RONALD ROBBINS 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NOT FOR PUBLICATION WITHOUT THE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

RONALD ROBBINS,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

____________________________________

Submitted April 30, 2013 Decided

Before Judges Yannotti and Hoffman.

On appeal from the New Jersey State Parole Board.

Ronald Robbins, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Ronald Robbins appeals from a final determination of the New Jersey Parole Board (Board), which refused to shorten his thirteen-year future eligibility term (FET). We affirm.

On April 14, 1983, Robbins was sentenced to a term of seventy-five years of incarceration, with a twenty-year period of parole ineligibility, after a jury found him guilty on two counts of first-degree robbery, two counts of first-degree kidnapping, one count of first-degree aggravated sexual assault, one count of second-degree aggravated assault, and one count of second-degree possession of a weapon for an unlawful purpose. Evidence presented in that case indicated that Robbins had kidnapped two teenagers who were parked in a car, assaulted the male and locked him in the trunk of a stolen car, and threatened the female with a gun before sexually assaulting her.

On March 10, 2000, Robbins was sentenced to five years of imprisonment, with a two-and-one-half year period of parole eligibility, as a result of his conviction on two counts of aggravated assault. In that matter, evidence was presented indicating that Robbins threw a bucket of scalding water, soup and detergent at a corrections officer, causing the officer to sustain severe burns. The judgment of conviction did not specify whether the sentence was to be served consecutively or concurrently to the 1983 sentence.

Robbins first became eligible for parole in June 2004. A two-member Board panel denied parole, and referred the matter to a three-member panel to establish an FET longer than the

presumptive FETs set forth pursuant to N.J.A.C. 10A:71-3.21(d). On November 3, 2004, the panel established a twenty-year FET.

In November 2005, we determined that Robbins' conviction in 2000 of aggravated assault should run consecutively to his 1983 sentence. State v. Robbins, No. A-1038-04 (App. Div. Nov. 29, 2005). Thereafter, the Board advised Robbins that, because of the change in the judgment of conviction, the decision on his parole application was subject to the standard established in an amendment to N.J.S.A. 30:4-123.53(a), which took effect on August 19, 1997. That standard allows the Board to deny parole if it finds that there is a reasonable expectation the inmate will violate conditions of parole if released. Ibid.

On March 9, 2006, the Board informed Robbins that the two-member and three-member panels had issued amended decisions applying that standard, and determined that there was a reasonable expectation he would violate the conditions of parole if released. The Board said the three-member panel had established a thirteen-year FET. Robbins appealed from the Board's decision.

He argued that: (1) the application of the new parole standard violated his right to be free from ex post facto laws; (2) the Board failed to monitor his progress with annual reviews; (3) a Board member was biased against him and should

not have participated in the decision; (4) the Board panels erred by failing to consider certain allegedly favorable psychological evaluations; (5) the panels had impermissibly relied upon a confidential psychological evaluation; and (6) the Board erroneously relied on the confidential psychological evaluation and retaliated against him for having sought a remand. Robbins v. N.J. State Parole Bd., No. A-4394-06 (App. Div. Dec. 5, 2008) (slip. op. at 9). We rejected these arguments and affirmed the denial of parole and the thirteen-year FET. Id. at 12.

By letter dated February 2, 2011, Robbins submitted an application to the Board, seeking a reduction of his FET to thirty-six months or less, based on an amendment to N.J.S.A. 30:4-123.56, which precluded the Board from establishing an FET that is "more than three years" after the "inmate was denied release." L. 2009, c. 330, 6, effective Aug. 1, 2010. Robbins asserted that, although the statutory amendment was not in effect when his FET was established, the amendment indicated that his FET was not appropriate.

By letter dated February 18, 2011, the Board denied Robbins' application. The Board stated that that the amendment to N.J.S.A. 30:4-123.56 did not apply because it was enacted after the Board had denied parole and established the thirteen-

year FET, and after its decision was affirmed on appeal. This appeal followed.

Robbins raises the following arguments for our consideration:

POINT ONE

THE RESPONDENT['S] FINAL DECISION WHICH RENDERED [A] ONE-HUNDRED AND FIFTY-SIX MONTH[] TERM/SENTENCE AGAINST THE APPELLANT IS ARBITRARY AND CAPRICIOUS, AND WAS NOT BASED ON FUNDAMENTAL FAIRNESS, SUBSTANTIAL EVIDENCE AS REQUIRED BY N.J.S.A. 30:4-123.53(a). (Partially Raised Below).

POINT TWO

THE PAROLE BOARD MEMBERS [L.F., K.S., J.C., AND O.D.] FURTHER VIOLATED APPELLANT'S DUE PROCESS RIGHTS BY DEPRIVING HIM OF THE ESTABLISHED ANNUAL REVIEW HEARING PURSUANT TO N.J.A.C. 10A:71-3.21(d); AND N.J.S.A. 30:4-123.52(c); APPELLANT WAS DENIED HIS CONSTITUTIONALLY PROTECTED EXPECTANCY IN RECEIVING A FAIR PAROLE BOARD HEARING[] & DECISION AND IN VIOLATION OF FUNDAMENTAL FAIRNESS OF THE NEW JERSEY STATUTES REGARDING PAROLE PROCEDURES, LEGISLATIVE POLICIES L. 2009, c. 330, 6. (Partially Raised Below).

