BRIAN HARDY 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NOT FOR PUBLICATION WITHOUT THE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-3727-04T33727-04T3

BRIAN HARDY,

Petitioner-Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent-Respondent.

________________________________

 

Submitted May 22, 2006 - Decided June 23, 2006

Before Judges Holston, Jr. and Gilroy.

On appeal from a Final Decision of the State Parole Board.

Brian Hardy, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Brian Hardy, appeals from a March 9, 2005 decision of the New Jersey State Parole Board (Board), denying him parole for the fifth time and establishing a twenty-seven month Future Eligibility Term (FET). We affirm.

Following a guilty plea to first-degree aggravated manslaughter, appellant was sentenced on June 24, 1993, to a twenty-eight year term of imprisonment. Appellant was previously denied parole on May 24, 1999, June 13, 2000, and February 1, 2002. On July 24, 2003, a two-member panel again denied parole, and established a twenty-seven month FET. Appellant appealed to the Board. The Board affirmed the panel's denial, agreeing with the panel's determination that the nature of his criminal record was becoming more serious, he lacked insight into his criminal behavior, and he minimized his conduct.

On appeal, appellant argued that the Board's decision was not supported by substantial, credible evidence in the record, and "because his offense occurred prior to the 1997 amendment to N.J.S.A. 30:4-123.56, the Board can only consider information developed subsequent to his last parole hearing." Hardy v. N.J. State Parole Bd., No. A-1281-03T1 (App. Div. Oct. 5, 2004) (slip op. at 3). Appellant contended that because he had been infraction-free since his last parole hearing, the Board was required to grant parole. Ibid. We agreed with appellant's argument that the pre-1997 parole standard of N.J.S.A. 30:4-123.56(c) was applicable to his case, citing Williams v. New Jersey State Parole Board, 336 N.J. Super. 1 (App. Div. 2000). However, we affirmed the Board's decision denying parole, and rejected the argument that the Board was restricted to considering only information developed subsequent to appellant's last parole hearing "because the amendment permitting evidence of prior information was a procedural change, it did not represent a constitutional violation of the ex post facto clause." Hardy, supra, slip op. at 4. Accordingly, we held that the Board "was not precluded from considering pertinent information developed prior to Hardy's last parole hearing." Id. at 5.

Appellant's prior criminal history consists of a 1979 conviction for assault with a deadly weapon and for carrying a concealed weapon. Following release on probation, appellant was convicted on November 15, 1982, of violation of probation. On September 7, 1991, defendant was convicted of resisting arrest. On March 13, 1992, appellant was convicted of a fourth-degree sexual assault charge. In addition, between the convictions, appellant was charged with other criminal offenses which were subsequently dismissed. While in prison, appellant has not committed any infractions since 2001. He has completed programs in Alcoholics Anonymous, Narcotics Anonymous, Self-Counseling, Encounter Group, Behavior Modification I and II, Anger Management, Christian Group, Veteran's Alcoholics Anonymous, and obtained a High School Equivalency Diploma.

On October 21, 2004, appellant underwent an in-depth psychological evaluation in anticipation of his scheduled parole hearing. On November 23, 2004, a two-member panel considered appellant's case, including an interview of appellant. During the hearing, although appellant stated that he took full responsibility for the crime, attributing his actions to a "substantial error in judgment," he could not state why he committed the crime or how it occurred.

The panel denied parole, and based its decision on: appellant's "[p]rior criminal record;" the "nature of [appellant's] criminal record [was becoming] increasingly more serious;" "[p]rior opportunity(ies) on . . . probation . . . have failed to deter criminal behavior;" "[p]rior opportunity(ies) on . . . probation . . . have been violated in the past;" and "[i]nsufficient problem(s) resolution," specifically, a "[l]ack of insight into criminal behavior," he "[m]inimizes conduct," and his "[s]ubstance abuse problem has not been sufficiently addressed" as demonstrated by the panel's review of documentation in the case file and confidential material. In fixing a twenty-seven month FET, the panel suggested that appellant should consider participating in "[s]ubstance abuse counseling," "[b]ehavior modification," and [o]ne[-]to[-]one counseling." Following appellant's administrative appeal, the Board by letter of March 9, 2005, affirmed the panel's decision denying parole and establishing a twenty-seven month FET:

The full Board found that the Panel appropriately denied you parole based upon the fact that you have four prior criminal convictions and that the nature of your criminal record is increasingly more serious. In addition, according to the Pre-Sentence Investigation Report, you have experienced prior probation in 1977 and 1978, and sustained a violation of probation in 1982, which failed to deter your criminal behavior. The Panel determined that you lack insight into your criminal behavior, that you minimize your conduct[,] and that your substance abuse problem has not been sufficiently addressed, as evidenced by their interview with you and documentation in the file, including confidential information. Of concern is the fact that you have an alcohol problem since age 14[,] and committed the present offense while under the influence of alcohol. Although you have participated in institutional programs, more programming is needed.

