THOMAS W. BAILIFF 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NOT FOR PUBLICATION WITHOUT THE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-0213-08T10213-08T1

THOMAS W. BAILIFF,

Appellant,

V.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_______________________________

 

Argued January 12, 2010 - Decided

Before Judges Wefing, Messano and LeWinn.

On appeal from the New Jersey State Parole Board.

Stanley F. Werse argued the cause for appellant.

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).

PER CURIAM

Thomas W. Bailiff appeals from the August 6, 2008 final decision of the New Jersey State Parole Board (Board), denying his application for parole and setting a sixty-month future eligibility term (FET). We affirm the denial of parole but reverse the sixty-month FET and remand that determination for further proceedings.

In 1982 three indictments were returned against appellant. The first charged him with purposeful and knowing murder, N.J.S.A. 2C:11-3; the second charged him with robbery, N.J.S.A. 2C:15-1; and the third charged him with theft from the person, N.J.S.A. 2C:20-2(b)(2)(d). Appellant went to trial on the latter two charges and was convicted of the lesser-included charge of theft on the robbery indictment and of the theft from the person charge. He entered a plea of guilty to the murder indictment.

On January 21, 1983, defendant was sentenced on all three convictions as follows: (1) a term of life imprisonment with a twenty-year parole ineligibility period on the murder charge; and (2) two concurrent terms of five years of imprisonment with a two-and-one-half-year parole ineligibility period on the theft charges.

At appellant's first parole hearing in March 2002, the panel denied parole and established a thirty-six month FET. In April 2004, parole was again denied and a sixty-month FET was imposed.

On March 12, 2007, appellant appeared before a two-member Board panel, which denied parole and forwarded the case to a three-member panel to establish the FET. In its Notice of Decision, the two-member panel erroneously identified appellant's matter as a "2A Case" (referring to the predecessor statute to the current criminal code, now codified at N.J.S.A. 2C:1-1 to 104-9). At some point, the two-member panel issued an amended Notice of Decision, backdated to March 12, 2007, correcting the designation of appellant's case as a "2C Case."

The three-member panel issued a decision on September 19, 2007, establishing a sixty-month FET. The panel reviewed the facts surrounding appellant's murder charge as well as his participation in various programs and educational courses during his incarceration, and reached the same conclusions as the two-member panel.

Regarding the murder offense, the panel noted that appellant and a co-defendant enticed a female into their vehicle, drove for a while during which appellant, who was under the influence of "[a]lcohol, marijuana and mescaline[,]" engaged in sex with the female. Appellant then experienced a hallucination in which the female appeared to him as his former girlfriend with whom he had just broken up and for whom he "had a lot of hatred[,]" and he fatally stabbed her.

In its decision, the panel noted that appellant was "presently incarcerated for three (3) offenses in regards to three (3) separate incidents." The panel concluded that those three offenses "demonstrated [appellant's] choice to commit separate distinct criminal acts."

The panel determined that appellant "ha[d] yet to identify all of the underlying motivations to the violent behavior [he] exhibited on [the date of the murder]." The panel noted appellant's statement that he "now realize[s] that at the time of the [m]urder [he] 'needed professional help but [he] did not realize it at the time.'" The panel was "unclear" whether appellant was "inferring . . . that [he] had a significant substance abuse problem or if [he] had emotional issues in regards to [his] ex-girlfriend." The panel concluded:

Based upon the statements that you made at your Board panel hearing, it is clear that you are unable or unwilling to change your thought process as it relates to the murderous behavior you exhibited on [the date of the murder]. There is no indication in your parole records nor in the contents of your parole hearing that you have come to any understanding as to what the [sic] underlying motivations for killing your victim. After nearly twenty-five (25) years of incarceration, you are unable or unwilling to offer an acceptable explanation as to why you would commit the . . . violent act of murder against a complete stranger.

The panel opined that appellant "must come to understand why [he] reacted and behaved in the violent manner that [he] did." Finally, the panel noted that appellant continued to deny committing the theft and larceny offenses of which a jury had found him guilty. The panel found it "disquieting" that appellant continued to deny committing these offenses "despite credible evidence to the contrary, including the fact that [he was] positively identified by [his] two (2) separate . . . victims and [he was] convicted by a jury of [his] peers after an eight (8) day trial."

The panel acknowledged numerous mitigating factors, including appellant's participation in various programs, noting that he was then currently on a waiting list for "One-On-One Counseling and that [he is] currently in progress as a Teacher's Aide." The panel further noted appellant's "positive adjustment to minimum custody[,] . . . minimal prior criminal record[,] and the fact that [he has] been infraction free for nine (9) years . . . ."