POINT THREE

APPELLANT MAINTAINS THAT AN UNCONSTITUTIONAL MODIFICATION IN ADMINISTRATIVE CODE CONSTRUCTION AND CURRENT PAROLE ACT STATUTORY CONSTRUCTION, [IMPERMISSIBLY] PERMITS PAROLE BOARD MEMBERS TO BE SEATED WITH AN OVERALL PREDISPOSITION TOWARDS DENYING PAROLE TO TITLE 2A AND 2C OFFENDERS CONVICTED OF FIRST AND SECOND DEGREE SERIOUS OFFENDERS; AS WELL, UNCONSTITUTIONALLY PROHIBITS A FAIR CROSS-SECTION OF THIS STATE'S RESIDENTIAL COMMUNITY WITHOUT A BACKGROUND IN LAW ENFORCEMENT, FROM BEING

SEATED AS A MEMBER OF THE BOARD. (Not Raised Below).

POINT FOUR

THE PAROLE BOARD HAS DEMONSTRATED ITS INABILITY TO FOLLOW AND APPLY THE LAW THE ADMINISTRATIVE CODE REGULATIONS PERMITTING "HITS" OUTSIDE OF THE PRESUMPTIVE GUIDELINES SHOULD BE STRUCK[]DOWN AS ARBITRARY AND UNCONSTITUTIONAL. (Raised Below).

POINT FIVE

THE STANDARD OF REVIEW FOR PAROLE CONSIDERATION OF A TITLE 2C CONVICTION OCCURING IN THE 1980's IS WHETHER THERE IS A SUBSTANTIAL LIKELIHOOD THAT AN INMATE WILL COMMIT A CRIME UNDER THE LAWS OF THIS STATE IF RELEASED ON PAROLE. (Raised Below).

POINT SIX

THE RESPONDENT['S] FAILURE TO CONSIDER MITIGATING FACTORS AT PAROLE HEARINGS [IS] IN DIRECT VIOLATION OF THE UNITED STATES & NEW JERSEY CONSTITUTION[S] ON VAGUE LAW AND PROCEDURES DEFINING THE WORD REMORSE AND ITS LEVEL OF ACCEPTANCE AND DEGREE OF GENUINE SINCERITY WHEN EVALU[A]TING AN INMATE'S SUITABILITY FOR PAROLE RELEASE WHAT CONSTITUTE[S] REMORSE AND LACK OF INSIGHT INTO [THE INMATE'S] CRIMINAL BEHAVIOR. (Raised Below).

POINT SEVEN

APPELLANT REQUESTS ESTABLISHMENT OF A BLUE RIBBON PANEL FOR THE EXPRESS PURPOSE OF REVIEWING NEW JERSEY'S INMATE POPULATION POLICY WITH REGARD TO LIFERS AND LONG-TERM OFFENDERS, THEIR ELIGIBILITY FOR PAROLE RELEASE, WHEREAS THE COMMITTEE SHALL BE COMPRISED OF EIGHT MEMBERS WHO ARE RESIDENTS OF THIS STATE, REPRESENTING A FAIR CROSS SECTION OF THE COMMUNITY WITH NO OR VERY FEW OF THEM WITH LITTLE AFFILIATION TO LAW ENFORCEMENT, AND THE PANEL BEING APPOINTED BY THE NEW JERSEY SUPREME COURT. (Not Raised Below).

We note initially that the issues that Robbins raises on this appeal pertain to the Board's March 9, 2006 decision denying parole and establishing the thirteen-year FET. As we have explained, Robbins appealed from that decision and raised many of the issues that he raises in this appeal. Robbins may not, however, re-litigate issues resolved in that appeal, nor may he raise issues that he could have raised in that case.

Thus, this appeal is limited to a single question, that is, whether the Board erred by denying Robbins' application to reduce his thirteen-year FET to three years or less, based on the 2009 amendment to N.J.S.A. 30:4-123.56. The scope of our review is limited to determining whether the Board's decision was arbitrary, capricious or unreasonable, or contrary to law. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001).

We are satisfied that the Board did not err by refusing to shorten Robbins' FET. As the Board pointed out in its decision, the 2009 amendment to N.J.S.A. 30:4-123.56 did not, by its terms, require it to reduce an FET that had been previously established and affirmed on appeal. Moreover, after the Board's decision denying Robbins' application to shorten the FET, legislation was enacted which again amended N.J.S.A. 30:4-123.56 and deleted the three-year limit on FETs. L. 2011, c. 67, 1, effective May 9, 2011. Therefore, Robbins' claim that N.J.S.A.

30:4-123.56 requires the reduction of his FET is entirely without merit.

Affirmed.

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