DAVID KLINGEBIEL v. NEW JERSEY STATE PAROLE BOARD

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5341-04T15341-04T1

DAVID KLINGEBIEL,

Plaintiff-Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Defendant-Respondent.

________________________________________________________________

Argued December 20, 2006 - Decided January 31, 2007

 
Motion for Reconsideration Granted

Amended Opinion

Before Judges Stern, A.A. Rodr guez and Lyons.

On appeal from the New Jersey State Parole Board.

Eric J. Marcy argued the cause for appellant

(Wilentz, Goldman & Spitzer, attorneys; Mr. Marcy,

of counsel and on the brief).

Keith S. Massay, Deputy Attorney General, argued

the cause for respondent (Stuart Rabner, Attorney

General, attorney; Patrick DeAlmeida, Assistant

Attorney General, of counsel; Kimberly A. Sked,

Deputy Attorney General, on the brief).

PER CURIAM

David Klingebiel appeals from the final administrative determination of the Parole Board entered on May 6, 2005, denying parole and imposing a 180-month (15-year) future eligibility term (FET). Appellant argues that: "the Board has ignored and undervalued substantial evidence and relied on the same erroneous justifications to deny parole that it employed in State v. Trantino," "the arbitrary imposition of [the 15-year FET] is a denial of due process in violation of New Jersey and United States constitutions," and if parole is denied, appellant should receive annual reviews of his parole status.

Appellant is serving a life sentence for murder, and was previously denied parole by final administrative determinations in December 1994 and June 2001. Despite claims of error, issues relating to those decisions are not before us. This round deals with denial of parole by a two-member Panel and establishment of the FET by a three-member Panel, resulting in the full Board's action in 2005.

After noting that the three-member Panel and Board clearly understood this was a Title 2C case and responding to appellant's challenges to the determinations and reasoning of the two-member and three-member Panels, the Board's final administrative determination concluded that:

The full Board has determined that the Adult Panel pursuant to N.J.A.C. 10A:71-3.18(f) sufficiently documented the reasons for denial of parole, that pursuant to N.J.A.C. 10A:71-3.11 the Adult Panel considered and based its decision on the aggregate of all factors; and that the three (3) member Panel has documented the particular and specific reasons for the establishment and imposition [of] a future eligibility term outside the administrative guidelines.

The full Board found the Adult and three (3) member Panels appropriately considered your client's prior criminal record and noted that his prior opportunity on probation has failed to deter his criminal behavior. The Adult and three (3) member Panels also noted his insufficient problem resolution, specifically the lack of insight into his criminal behavior and minimizing his conduct as demonstrated by his Panel interview, documentation in the case file and confidential material and professional reports. Finally, the Adult and three (3) member Panels considered the lack of an adequate parole plan to assist him in his successful reintegration back into the community.

The full Board additionally determined the Adult and three (3) member Panels appropriately considered in mitigation that your client is infraction free, his participation in institutional programs and participation in programs specific to behavior. In addition his attempt made to enroll and participate in programs but not being admitted and minimum custody status being achieved and maintained were also considered.

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 your client would commit a crime if released on parole at this time and the three (3) member Panel has documented pursuant to N.J.A.C. 10A:71-3.21(d) that a future eligibility term established pursuant to N.J.A.C. 10A:71-3.21(a) and (c) is clearly inappropriate due to the lack of satisfactory progress in reducing the likelihood of future criminal behavior.

We remand for reconsideration of the final administrative decision for the following reasons.

