WILFRED LEE HOLMES 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NOT FOR PUBLICATION WITHOUT THE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

WILFRED LEE HOLMES,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

________________________________________________

July 29, 2015

Before Judges Hayden and Tassini.

On appeal from the New Jersey State Parole Board.

Wilfred Lee Holmes, 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

Appellant Wilfred L. Holmes, a New Jersey State Prison inmate, appeals from the State Parole Board's decision denying him parole and setting a future eligibility term (FET). The Parole Board submits that appellant has not met his burden of showing that its decision was arbitrary or unreasonable. We agree and affirm.

Appellant engaged in persistent juvenile delinquency. He was placed on juvenile probation and juvenile parole, which he violated. As an adult, appellant, despite incarceration and parole, continued to commit crimes of increasing violence. In 1971, 1972, and 1973, his crimes included assault with intent to rob, assault and battery on a police officer, unlawful weapons possession, theft of a motor vehicle, manslaughter, and murders. Trial courts entered judgments of conviction (JOCs) and sentenced appellant and he remains a New Jersey State Prison inmate. Mental health assessments gave the opinion that appellant presented a high risk of re-offending. The Parole Board considered the record and determined that there was a substantial likelihood that, if released on parole, appellant would commit another crime. N.J.S.A. 30:4-123.53(a). Accordingly, the Parole Board denied parole and established a FET. See N.J.A.C. 10A:71-3.21(a)(1).

Juvenile and Criminal Record

Appellant was born in 1953. As a juvenile, he committed offenses for which he was adjudicated delinquent. He was placed on juvenile probation, which he violated. Improvement was noted and he was discharged from probation. However, he committed another offense, he was again adjudicated juvenile delinquent, and he was placed in the State Home for Boys in Jamesburg. Thereafter, he was released on juvenile parole to his parents' custody. However, he committed another offense and he was again adjudicated delinquent. He was granted juvenile parole. Thereafter, he committed another offense, he was again adjudicated delinquent, juvenile parole was continued, and he was again released to his parents' custody. Thereafter, he committed another offense, he was again adjudicated juvenile delinquent, and he was again placed in the State Home for Boys in Jamesburg. He was transferred to the Yardville Reception Correctional Center and then transferred to the Annandale Correctional Facility. He was released on juvenile parole, but he committed another offense, again adjudicated juvenile delinquent, held, and then placed on juvenile parole and in a trade school in Newark.

In 1971, appellant, by then an adult, committed armed assault with intent to rob, for which in 1972, he was sentenced to an indeterminate term of incarceration. In June 1972, after serving part of his term of incarceration, he was released on parole.

In July 1972, in Newark, appellant and acquaintances, including W.M., argued and appellant alleges that they robbed him at gun point. The next day, appellant obtained a gun and shot and killed W.M. In April 1973, appellant was in Newark at a street altercation, in which B.F. was involved, and he shot and killed B.F.

Thereafter in April 1973, in West New York, appellant and others stole a car and traveled to the Atlantic City area where they were involved in a collision with an elderly woman. Appellant told the woman that he would drive her to a gas station, but instead he dragged her into the woods where he shot and killed her. He was on the run from his previous crimes and he did not want the woman to report the collision and involve police.

Thereafter in April 1973, appellant was in East Orange at a McDonald's where a disturbance occurred and a police officer responded. The appellant fled, a car chase ensued, he then stopped the car and fled on foot, and he then fired at and struck the officer. He then forced a man to drive him to a former girlfriend's home in Newark where police arrested him.

The Board's notice of decision shows that on December 6, 1973, in Essex County, the trial court sentenced appellant as follows: for manslaughter (of W.M.): eight to ten years; for murder (of B.F.): life imprisonment, consecutive; and for the assault and battery on the police officer: five to seven years concurrent. On March 4, 1974, in Atlantic County, the trial court sentenced appellant as follows: for murder: life, consecutive; for unlawful possession of a weapon: six to seven years, concurrent; and for theft or possession of the motor vehicle: nine to ten years, consecutive. The total term was eight to ten years, plus life, consecutive; plus life, consecutive; plus nine to ten years consecutive.

