FRANK HUBBARD 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NOT FOR PUBLICATION WITHOUT THE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-0

FRANK HUBBARD,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_____________________________________________

March 10, 2014

Submitted January 27, 2014 - Decided

Before Judges Parrillo and Guadagno.

On appeal from the New Jersey State Parole Board.

Frank Hubbard, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Frank Hubbard appeals the final administrative action of the New Jersey State Parole Board (Board), affirming the decision of a two-member Board panel denying parole, and the subsequent decision of a three-member panel to establish an eighty-four-month future eligibility term (FET).

In 1969, Hubbard was convicted of murder for killing an individual with a handgun. He was sentenced to twenty-three to twenty-five years in prison, but was paroled in March 1974. His parole was revoked six months later when he was again arrested. In February 1977, he was convicted of atrocious assault and battery and weapons charges for striking an individual with a gun. He was sentenced to two to four years in prison and was again paroled in May 1977.

In June 1981, while Hubbard was still on parole, he and four others planned to rob David O'Neil. During the robbery, witnesses testified that Hubbard shot O'Neil in the mouth outside the front door of his residence in Camden, killing him. In April 1982, a jury found Hubbard guilty of murder and robbery. He was sentenced to life imprisonment on the murder conviction with a twenty-five-year mandatory minimum. He received a concurrent twenty-year term on the robbery conviction.

Hubbard was first considered for parole in 2006. Parole was denied and Hubbard received a ninety-six-month FET. The panel explained, "after twenty-six (26) years of incarceration, you have not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity."

Hubbard was again considered for parole in September 2011. The hearing officer referred the matter to a Board panel for a hearing. Hubbard appeared before a two-member Board panel in November 2011. The panel denied parole for the following reasons: defendant's prior criminal record; the nature of defendant's crimes were increasingly more serious; he was incarcerated for multi-crime convictions; his parole had been revoked in the past for commission of a new offense; defendant's prior incarceration and a prior opportunity of parole failed to deter his criminal activity; his institutional infractions were "numerous[,] persistent [and] serious in nature;" and defendant had displayed "[i]nsufficient problem resolution." The panel amplified the final reason as follows:

[inmate was] involved in murder while on parole for murder but he appears to believe that since he didn't pull the trigger, he was less responsible for his criminal behavior. He cannot explain why he was participating in a robbery while on parole.

Hubbard was referred to a three-member Board panel for the establishment of an FET. In his argument for mitigation before the three-member panel, Hubbard again maintained that he was not the shooter during the robbery of O'Neil and the prosecutor's claim to the contrary was not true. On February 1, 2012, the three-member Board panel established an FET of eighty-four months for Hubbard.

Hubbard appealed to the full Board and on July 25, 2012, the Board adopted the panel decisions denying parole and setting Hubbard's FET of eighty-four months.

On appeal, Hubbard presents the following arguments:

i.

the parole board is in violation of N.J.S.A.30:4-123.56(c).

ii.

the parole board's use of inadequate parole plan to justify denial of parole.

iii.

the parole board's failure to give me annual reviews of my parole status as provided by statute.

iv.

the parole board's arbitrary imposition of a 7 year fet outside of the guidelines provided by statute.

We have carefully considered these arguments in light of the facts of this case and the applicable law, and affirm.

The standard of review in determining the validity of the Board's denial of parole was set forth in Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19 (1998). We must determine:

(1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Id. at 24.]

We 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. 1993), certif. denied, 135 N.J. 469 (1994). "Parole Board decisions should not be reversed by a court unless found to be arbitrary, or an abuse of discretion[.]" Trantino IV, supra, 154 N.J. at 25.

Hubbard argues that the Board's decision violated N.J.S.A. 30:4-123.56(c), as the Board did not rely on "new" information occurring after the initial denial of parole in 2006. Prior to 1997, N.J.S.A. 30:4-123.56(c) addressed the criteria for considering parole after an initial denial:

An inmate shall be released on parole on the new parole eligibility date unless new information filed pursuant to a procedure identical to that set forth in section 10 indicates by a preponderance of the evidence that 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.

[L. 1979, c. 441, 12 (then codified at N.J.S.A. 30:4-123.56(c)).]

In 1997, the Legislature adopted various amendments to the parole law, including an amendment deleting the word "new" from this section, permitting the Board to consider any information at the subsequent hearing. That amendment was enacted to allow the Board to weigh all relevant information in an inmate's record when considering that inmate's parole eligibility at second and subsequent hearings. See Assembly Law & Public Safety Committee, Statement to Assembly Bill No. 21 (Mar. 3, 1997).

