generally positive expert opin ions. Id. at 174. The Court reiterated its concerns about "the perils of undue reliance by courts and agencies on expert testi mony and the impropriety of abdicating decisional responsibility to experts." Ibid. The Court further admonished the Board for its failure to address

substantial evidence in the record, spanning many years of infraction-free incarceration and favorable psychological evaluations, that demonstrated Trantino's likelihood of success on parole. See [State ex rel.] C.A.H. & B.A.R., [ 89 N.J. 326,] 344 n.5 [(1982)] ("[W]hile expert opinion on reha bilitative prospects is helpful or important in a waiver hearing . . . [s]uch opinion evidence cannot be a substitute for the [tribunal's] ultimate, highly discretionary decision, reached through an application of the statutory criteria to all of the relevant evidence . . . ).

[Trantino VI, supra, 166 N.J. at 189.]

With regard to Trantino's "lack of parole plan," the Court observed that he

contemplated living in the Camden/Cherry Hill area, finding work, attending classes at Rutgers, going to AA meetings, and seeking counseling. To the extent, however, that the Board determined that this parole plan was not "sufficient," we note the impracticability of the Board's assumption that an inmate imprisoned by the State for thirty-seven years could be expected to develop on his own a detailed and precise plan for his daily activities in the event of parole. The Board's own regulations appear to recognize that a parole plan should not be a decisive factor in the Board's parole decision, including an inmate's "parole plans" as only one of twenty-three factors to be considered by the Board in deciding whether to grant parole. See N.J.A.C. 10A:71-3(b)14.

[Id. at 182-83.]

Consequently, the Court found that Trantino had a "consti tutionally protected right to parole" unless the State could prove a substantial likelihood of criminal recidivism. Id. at 197. Holding that the Board had failed to consider the record as a whole and gave inappropriate and arbitrary weight to evi dence favorable to its decision, the Court ordered Trantino to be released on parole, subject to a successful twelve-month halfway house placement. Id. at 197-98. We find these principles applicable here.

As Trantino VI explained, the Board must consider all the evidence in applying the statutory standard. Id. at 189. Cer tainly it cannot be denied that the record contains an exhaus tive laundry list of Hyson's many crimes and negative psycho logical evaluations and risk assessments. The Board expends great effort detailing Hyson's many flaws and crimes over the course of approximately twenty-four and one-third pages of its twenty-six page Notice. However, the record as a whole consists of more.

Hyson has remained infraction-free for over twenty-one years. He has availed himself of a multiplicity of vocational, academic, and rehabilitative programs since his incarceration, and has positively impressed the various clergy, social workers, and administrative officials that have worked with him. Hyson has devised a parole plan requesting entry to a halfway house program, and failing that, living with his fiancée and working as a cement mason.

The Board's inaccurate and incomplete summary of Hyson's accomplishments leaves us with serious doubt as to whether it considered the whole record. See Trantino VI, supra, 166 N.J. at 189. The Board has failed to present any meaningful discus sion of Hyson's many accomplishments and the praise he has received from a wide variety of sources. Indeed, the Notice fails even to list many of these mitigating factors in its cur sory summation. Furthermore, the Board's bald statement that classified material played "a significant role" in the FET determination is disturbing. The majority of Hyson's evalua tions contained in the Board's confidential appendix find their genesis in isolated psychological interviews and tests by eight different professionals, only two of which saw defendant more than once. This stands in stark contrast to the letters of com mendation from social workers and officials that have become familiar with Hyson over months and years. Weighing this latter evidence against Hyson's psychological interviews and past criminal history is required under Trantino VI's mandate to review the record as a whole. Ibid.

We are particularly concerned about the weight that may have been given to the Static 99 and related actuarial testing. Given Hyson's static variables, his total Static 99 score can never be less than one point lower than it is now, absent sex-offender treatment. In fact, the score on variable # 13 is cer tainly questionable in light of his institutional history since 1986. There is a presumption of parole applicable to Hyson's incarceration, Parole Act of 1979, L. 1979, c. 441, 9, which can only be overcome "by a preponderance of the evidence there is a substantial likelihood that the inmate will" reoffend. Because of the paucity of discussion regarding Hyson's mitigat ing factors, and a weighing of the evidence, we cannot say with any certainty that the Board has scrutinized the entire record in making its final decision to deny parole.

Consequently, we remand this matter to the Board for fur ther proceedings consistent with this opinion. The Board shall have thirty days to review and redetermine parole in accordance with this opinion. In doing so, the Board cannot deny parole simply because Hyson is a sex-offender in need of treatment. That treatment must be given or he must be released on parole so that the Attorney General can institute an action for involun tary commitment. If the Board decides that parole is not war ranted after considering the record as a whole, it shall state its reasons for so finding in writing and with adequate specificity.

III.

Although our holding in this case obviates the need to address Hyson's remaining points on appeal, we add the following brief comments on the Board's determination to impose a sixty-month FET. Because Hyson is serving a life sentence for aggra vated sexual assault, the following regulatory provision governs:

(a) Upon determining to deny parole to a prison inmate, a two-member adult Board panel shall, based upon the following sched ule, establish a future parole eligibility date upon which the inmate shall be primarily eligible for parole.

