KIM HIRKO 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NOT FOR PUBLICATION WITHOUT THE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

KIM HIRKO,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

____________________________________________

January 14, 2014

Before Judges Ashrafi and St. John.

On appeal from the New Jersey State Parole Board.

Kim Hirko, appellant pro se.

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

PER CURIAM

Appellant Kim Hirko appeals from a September 28, 2011 final decision of the Parole Board (Board) denying her request for parole and establishing a thirty-six month future parole eligibility term (FET). We affirm.

I.

We briefly summarize the relevant procedural history and the facts based on the record before us.

Pursuant to the terms of a negotiated plea agreement, appellant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a), for the death of her mother, and possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a). On January 19, 1996, she was sentenced to an aggregate custodial term of twenty-five years, with eight years and four months of parole ineligibility.

While incarcerated, she was charged with conspiracy to commit murder, N.J.S.A. 2C:5-2(a), and two counts of attempted murder, N.J.S.A. 2C:11-3(a), N.J.S.A. 2C:5-1. Pursuant to a second negotiated plea agreement, she was convicted of the two attempted murder charges. On September 20, 2002, she was sentenced to two concurrent fifteen-year terms with seven years and six months of parole ineligibility on each count, consecutive to the 1996 sentence.

Appellant became eligible for parole on June 6, 2011. On February 4, 2011, a hearing officer conducted appellant's initial hearing and referred the matter to a Board panel for a hearing. In March, a two-member Board panel considered her case, denied parole, and established a thirty-six month FET.1

The panel based its decision on her insufficient problem resolution, commission of five institutional infractions while in prison, commission of crimes while incarcerated, lack of an adequate parole plan, and the prosecutor's objection. The panel noted that she committed two counts of attempted murder while incarcerated for aggravated manslaughter, which raised serious concerns as to her suitability for parole, and that she continued to minimize her involvement in the crimes. The panel noted the following mitigating factors: no prior criminal record or minimal criminal record; participation in institutional programs; has average or above average institutional reports; attempts to enroll in and participate in programs, but was not admitted; and minimum custody status achieved/maintained. The panel recommended that she consider participating in institutional programs geared towards criminal behavior, continue programs, and remain infraction free.

Appellant appealed to the Board and raised five issues that she contends the Board panel decided in error. On September 20, 2011, the full Board, finding her contentions to be without merit, in a comprehensive five-page opinion, affirmed the panel's decision to deny parole and establish a thirty-six month FET.2 It is from that decision that appellant appeals.

II.

On appeal, appellant, in a pro se brief, raises the following points for our consideration:

POINT ONE

THE DECISION OF THE STATE ADMINISTRATIVE AGENCY WAS ARBITRARY, CAPRICIOUS, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND SHOULD BE REVERSED.

POINT TWO

THE PANEL VIOLATED RULES OF PROFESSIONAL CONDUCT SINCE IT ACTED BEYOND ITS KEN AS AN OUTSIDE STATE AGENCY.

POINT THREE

THE ADULT PANEL'S FAILURE TO SUPPORT THE IMPOSITION OF AN INCREASED ELIGIBILITY PERIOD VIOLATED THE RIGHT TO DUE PROCESS.

POINT FOUR

RECISSION OF THE FET SHOULD BE GRANTED BASED ON MITIGATING INFORMATION, NEW EVIDENCE, AMENDED INFORMATION PURSUANT TO N.J.S.A. 2C:44-1 AND FAILURE OF THE FULL BOARD TO CONSIDER ADDENDUM INFORMATION AS IT IS DIRECTLY RELEVANT TO HIRKO'S RELEASE AND CONTRARY TO THE FULL BOARD'S DETERMINATION OF AVAILABLE INFORMATION.

POINT FIVE

AVAILABILITY TO BE BROUGHT BEFORE THE BOARD ON THOSE ISSUES WHICH DO PRESENT MERIT BASED UPON ASSEMBLY BILL NJ A-4202.

The scope of our review of administrative decisions of the Board is very limited, and "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd. ("Trantino V"), 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables.'" Id. at 201 (quoting Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)). We do not disturb the factual findings of the Board if they "'could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 172 (quoting Trantino v. N.J. State Parole Bd. ("Trantino IV") 154 N.J. 19, 24 (1998), modified in part, aff'd in part, 166 N.J. 113 (2001)); see also McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (noting "[a]dministrative actions, such as parole decisions, must be upheld where the findings could reasonably have been reached on the credible evidence in the record"). Further, we remain mindful that "[t]o a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Trantino V, supra, 166 N.J. at 201 (citation omitted). We will not second-guess the Board's application of its considerable expertise in sustaining the hearing officer's determination. See, e.g., In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). Consequently, we reverse a Parole Board decision only when it is found to be arbitrary and capricious. Trantino V, supra, 166 N.J. at 201.

Parole reviews are guided by N.J.S.A. 30:4-123.53(a),3 which provides in pertinent part:

An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report . . . or developed or produced at a hearing . . . 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 . . . if released on parole at that time.

We have interpreted "reasonable expectation" to mean a "substantial likelihood" the inmate will violate parole if released. Kosmin, supra, 363 N.J. Super. at 41. Further, the Administrative Code provides:

(a) Parole decisions shall be based on the aggregate of all pertinent factors, including material supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate.

(b) The . . . Board . . . may consider any other factors deemed relevant[.]

[N.J.A.C. 10A:71-3.11.]

Evaluated against these standards, we reject appellant's challenges to the sufficiency of the facts considered by the Board in reaching its determination. The Board's decision to deny parole was based on appellant's insufficient problem resolution, commission of institutional infractions while in prison, commission of crimes while incarcerated, lack of an adequate parole plan, and the prosecutor's objection.

We are satisfied that the Board's determination denying appellant's request for parole and fixing the thirty-six month FET is well-grounded on this particular record and within the broad discretion for decision-making that the Board is legislatively charged with exercising. The decision was neither arbitrary nor capricious and was clearly supported by the record. We discern no basis to disturb the Board's determination.

1 We note that a prison inmate serving a sentence for murder, manslaughter, aggravated sexual assault or kidnapping or serving any minimum-maximum or specific sentence in excess of fourteen years for a crime not otherwise assigned shall serve twenty-seven additional months. N.J.A.C. 10A:71-3.21(a)(1). Further, the FET 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. N.J.A.C. 10A:71-3.21(c).

2 The Board noted a sixth institutional infraction which occurred subsequent to the panel hearing.

3 Hirko represents in her brief that she has served the 1996 sentence for the 1993 crimes and is currently serving the consecutive 2002 sentence. Therefore, the Board's consideration of Hirko's application for parole is governed by the standard in effect at the time of her 2002 offenses. See Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 41 (App. Div. 2003).