R.E.B 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NOT FOR PUBLICATION WITHOUT THE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-5287-09T1

R.E.B.,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

________________________________________________________________

Submitted May 3, 2011 Decided May 24, 2011

Before Judges Baxter and Koblitz.

On appeal from the New Jersey State Parole Board.

R.E.B., appellant pro se.

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

PER CURIAM

R.E.B. appeals from a May 26, 2010 decision of the State Parole Board (Board) that denied his parole request and established a twenty-month future eligibility term (FET). We affirm.

I.

On March 14, 2003, following a trial by jury, R.E.B. was sentenced to a ten-year term of imprisonment on a charge of first-degree aggravated sexual assault, and a concurrent five-year term of imprisonment on a charge of second-degree endangering the welfare of a child. By its verdict, the jury found R.E.B. guilty of engaging in sexual intercourse with his daughter, J.B. On February 6, 2006, R.E.B. was granted parole.

While R.E.B. was free on parole, his conviction was overturned, and he was granted a new trial. State v. R.E.B., 385 N.J. Super. 72, 81 (App. Div. 2006). The retrial commenced before a different judge in April 2008, and R.E.B. was again convicted of both charges. On July 18, 2010, the judge sentenced him to a ten-year term of imprisonment on the aggravated sexual assault conviction, and to a consecutive five-year term on the endangering charge, for a total custodial term of fifteen years.

On appeal, we affirmed R.E.B.'s conviction; and rejected his claim that the lengthier sentence imposed after the second trial was impermissible. State v. R.E.B., No. A-2329-08 (App. Div. April 26, 2010) (slip op. at 26-27), certif. denied, 203 N.J. 95 (2010). Following his July 18, 2008 conviction, after having served an additional twenty months of imprisonment, R.E.B. became eligible for parole on March 10, 2010. He received an initial parole hearing before a hearing officer, who referred the matter to a two-member panel, in keeping with N.J.A.C. 10A:71-3.15(b), which specifies that inmates serving a sentence for aggravated sexual assault, or second-degree endangering the welfare of a child, must be referred for a hearing before a two-member panel.

On February 25, 2010, the two-member panel denied parole and established a twenty-month FET. The two-member panel based its decision on the following factors: R.E.B.'s prior incarceration did not deter criminal behavior; and R.E.B. showed "insufficient problem resolution." As to the latter, the panel found a lack of insight by R.E.B. into his criminal behavior, a continuing denial that he had sexually assaulted his daughter, and a failure to sufficiently address his substance abuse problem. In denying parole, the panel also commented that R.E.B. "continues to blame the victim for false accusations, however, he sees no issues with himself and persists in denial of any personal or addictive issues although his behavior indicates otherwise." The panel also found that R.E.B. "has no empathy for the victim's emotional state and instead indicates, 'she should know about this, she was molested previously.'" The panel based its findings on its interview of R.E.B., documentation in the case file and confidential psychological assessments. As mitigating factors, the panel noted that R.E.B. had remained infraction-free and had received average to above-average institutional reports.

On March 5, 2010, R.E.B. appealed the two-member panel's adverse decision to the full Board, which on May 26, 2010, affirmed the denial of parole and the imposition of a twenty-month FET. The Board summarized R.E.B.'s contentions, noting his claim that he had been unable to participate in programming due to a medical condition, dyslexia, that prevented him from reading the program materials; his "limited criminal history"; and his "positive work and institutional history." The Board also noted R.E.B.'s community ties and prospective employment opportunities.

On appeal, R.E.B. presents a single issue for our consideration: the denial of parole constitutes an abuse of discretion as the record does not support the Board's finding that he would commit a new crime if released on parole. In particular, he maintains that because the Board granted him parole in February 2006, and he had maintained an unblemished institutional record thereafter, the Board was barred from reaching a contrary result in 2010.

II.

Our scope of review is a narrow one, and we review R.E.B.'s contentions in accordance with that standard. We must affirm unless the Board's decision was unreasonable, unsupported by credible evidence in the record or contrary to law. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172 (2001) (Trantino VI). In conducting this limited review, we must accord the Board's decision a presumption of validity; and the burden is on the challenging party to show that the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.), certif. denied, 135 N.J. 469 (1993). Moreover, because the Board's decisions are to be considered highly "'individualized discretionary appraisals,'" the Board is vested with "'broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. Trantino VI, supra, 166 N.J. at 173 (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)).

For inmates serving sentences for crimes committed after August 18, 1997, the Board must grant parole unless a preponderance of the evidence in the record demonstrates that "there is a reasonable expectation that the inmate will violate the conditions of parole . . . if released on parole at

[this] time." N.J.S.A. 30:4-123.53(a).1

N.J.A.C. 10A:71-3.11(b) contains a non-exhaustive list of factors that the Board may consider in determining whether to release an inmate on parole. Such factors include: the facts and circumstances of the underlying offense; aggravating and mitigating factors surrounding the offense; participation in institutional programs; the existence of any statements by institutional staff, accompanied by supporting documentation, that the inmate is likely to violate conditions of parole if released; and statements by the inmate reflecting on whether there is a reasonable expectation that he will violate parole conditions if released. Ibid.