The murder occurred on June 28, 1980 and defendant was sentenced to life imprisonment on January 9, 1981. As a result, this case is governed by the parole law applicable to offenses which occurred between the effective date of the Code of Criminal Justice, on September 1, 1979, and the date on which the sentencing provision with respect to the crime of murder was amended, effective September 6, 1982. See Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div.), certif. denied, 165 N.J. 523 (2000); see also Trantino v. N.J. State Parole Board, 166 N.J. 113, 197, modified, 167 N.J. 619 (2001). By virtue of N.J.S.A. 2C:11-3 in effect at the time of defendant's offense, a judge could impose a sentence for the crime of murder of 10 to 30 years, with up to 50 percent thereof to be served before parole eligibility, or 30 years with 15 years to be served before parole eligibility. See N.J.S.A. 2C:11-3 (L. 1979, c. 178, 21). Alternatively, the trial court had discretion to impose an extended life sentence under N.J.S.A. 2C:43-7, with or without a 25-year period of parole ineligibility. See State v. Maguire, 84 N.J. 508, 519-26 (1980); see also State v. Pennington, 154 N.J. 344, 360 (1998) (making clear that imposition of the 25-year period of parole ineligibility on a discretionary extended term of life imprisonment was not mandatory).

This defendant received a sentence of life imprisonment without a parole ineligibility term. Accordingly, under the Parole Act, as it then provided, appellant became "primarily eligible for parole after having served . . . 25 years where no mandatory minimum term has been imposed less commutation time for good behavior and credits for diligent application to work and other institutional assignments." N.J.S.A. 30:4-123.51(b). See L. 1979, c. 441, 7. The Parole Act of 1979 also provided for "presumptive parole." See N.J.S.A. 30:4-123.53(a); In re Application of Trantino, 89 N.J. 347, 355-56 (1982); N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). Furthermore, the Act, as it relates to appellant serving a Title 2C sentence imposed at the time it was, "place[d] the burden on the State '. . . to prove that the prisoner is a recidivist and should not be released.'" Ibid. (quoting N.J. Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983)).

Thus, appellant was entitled to "be released on parole at the time of parole eligibility, unless information supplied in the report filed pursuant to [N.J.S.A. 30:4-123.54] or developed or produced at a hearing held pursuant to [N.J.S.A. 30:4-123.55] indicate[d] 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." N.J.S.A. 30:4-123.53(a) (see L. 1978, c. 441, 9).

When appellant was denied parole in 1994, there was no objection by the Union County Prosecutor and a three-year FET was established. He subsequently took a different position, and the Board's 2005 decision points out that the Prosecutor's "input may change over time as the circumstances of the inmate's incarceration, can and do, change over time" and that the Prosecutor's present "independent determination" to object to parole was "not subject to the influence of the Board or any other entity." While the Board also noted, several times, that appellant "was infraction free" during his twenty-five years in custody, and was given credit for "participation in programs specific to behavior [and attempts] made to enroll and participate in programs," there is no explanation for the Prosecutor's change of position, its impact on the Board and how it squares with the provisions of N.J.S.A. 30:4-123.53 (see L. 1979, c. 441, 9) and 123.56. Nor does the Board explain what information it relied on to deny parole a third time and establish an FET in 2005 five times longer than that established in 1994, despite appellant's institutional record, as well as his actual and attempted program participation.

The Parole Board must reconsider defendant's parole with specific reference to the law governing parole consideration in this case. Parole is considered when a sentence is imposed under the Code of Criminal Justice, see N.J.S.A. 2C:43-2; 44-1(c)(2), and the Parole Act, therefore, transferred much of the decision-making relating to parole "substantially to the judiciary as a function of its sentencing authority under the Code." Byrne, supra, 93 N.J. at 205. See also Cestari, supra, 224 N.J. Super. at 547. In the absence of a copy of the sentencing transcript and an ineligibility term, we must believe that the sentencing judge anticipated that appellant would be paroled in about fifteen years, and so intended. However, the Board did not consider that expectation or address its impact on the Board's exercise of discretion.

In reaching its conclusion, the Board clearly considered psychological assessments provided to us in a confidential appendix. Appellant asserts that the Board improperly considered psychological reports prepared without any communication or review of reports from certain treating psychologists or institutional professionals with whom he worked over the period of his confinement.