The panel gave the following reasons for imposition for a sixty-month FET:

The three-member Board panel is of the opinion that the factors supporting the denial of parole, collectively, are of such a serious nature as to warrant the setting of a future parole ineligibility term which differs from the presumptive term of twenty-seven (27) months ( 9 months).

. . . .

Based upon a comprehensive review of your entire record, it is clear that you continue to remain a substantial threat to public safety. The focus of the three-member Board panel's review of your case is to determine the future parole ineligibility term that would reasonably be required of an individual with your behavioral history.

. . . .

[T]he three-member Board panel has found that setting any term less than a sixty (60) month future parole eligibility term would be wholly inconsistent with the conclusion that, after nearly twenty-five (25) years of incarceration, you have not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity.

In his appeal to the Board, appellant noted that his own expert, Gerald Cooke, Ph.D., had evaluated him in 2001 and again in 2006 in anticipation of the upcoming parole hearing. In his report, Dr. Cooke opined "to a reasonable degree of psychological certainty that if [appellant] were released on parole, he would be capable of making a good adjustment in the community and would not present a significant danger of criminal or anti-social behavior." Dr. Cooke based his opinion upon numerous psychological tests administered to appellant as well as his interview. In his 2006 report, Dr. Cooke noted that appellant's history within the prison system and the testing indicate that "he has profited from the programs he has participated in and has developed understanding into the behavior that led to his criminal offense," leading Dr. Cooke to opine once again that appellant "would not pose any significant danger to others if he was released on parole."

Appellant further relied upon a report submitted by Janet Rochelle Brice-Baker, Ph.D., which noted that appellant's "expression of remorse over the killing of [the victim]" was "in his favor . . . ."

Appellant also challenged the sixty-month FET, noting that the two-member panel's original designation of his matter as a "2A case" was "not harmless error[,]" and that appellant did not "have to demonstrate that he has satisfactorily reduced the likelihood of future criminal behavior" in order to avoid imposition of an FET in excess of the presumptive twenty-seven-month term ( nine months) set forth in N.J.A.C. 10A:71-3.21.

The Board denied appellant's appeal in a letter decision issued on August 6, 2008, in which it reviewed appellant's contentions and the panels' findings, and concluded that the panels had

considered the aggregate of the information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision for denying parole . . . . In addition, . . . the [panel's] decision is based upon a determination that a preponderance of evidence indicates that there is a substantial likelihood that [appellant] would commit a crime if released on parole at this time. Also, the . . . three-member [p]anel has appropriately established a future parole eligibility term pursuant to N.J.A.C. 10A:71-3.21(d) . . . and its Notice of Decision documents the particular reasons for the establishment of said term.

On appeal to this court, appellant contends that numerous "errors of law and fact were made on the two and three member panel decisions and the full Board's decision." As noted at the outset, we disagree, with the exception of the sixty-month FET.

Judicial review of the denial of parole is subject to the same standard as other administrative reviews. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI). Our role is limited. Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We will only decide whether the findings could reasonably have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We cannot substitute our judgment for that of the agency. In re Polk License Revocation, 90 N.J. 550, 578 (1982). We accord a "strong presumption of reasonableness" to the agency's exercise of its statutorily-delegated responsibilities. Newark v. Natural Resource Council Dep't Env. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing that the agency's action was arbitrary, unreasonable or capricious rests upon the appellant. Barone v. Dep't of Human Servs., Div. of Med. Assistance, 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987). Pursuant to these standards, "the agency's decision will be set aside 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.) (internal quotation marks omitted), certif. denied, 11 N.J. 649 (1988). "We recognize that Parole Board determinations are highly 'individualized discretionary appraisals,' and, therefore, . . . should not be reversed by a court unless found to be arbitrary. . . ." Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV) (quoting Beckworth v. State Parole Bd., 62 N.J. 348, 359 (1973)).

With these standards in mind, we have carefully considered appellant's contentions and thoroughly reviewed the record on appeal, including the confidential appendix, which includes the Monmouth County pre-sentence report and numerous psychological evaluations from January 7, 1983 through September 13, 2007. We are satisfied that these documents support the Board's decision to deny parole.

Appellant is presently incarcerated for a crime committed in 1982. The standard that governs appellant's application for parole is set forth in N.J.S.A. 30:4-123.53, which provides that when an inmate is eligible for parole, he shall be released unless it is established by a preponderance of the evidence that "there is substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time." In making this determination, the Board must consider the factors enumerated in N.J.A.C. 10A:71-3.11(b), which include, but are not limited to, the facts and circumstances of the offense; aggravating and mitigating factors concerning the offense; the inmate's mental and emotional health; statements of the inmate reflecting on whether there is a likelihood he will commit another crime; participation in institutional programs; and statements or evidence presented by a prosecutor or other criminal justice agency.