Evaluations, Parole Hearing, and Decision

Prison mental health assessments conducted in 2008, 2011, and 2012 by three different health care professionals all gave the opinion that appellant had a "high" prognosis for re-offending. They reported that appellant had a tendency toward violence, an antisocial personality, a lack of genuine remorse or insight regarding his criminal behavior, an extensive history of substance abuse, a need for more behavioral programs, and a need for more substance abuse programs. They noted that appellant had previous violations when under community supervision, below average institutional adjustment, extensive substance abuse problems, a lack of a high school diploma or GED, insufficient job skills and work history, and that he displayed no remorse for his crimes. Appellant smiled inappropriately, even when describing the murder of the last victim and he appeared "amused" by the interview process.

Laura Tahir, Ph.D., the psychologist who conducted the 2012 evaluation, commented that appellant's likelihood of successful completion of a projected term of parole was poor and gave the opinion that appellant was a "high risk" for future violence. During Dr. Tahir's in-depth psychological interview, appellant typically justified his failures and social irresponsibility by nonchalant indifference. Dr. Tahir noted that appellant's LSI-R (Level of Service Inventory - Revised) score of 32, based upon inmates sampled in New Jersey, indicated that he was in the "high risk" category for recidivism within two years of release.

In 2012, when appellant was eligible for parole, a Parole Board hearing officer held a hearing and referred the matter to a Parole Board panel. A notice of decision, dated April 23, 2012, shows that a two-member Board panel considered the case and denied parole. The notice of decision stated that the panel determined that there was a substantial likelihood that he would commit a new crime if released on parole at that time. The notice of decision, under "Mitigating Factors," checked the following: "Infraction free," "Participation in institutional programs," "Attempt made to enroll and participate in programs, subject to the waiting list," and "Minimum custody status achieved/maintained." Under "Reasons for Denial," the panel checked the following: "Prior criminal record noted" and "Nature of criminal record increasingly more serious." Also checked were that "opportunit[ies] on community supervision," including "probation/parole" had failed and had been "terminated/revoked" because of "commission of new offense(s)," that such "opportunit[ies] on community supervision" had "failed to deter criminal behavior" and had been violated. Also checked was "multi-crime convictions." Also checked were "Insufficient problem resolution," "Lack of insight into criminal behavior," "Minimizes conduct," and "has not addressed his violent behavior [and] more work is needed for him to gain insight [into] his crimes" as demonstrated by the panel interview, pre-panel report, and confidential material/professional report. The notice of decision noted "Risk assessment evaluation 32" and suggested "Institutional programs geared toward criminal behavior."

By letter dated May 1, 2012, the Board notified appellant of the two-member Board Panel's determination that establishing a FET within the Board's presumptive schedule may be inappropriate due to his "lack of satisfactory progress in reducing the likelihood of future criminal behavior" and that the two-member Board Panel had referred his case to a third Board Panel Member for review and establishment of the FET.

In appellant's letter dated May 21, 2012, he wrote that Oscar Doyle (a member of the two-member Board panel that issued the first notice of decision) had interviewed him, there was "clear bias" in previous hearings, and he objected to Mr. Doyle's participation in the two-member panel. Appellant acknowledged his "past criminal life." He wrote that he had "taken great pains to understand the causes of [his] negative behavior through counseling and [his] own personal introspection." He wrote that, as a result of his actions, he felt "genuine emotional pain." He also wrote that his confinement as a juvenile had caused "post incarceration syndrome." He wrote of the "positive contributions" he had made during his incarceration.

A notice of decision, dated August 15, 2012, shows that a three-member Board panel (which did not include Mr. Doyle) considered the case and also denied parole. The notice of decision's "Mitigating Factors" and "Reasons for Denial" were essentially the same as those of the earlier notice of denial. The notice of decision also stated that there would be a "360 month" FET. The three-member Board panel issued a ten-page notice of decision narrative, detailing its decision. The Board panel's narrative recounted, for example, that appellant alleged that W.M. had robbed him the day before he shot and killed W.M. and that, during the street altercation, B.F. had hurt his (appellant's) friend, so appellant shot and killed B.F. Appellant had explained that he shot at the police officer because the officer shot at him first. The three-member Board panel also wrote that appellant blamed his victims for his actions. The three-member Board panel also wrote that, while appellant explained that he was young and immature, he did not specify why, over a significant period of time, he behaved in a manner of extreme violence. The three-member Board panel noted that it had considered the regulatory parole factors. See N.J.A.C. 10A:71-3.11. The three-member Board wrote that appellant "continue[d] to be unable to identify the causes of [his] violent, murderous behavior, therefore failing to develop adequate insight into [his] deadly personality characteristics." Appellant "continue[d] to put forth a presentation that [he was] either unable or unwilling to attempt to develop adequate insight into [his] criminal personality characteristic." Appellant "continue[d] to minimize and downplay [his] violent offense[s]," and the Panel, based on a comprehensive review of appellant s entire record, determined that "it [was] clear that [he] continue[d] to remain a substantial threat to public safety."