The two-member Panel noted that its "reasons for denial," included "Insufficient problem(s) resolution," "Lack of insight into criminal behavior" and "Minimizes conduct," as demonstrated by the "Panel interview," "Documentation in case file" and "Confidential material/professional report relied on." The three-member Panel's "Notice of Decision" states that "[a] confidential professional report had a significant impact on the three-member Board Panel's decision."

Appellant endeavored to refute the confidential evaluation (or what he thought it must have concluded) by presenting a report of his own. However, in its final administrative decision, the full Board stated:

The full Board found that with regard to the role of the family situation in the commission of the crime, the psychological report by Dr. Figurelli, you cite was conducted, and the letters from your client and his parents, that you provide, were dated, subsequent to his Adult Panel hearing and three (3) member Panel review. This information was not part of the record at the time of his Adult Panel hearing and three (3) member Panel review, therefore the full Board need not consider them in his appeal.

In addition the full Board also determined that this is not information that would cause it to modify the decisions of the Adult and three (3) member Panels. This information will remain on file and be available for review at any subsequent parole consideration.

. . . .

The full Board found that with regard to your client's parole plan, the psychological report by Dr. Figurelli, you cite was conducted, and the letters from family members, friends, co-workers and clergy that you provide in his support, were dated, subsequent to his Adult Panel hearings and three (3) member Panel review. This information was not part of the record at the time of his Adult Panel hearing and three (3) member Panel review and therefore the full Board need not consider them in his appeal. In addition the full Board also determined that this is not information that would cause it to modify the decision of the Adult and three (3) member Panels. This information will remain on file and be available for review at any subsequent parole consideration.

Although we cannot fault the Board for not considering reports which were not submitted to the Panels or part of the record, the Figurelli report warrants consideration. See Cestari, supra, 224 N.J. Super. at 544-45, 50-51; N.J.A.C. 10A:7-4.3(f). In Cestari we held that the Board was required to consider "all favorable evaluations . . . made by correctional officials who had observed [appellant] on a regular basis during . . . his years of incarceration [and] the opinions of the psychiatrist[s] and psychologist[s] who [may have] concluded that [his] prognosis for success on parole was good." Cestari, supra, 224 N.J. Super. at 551. Moreover, the Board must consider all relevant reports and consider the psychological history as a whole, even though the most recent evaluations should carry more weight. See Trantino, supra, 166 N.J. at 175.

Appellant indicates before us his willingness to waive any confidentiality associated with his custodial treatment and counseling, so that his psychological expert may discuss same with the institutional professionals for analysis in connection with his evaluation and report. There was no record made of such request, and we decline to address the subject without a record in terms of the practical issues involved. Appellant should address the subject with the Parole Board if he wants to so supplement Dr. Figurelli's report. Given the contents of the Board's confidential appendix presented to us after execution of a "Consent Protective Order," we decline to say anything further at this time, or to direct anything beyond the remand herewith ordered for reconsideration.

The matter is remanded to the Parole Board for further consideration and for a new decision relating to appellant's parole (and FET if parole is denied) under the proper criteria after evaluating and considering the subjects we have addressed.

We decline to fix a date by which the remand proceedings shall be completed in light of appellant's challenges to the psychological evaluations and the possible desire for updates. However, we anticipate that the administrative review will be completed expeditiously, and appellant may move for an accelerated appeal if parole or transfer to a halfway house is not granted. See Trantino, supra, 166 N.J. at 194-98; see also Trantino v. N.J. State Parole Bd., 296 N.J. Super. 437, 465 (App. Div. 1997), modified, 154 N.J. 19, 39-43 (1998).

Remanded. The Appellate Division retains jurisdiction.

 

Technically, the Board affirmed a two-person Panel decision to deny parole and refer the matter to a three-member Panel to establish the FET, and the three-member Panel decision to establish the 180-month FET.

See Trantino v. N.J. State Parole Bd., 166 N.J. 113, 197, modified, 167 N.J. 619 (2001).

His conviction by guilty plea to aggravated sexual assault was merged therein.

(continued)

(continued)

11

A-5341-04T1

March 5, 2007