Here, the Board properly considered the relevant factors in N.J.A.C. 10A:71-3.11(b) in denying appellant's application for parole. The Board found that there is a substantial likelihood that appellant would commit a crime if released on parole "at this time." The Board took into account all mitigating factors advanced on appellant's behalf, including his participation in numerous therapeutic and educational programs. Nonetheless, the Board recognized that "a confidential professional report had a significant impact upon" the panel's determination that, "[a]fter nearly twenty-five (25) years of incarceration, [appellant is] unable or unwilling to offer an acceptable explanation as to why [he] would commit the . . . violent act of murder against a complete stranger." The Board endorsed the panel's finding that the "confidential professional report" was "more reliable as to [appellant's] suitability for parole release[,]" and that "the presentation that [appellant] put forth at the [p]anel hearing on March 12, 2007 was in the opinion of the [p]anel members consistent with the assessments and impressions" contained in that report. In our view, the Board's decision to deny parole is "supported by sufficient credible evidence on the record as a whole . . . ." R. 2:11-3(e)(1)(D).

We cannot, however, reach the same conclusion with respect to the Board's determination that a sixty-month FET is appropriate. The regulation governing the establishment of FETs provides, in pertinent part:

(a) Upon determining to deny parole to a prison inmate, a two-member adult Board panel shall, based upon the following schedule, 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 . . . shall serve 27 additional months.

. . . .

(c) The future parole eligibility dates required pursuant to (a) . . . above may be increased or decreased by up to 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.

(d) A three-member Board panel may establish a future parole eligibility date which differs from that required by the provisions of (a) . . . above if the future parole eligibility date which would be established pursuant to such subsection[] is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior. In making the determination that the establishment of a future parole eligibility date pursuant to (a) . . . above is clearly inappropriate, the three-member panel shall consider the factors enumerated in N.J.A.C. 10A:71-3.11.

[N.J.A.C. 10A:71-3.21(a), (c) and (d).]

Here, the three-member panel increased the standard FET from the presumptive twenty-seven months to sixty months, and gave two reasons for this decision. First, the panel noted that appellant is "presently incarcerated for three (3) offenses in regards to three (3) separate incidents[,]" namely, the murder offense of March 6, 1982, the robbery offense of March 7, 1982, and the larceny offense of March 8, 1982. The panel concluded that these offenses "demonstrated [appellant's] choice to commit separate distinct criminal acts." The second reason was the panel's "belie[f] that [appellant] must come to understand why [he] reacted and behaved in the violent manner that [he] did."

We are not satisfied that these two reasons, standing alone, justify the establishment of an FET beyond the maximum thirty-six-month range afforded by N.J.A.C. 10A:71-3.21(a)(1) and (c). As noted previously, in 2002, appellant's FET was set at thirty-six months. The Board has failed to provide any basis for the substantial deviation from that determination.

Considering the number of educational and therapeutic programs which appellant has completed, as both panels and the Board acknowledged, the Board has provided no supportable basis for postponing appellant's next parole hearing for another five years. We discern no reason why appellant may not address the issue identified by the three-member panel and adopted by the Board -- namely, his need to "come to understand why [he] . . . behaved in the violent manner that [he] did[]" -- within the twenty-seven-month range, plus or minus nine months, contemplated by N.J.A.C. 10A:71-5.21(a) 1 and (c). We therefore reverse the imposition of a sixty-month FET and remand that issue for further proceedings in conformity with this opinion.

Affirmed in part; reversed and remanded in part.

 

Appellant appealed the latter decision, and we affirmed. Bailiff v. N.J. Parole Bd., No. A-2899-04 (App. Div. July 27, 2006), certif. denied, 188 N.J. 577 (2006).

The three-member panel's statement that appellant is "presently incarcerated for three . . . offenses" (emphasis added) is erroneous. Appellant has long since served the maximum sentence imposed on his theft and larceny charges.

We note that the statute was amended in 1997, by L. 1997, c. 213, 1. Based on the dates of appellant's crimes, we apply the 1979 version.

In the panel's decision, this last date is erroneously entered as "March 8, 1992 . . . ."

Appellant contends, correctly, that the panel erred in stating that he was on the waiting list for "One-on-One Counseling." It appears that appellant has, in fact, participated in this program.

(continued)

(continued)

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A-0213-08T1

June 29, 2010