On December 12, 2012, the three-member Parole Board panel issued a written notice of decision, amending its earlier decision by setting a 240 month FET. The three-member Board panel noted that, previously, it had mistakenly believed that appellant's parole eligibility date was in November 2002, but it was August 2010.

Appellant brought an administrative appeal from the three-member Board panel to the full Parole Board. The full Parole Board considered appellant's appeal, considered the entire record, and affirmed the three-member Board panel. The full Parole Board's written notice of final agency decision, dated July 31, 2013, identified the bases for the appeal and the Board's reasoning. The full Parole Board wrote

Based upon consideration of the facts cited above, the Board finds that the Board Panel has considered the aggregate of the information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision pursuant to N.J.A.C. 10A:71-3.18(f). In assessing your case, the Board concurs with the determination of the two-member Board Panel that a preponderance of evidence indicates that there is a substantial likelihood that you would commit a crime if released on parole at this time. The Board also concurs with the determination of the two-member Board Panel that a [FET] established pursuant to N.J.A.C. 10A:71-3.21(a) is clearly inappropriate due to your lack of satisfactory progress in reducing the likelihood of future criminal behavior and the determination to refer your case to the third Board member for the establishment of [FET]. Further the Board concurs with the determination of the three-member Board Panel to establish a [FET] pursuant to N.J.A.C. 10A:71-3.21(d) and, pursuant to N.J.A.C. 10A-71-3.21(e), the particular reasons for the establishment of said term being set forth in the Notice of Decision. Accordingly, the Board affirms the two-member Board Panel's April 23, 2012 decision to deny parole and refer your case to the three-member Board Panel to establish a [FET] and the three-member Board Panel's December 12, 2012 decision to establish a two-hundred-forty (240) month future parole eligibility term. You will be scheduled for a subsequent parole release hearing when it is appropriate.

The Parole Board acknowledges that the appellant's case falls under the pre-1997 parole standard and that he is entitled to receive commutation, work and minimum custody credits to reduce his FET, which commenced on his parole eligibility date (August 2010), thereby reducing his FET to substantially less than 240 months.

This appeal followed.

Conclusions of Law

"Parole" is a period of "supervised release" of a prisoner in which he is allowed to serve the final portion of his sentence outside of the correctional institution on certain terms and conditions in order to prepare him for "eventual return to society." State v. Black, 153 N.J. 438, 447 (1998); In re Clover, 34 N.J. Super. 181, 188 (App. Div. 1955). Parole's purpose is "to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed." Morrissey v. Brewer, 408 U.S. 471, 477, 92 S. Ct. 2593, 2598, 33 L. Ed. 2d 484, 492 (1972). That is, parole's general purpose is "rehabilitative rather than punitive in nature." Black, supra, 153 N.J. at 447.

The Parole Act of 1979 (Act) prescribes when an adult inmate becomes "primarily eligible for parole." N.J.S.A. 30:4-123.51(a). See generally, N.J.S.A.30:4-123.49 to -123.69. It is presumed that, under New Jersey's Code of Criminal Justice, "the punitive aspects of an inmate's sentence have been satisfied by the time he or she becomes eligible for parole." Black, supra, 153 N.J. at 447 (citing New Jersey Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983)).

Under the Act, an adult inmate "shall be released on parole at the time of parole eligibility," unless information supplied in a report filed pursuant to N.J.S.A. 30:4-123.54 or developed or produced in a hearing held pursuant to N.J.S.A. 30:4-123.55, "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 [N.J.S.A. 30:4-123.59] if released on parole that time." N.J.S.A. 30:4-123.53(a).