Another amendment modified the criteria for denial, changing it from "substantial likelihood that the inmate will commit a crime . . . if released on parole" to "has failed to cooperate in his or her own rehabilitation or . . . there is a reasonable expectation that the inmate will violate conditions of parole[.]" N.J.S.A. 30:4-123.56(c), as amended, provides:

An inmate shall be released on parole on the new parole eligibility date unless information filed pursuant to a procedure identical to that set forth in section 10 of P.L.1979, c.441 (C.30:4-123.54) indicates by a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole imposed pursuant to section 15 of P.L.1979, c.441 (C.30:4-123.59) if released on parole at that time. The determination of whether the inmate shall be released on the new parole eligibility date shall be made pursuant to the procedure set forth in section 11 of P.L.1979, c.441 (C.30:4-123.55) and this section.

Even though the Board was not required to restrict itself to "new" information, the Notice of Decision by the three-member panel indicates that some of the information relied on by the panel occurred after Hubbard's last appearance before the Board in 2006. The panel's conclusion that Hubbard lacked insight into his violent behavior and that he minimized his maladaptive actions is based on Hubbard's statements at the second parole hearing:

The Board panel believes that the statements you made at your second parole hearing demonstrated that you continue to be unable or unwilling to change your thought process as it relates to your past violent behavior. 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 underlying motivations were in your violent criminality. The Board panel is of the opinion that your obvious lack of insight is the same today as it was at the time of your offenses. Your criminal offense history includes two Murder offenses, one of which occurred while on parole supervision. When asked to describe and/or explain your behavior and the decision making behind your offenses past and present, you simply uttered that your actions were "dumb" and "stupid." You also found it important to emphasize several times during your hearing that you were not the shooter of the victim of your current Murder offense.

At no point during your current hearing did you explain or elucidate in any meaningful way to the Panel, what you have come to understand about yourself and what was the motivation to involve yourself in a perpetual string of violent criminality. Clearly the monetary reasons were a contributing factor, however, a personality characteristic that has been neither identified by you or addressed by you impelled you to act in an anti-social manner over an extended period of your life. Your characterization of such behavior as being "stupid" and "dumb" is not representative of an individual who possesses insight into his criminality. Additionally, it is clear that you are an individual who wishes to distance himself and minimize his criminal actions by overly emphasizing that although you were present during the robbery of the victim of your present offenses, you were not the shooter. After twenty-nine (29) years of incarceration, you are unable or unwilling to offer an acceptable explanation as to why you would commit the offenses for which you are presently incarcerated.

Hubbard relies on the holding in our unpublished decision in Klingebiel v. New Jersey State Parole Board, No. A-5341-04 (App. Div. August 11, 2008), in arguing that the Board was required to identify new evidence to justify denial of parole. We disagree.

In Klingebiel, the defendant was convicted of murder and sentenced to life imprisonment in January 1981. He was denied parole in 1994 and again in 2001. When he came before the Board in 2005, he was again denied parole and a 180-month FET was imposed. We remanded, noting that the defendant's sentence did not include a term of parole ineligibility and therefore he became primarily eligible for parole after having served twenty-five years. On remand, the Board again denied parole and set a FET of 144 months. Klingebiel appealed and we again remanded, noting that

there were no new facts or institutional history which reflected evidence of a risk beyond the Board's assessment warranting a conclusion that now a 144 month, or a twelve-year, FET was warranted. The confidential material and prosecution's objection no longer were deemed to have a significant impact on the decision, and the Board acknowledged his "infraction-free" institutional history, his above-average work and housing reports and his participation in therapy and groups to the maximum extent possible.

Initially, we note that Klingebiel is unpublished and, therefore, is not binding precedent. See R. 1:36-3. Moreover, we find the facts in Klingebiel distinguishable. The lynchpin of our decision in Klingebiel was that the defendant's life sentence did not include a term of parole ineligibility. Hubbard's life sentence, imposed pursuant to N.J.S.A. 2C:43-7, included a twenty-five year mandatory minimum. Unlike Klingebiel, he was not primarily eligible for parole after serving twenty-five years. While the Board considered Klingebiel's criminal history, his prior crimes included property crimes and sexual assault. They did not approach the severity of Hubbard's criminal history, whose current murder conviction occurred while he was on parole for another murder. Finally, Klingebiel was infraction-free during his twenty-five years in custody while Hubbard has a history of forty-one disciplinary infractions, although none since 2005. Given the date of the offense and the nature of the sentence, there was a presumption in favor of parole in Klingebiel. No such presumption exists in Hubbard's favor. Finally, in Klingebiel, the confidential material presented to the Board did not have a significant impact on the Board's decision and the psychological evaluations were "in equipoise." Hubbard's confidential report weighed heavily in the Board's determination to deny parole and impose the FET.

Given our limited scope of review and the deference to which the Board is entitled, we find no abuse of discretion in the Board's denial of parole. We are also satisfied that the record contains substantial evidence to support the Board's findings on which it based its decision to set the eighty-four month FET.