1. Except as provided herein, a prison inmate serving a sentence for murder, man slaughter, aggravated sexual assault or kid napping or serving any minimum-maximum or specific sentence in excess of 14 years for a crime not otherwise assigned pursuant to this section shall serve 27 additional months.

[N.J.A.C. 10A:713.21(a)1.]

Thus, the standard FET upon denial of parole is twenty-seven months. Ibid. However, the Board has the discretion to add or subtract nine months when, "in the opinion of the Board panel, the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate warrant such adjustment." N.J.A.C. 10A:71-3.21(c). If the standard twenty-seven-month FET, plus or minus nine months, is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the future likelihood of future criminal behavior," a three-member Board panel must con sider the factors enumerated at N.J.A.C. 10A:71-3.11 when establishing an FET that differs from the administrative guidelines. See N.J.A.C. 10A:71-3.21(d).

The Board set forth its specific reasons for the sixty-month FET as: (1) Hyson continuing to pose a "substantial threat" to public safety; (2) his failure to "adequately address the causes of [his] criminal behavior through specific program participation or by other methods"; (3) his lack of remorse and empathy for his victims; (4) his lack of an adequate parole plan; (5) "insufficient problem resolution"; and (6) a "document classified as confidential." These findings, the Board con tends, are sufficient to support its determination that a thirty-six-month FET is "clearly inappropriate."

With the exception of Hyson's first parole denial in 1997, which imposed a ten-year FET, Hyson's previous three parole denials have all imposed thirty-six-month FETs within the dis cretionary guidelines. See N.J.A.C. 10A:713.21(a)1; N.J.A.C. 10A:71-3.21(c). The Board's 2002 Notice of Decision recommended that Hyson continue substance abuse counseling; institutional programs geared towards criminal behavior; and continue one-to-one counseling. As Hyson points out, he complied with these recommendations and remained infraction free. The 2003 Notice of Decision reiterated the same recommendations; Hyson again complied. The 2005 Notice of Decision eliminated the substance abuse counseling recommendation, but otherwise was the same. Once more, Hyson complied with the Board's recommendations.

After reviewing the record on appeal, the Board's finding that a thirty-six month FET was "clearly inappropriate" in its latest parole denial rings hollow to us. The only "new" evi dence adduced between Hyson's 2005 parole hearing and the cur rent appeal were a sex offender risk assessment and two mental health evaluations, all of which were largely congruent with, or better than, each of Hyson's 2003 evaluations and risk assess ments. While it is true the Board may consider the record as a whole and not just new evidence, cf. Trantino v. N.J. State Parole Bd., 331 N.J. Super. 577, 609-610 (App. Div. 2000), modi fied on other grounds, 166 N.J. 113 (2001), the Board must still give a plausible explanation why a thirty-six-month FET is "clearly inappropriate." See N.J.A.C. 10A:71-3.21(d). Simply summing up static factors and stating that Hyson continues to be a "substantial risk" to society does not meet this strict test, particularly when he has complied with each prior recommenda tion. These factors may clarify why an extra nine-month discre tionary term on top of the standard twenty-seven-month FET is justified. However, they do little to illuminate why the stan dard FET, plus or minus nine months, was not appropriate. The Board at minimum should have explained why a thirty-six-month FET was "clearly inappropriate" this time around when it was adequate in the previous three parole denials.

 
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

The victim died of a heart attack caused in part by the rape.

Hyson has a very long history of alcohol abuse.

Hyson also was sentenced to a seven-year custodial term for burglary and received a $10,000 VCC penalty. The VCC penalty was later abrogated to $25 and the burglary charge was vacated in light of the opinion handed down in State v. Kovack, 91 N.J. 476 (1982).

The Parole Act was amended in 1997 by L. 1997, c. 213. Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 41 n.2 (App. Div. 2003). However, because Hyson's conviction occurred prior to the amendment, the 1979 version controls. See ibid.

The Board contends that the request to be released to a halfway house program is "not an appealable issue as it fails to meet the criteria for appeal pursuant to N.J.A.C. 10A:71-4.1." N.J.A.C. 10A:71-4.1(a)1 allows an inmate who has been denied parole to appeal on the grounds that the "Board panel failed to consider material facts." N.J.A.C. 10A:71-4.1(a)2 in turn allows an inmate who committed an offense prior to 1997 to appeal based upon the Board's failure "to document that a preponderance of the evidence indicates a substantial likelihood that an inmate will commit a crime if released on parole." As the Board is required by its own regulations to consider a parole plan when deciding whether to release an inmate, see N.J.A.C. 10A:71-3.11(b)14, we see no reason why Hyson would be precluded from appealing the Board's denial of his request to be released to a halfway house, as it is an integral component of his parole plan. Cf. Trantino VI, supra, 166 N.J. at 182-83.

(continued)

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A-2693-07T2

April 21, 2009