We turn to the sole argument R.E.B. raises on appeal, namely, the Board's May 26, 2010 decision must be reversed because the initial parole panel's February 6, 2006 decision to grant parole on the same charges "should be given res judicata effect," thereby precluding the second panel and entire Board from reaching a contrary decision in 2010. For two reasons, we do not agree. First, R.E.B. has provided no authority, statutory or otherwise, to support his contention that the Board was prohibited from denying him parole in 2010 merely because he was granted parole on the same offense in 2006. As we have noted, the burden is on the inmate to establish that the Board's denial of parole was error. Bowden, supra, 268 N.J. Super. at 304. R.E.B.'s failure to provide any authority to support his res judicata argument leads to but one conclusion, namely, that he has failed to satisfy the burden of proof that Bowden establishes.

Second, before granting an inmate parole, the Board is required to complete a "risk assessment" to assist the Board panel "in determining whether the inmate shall be certified for parole[.]" N.J.S.A. 30:4-123.52(e). The risk assessment requires the Board to consider "both static and dynamic factors." Ibid. As is evident from the express language of that statute, the Board is required to conduct a contemporaneous evaluation of the inmate's present suitability for parole. Nothing in N.J.S.A. 30:4-123.52 authorizes a Board panel or the full Board to abandon that responsibility in favor of relying on an earlier parole assessment. Thus, for both of these reasons, we reject R.E.B.'s contention that the 2006 grant of parole served as a bar to the Board reaching a contrary decision in 2010.

Moreover, having reviewed the Board's May 26, 2010 decision, we are satisfied that the record amply supports each of the Board's factual findings. As we have noted, in denying parole, the Board relied upon a finding that R.E.B. had achieved "insufficient problem resolution." That finding was based upon its interview with R.E.B. and documentation in the case file, including an evaluation showing that R.E.B. "continues to blame the victim for false accusations, however, he sees no issues with himself . . . ." In addition, the Board noted that R.E.B. "has no empathy for the victim's emotional state" and instead blames the victim by remarking that "she should know about this" because "she was molested previously." We concur in the Board's determination that R.E.B.'s denial that he committed this crime demonstrates that he is unwilling to acknowledge his criminal and maladaptive behavior, and unwilling to address its root causes, thereby creating a significant risk that he would violate the conditions of parole if released.

Additionally, the record supports the Board's conclusion that R.E.B. has failed to address his substance abuse problem. In particular, when interviewed by the police investigators after J.B. first accused him of sexually assaulting her, R.E.B. informed the police that if something had happened with his daughter, he must have been "drunk" at the time. Thereafter, as the record demonstrates, R.E.B. has refused all substance abuse treatment.2

To refute the Board's conclusion that he has resisted participating in programs to address his substance abuse problem and lack of insight into his offense, R.E.B. claims that his dyslexia prevents him from participating in programs and asserts that there are "limited resources" to help him address his reading disorder. As the Board correctly argues, R.E.B. fails to indicate whether he has availed himself of any of these "limited resources," however limited they may be. Moreover, while R.E.B. claims that he is not eligible for one-to-one counseling, he fails to provide any documentation to support that contention.

In mitigation, the Board properly noted that R.E.B. has remained infraction-free while incarcerated and has achieved average to above-average institutional reports.

After a careful review of R.E.B.'s contentions in light of the record and applicable law, we are satisfied that both the two-member panel and the full Board correctly determined that a preponderance of the evidence in the record demonstrates that "there is a reasonable expectation that [R.E.B.] will violate the conditions of parole . . . if released on parole at [this] time." N.J.S.A. 30:4-123.53(a).

1 Parole decisions for inmates who are serving sentences for crimes committed before August 18, 1997, are governed by the parole standards set forth in N.J.S.A. 30:4-123.53(a) prior to the amendment on August 18, 1997, whereas parole decisions made for those serving sentences for crimes committed after that date are governed by the revisions to the statute. Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div.), certif. denied, 165 N.J. 523 (2000). Prior to the 1997 amendment to the statute, the Board was not entitled to deny parole unless the evidence demonstrated a likelihood that the inmate would commit a new crime if released on parole. Ibid. Because R.E.B.'s crimes were committed on various dates between January 1998 and the spring of 2000, he is subject to the revised standard adopted in 1997.

2 As we have noted, in denying parole the two-member panel also relied upon its conclusion that R.E.B.'s "prior incarceration did not deter criminal behavior." On July 26, 2008, after R.E.B. had already been paroled for the first time on the ten-year sentence originally imposed for these crimes and after he had been resentenced after his second trial, he was convicted on an unrelated indictment, Indictment No. 07-10-0681. That 2007 indictment charged him with crimes occurring in 1992 and 1993. This sixty-day sentence may have formed the mistaken basis for the two-member panel's finding. In its May 26, 2010 decision, the Board mentioned the two-member panel's findings on that subject, but did not rely on that finding or discuss it further. As the Board did not rely upon this factor, we need not consider it.