. . . .

Be advised that regardless of whether it is a subsequent review, the Panel can consider the entire record, including prior criminal history. Pursuant to amendments to the Parole Act of 1979, the Board Panel is not limited to considering only new information. At each instance of parole consideration, the Board may consider the entire record.

. . . .

Based on a consideration of the facts cited above, the full Board has determined that the Adult Panel has documented, by a preponderance of evidence, that there is a substantial likelihood that you would commit a crime if released on parole at this time.

Accordingly, the full Board has elected to affirm the Adult Panel's decision to deny parole and establish a twenty-seven (27) month [F]uture [P]arole [E]ligibility [T]erm.

On appeal, appellant argues that:

POINT I.

THE N.J. STATE PAROLE BOARD[']S FAILURE TO FOLLOW THE APPLICABLE STATU[T]ES[,] N.J.S.A. 30:4-123.56(c), AND N.J.S.A. 30:4-123.54(b)(1), BY ILLEGALLY ABROGATING THE "NEW INFORMATION" CRITERIA AND CHANGING THE APPLICABLE PAROLE RELEASE CRITERIA BY COMPELLING DEFENDANT TO COMPLY WITH A "NEWLY" AMENDED STATU[T]E THAT IS NOT APPLICABLE PURSUANT TO N.J.S.A. 30:4-123.52, THAT REQUIRES DEFENDANT TO SUBMIT TO IN[-]DEPTH PRE[-]PAROLE PSYCHOLOGICAL EVALUATIONS, WHICH VIOLATED EQUAL PROTECTIONS, DUE PROCESS[,] AND THE EX POST FACTO PROHIBITION IN [] VIOLATION OF U.S. CONSTITUTIONAL AMENDMENTS ART. 1, 9, CLAUSE 3, ART. 1, 10, CLAUSE 1, AND [ART.] 4, 7, 3, OF THE N.J. CONSTITUTION AND THE [FIFTH] AND [FOURTEENTH] AMENDMENTS OF THE U.S. CONSTITUTION.

POINT II.

THE APPLICATION OF THE NEW 1997 AMENDMENTS AND THE ALTERATION OF THE PRIOR STATU[T]E ESTABLISHED IN 1996, N.J.S.A. 30:4-123.56(c), LEGISLATIVELY MANDATED ADDITIONAL PUNISHMENT, RETROSPECTIVELY APPLIED, WHICH VIOLATED THE EX POST FACTO PROHIBITION[,] ART. I, 9, CLAUSE 3, ART. I, 10, CLAUSE 1 AGAINST ADDITIONAL PUNISHMENT AND THE [FIFTH] AND [FOURTEENTH] AMENDMENTS OF THE U.S. CONSTITUTION AND THE N.J. CONSTITUTION[,] ART. 4, 7, 3, ART. I, 1.

Judicial review of parole determinations is limited to an evaluation of whether the Parole Board acted arbitrarily or abused its discretion in rendering its decisions. The actions of the Parole Board are presumed valid and reasonable. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). Our review is also limited to a determination whether the agency's findings could reasonably have been reached on the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). An agency's decision can be set aside only "'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.) (quoting 613 Corp. v. State, Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988).

Parole Board decisions are considered "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Consequently, "the Board 'has broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. Ibid. (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)).

Measured by the standard, we discern no basis to disturb the decision of the Parole Board denying parole and fixing a twenty-seven month FET. The agency's decision is founded on evidence relevant to appellant's eligibility for parole, including an in-depth psychological evaluation of appellant. It reflects the application of the expertise of the agency to an individual application for parole. Accordingly, we affirm the decision denying parole and fixing the twenty-seven month FET. We add the following comment.

Appellant argues that under the Parole Act of 1979, the Board improperly denied him parole because the Board's decision was based on the same factors that the Board used to deny him parole previously. Appellant argues that because he has been free of any institutional infractions since his last review, the Board was required to grant parole. We disagree. These are the same arguments previously rejected by this court. Hardy, supra, slip op. at 3; see also Trantino v. N.J. State Parole Bd., 331 N.J. Super. 577, 607-11 (App. Div.) (holding that the Parole Board was not constrained in considering only information that developed since an inmate's last parole hearing and consideration of information pre-dating the last parole hearing "did not violate the ex post facto clause since this change in the law is a procedural modification that does not constitute a substantive change in the parole release criteria"), aff'd in part, modified in part on other grounds, 166 N.J. 113, modified on other grounds, 167 N.J. 619 (2001). Accordingly, we determine that the Board's decision in denying parole was not arbitrary, capricious, or unreasonable, and is supported by credible evidence in the record. We also find the imposition of a twenty-seven month FET is in accordance with N.J.A.C. 10A:71-3.21(a)1, which provides that when the Board denies parole to an inmate serving a sentence in excess of fourteen years, the standard FET is twenty-seven months.

Affirmed.

 

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A-3727-04T3

June 23, 2006