Under the Act, the State bears the burden of proof that, at the time an inmate is eligible for parole, he or she is a recidivist who should not be released. Trantino v. State Parole Bd., 166 N.J. 113, 197 (2001) (Trantino VI), mod'd 167 N.J. 619 (2001) (citing Byrne, supra, 93 N.J. at 205). Accordingly, under the Act, at the time of parole eligibility, the inmate has a legitimate expectation of release on parole, unless the State proves that there is a substantial likelihood that he will commit another crime justifying deferral. Trantino v. State Parole Bd., 154 N.J. 19, 39 (1998) (Trantino IV).

The Act creates and establishes the State Parole Board and Division of Parole. N.J.S.A.30:4-123.47(a), -123.47(c). The Act authorizes the Board to promulgate rules and regulations for proper discharge of its responsibilities. N.J.S.A.30:4-123.48(d), -123.56(a). The Act provides a process for review of parole eligibility before action by the Board. See N.J.S.A. 30:4-123.54, -123.55, -123.58. The Board's function is to grant or deny parole and, in doing so, the Board must determine whether "there is a substantial likelihood that an inmate will commit another crime if released." Trantino IV, supra, 154 N.J. at 24.

"The hearing officer, Board Panel or Board shall consider" enumerated factors in making parole decisions. N.J.A.C. 10A:71-3.11(b). Factors include "Nature and pattern of previous convictions"; "Adjustment to previous probation, parole and incarceration"; "Facts and circumstances of previous convictions"; "Aggravating and mitigating factors surrounding the offense"; "Participation in institutional programs which could have led to the improvement of problems diagnosed . . . "; "Documented changes in attitude toward self or others"; "Documentation reflecting personal goals, personal strengths or motivation for law-abiding behavior"; "Statements by the inmate reflecting on the likelihood that he or she will commit another crime . . . or the reasonable expectation that he or she will violate conditions of parole"; and "[t]he results of the objective risk assessment." N.J.A.C. 10A:71-3.11(b)(3), -3.11(b)(4), -3.11(b)(5), -3.11(b)(6), -3.11(b)(11), -3.11(b)(12), -3.11(b)(17), -3.11(b)(23). "The hearing officer, Board Panel or Board . . . in addition" to the enumerated factors, "may consider any other factors deemed relevant." N.J.A.C. 10A:71-3.11(b). "Parole decisions shall be based on the aggregate of all pertinent factors, including materials supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate." N.J.A.C. 10A:71-3.11(a).

Parole decisions have been described as "highly 'individualized discretionary appraisals.'" Trantino VI, supra, 166 N.J. at 173 (quoting Beckworth v. New Jersey State Parole Bd., 62 N.J. 348, 359 (1973)). The Board "has broad but not unlimited discretionary powers" in reviewing an inmate s record and rendering a decision. Ibid. (quoting Monks v. New Jersey State Parole Bd., 58 N.J. 238, 242 (1971)).

Parole release decisions depend upon "an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based on their experience with the difficult and sensitive task of evaluating the advisability of parole release" and "a discretionary assessment of a multiplicity of imponderables entailing primarily what a man is and what he may become rather than what he has done." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9-10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979). Among the imponderables is a prediction of an inmate s future behavior, which is recognized as subjective and the decision makers are afforded broad discretion. Puchalski v. New Jersey State Parole Bd., 104 N.J. Super. 294, 300 (App. Div. 1969).

The Parole Board panel decision is the final determination for purposes of judicial review for arbitrariness. R. 2:2-3(a)(2); N.J.A.C. 10A:71-4.2; State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (citation omitted), certif. denied, 111 N.J. 649 (1988). Judicial review of the denial of parole is subject to the same standard as other administrative reviews. Trantino VI, supra, 166 N.J. at 173. The court does not substitute its judgment for the fact-finding of an administrative agency. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (citation omitted). "If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself." Ibid. (quoting Clowes v. Terminix Int l, Inc., 109 N.J. 575, 588 (1988)).

The reviewing court must decide

(1) whether the agency's action violates express or implied legislative policy, 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.

[Trantino IV, supra, 154 N.J. at 24.]

Relative to the third standard, the reviewing court, considering the record as a whole, must determine whether there was sufficient credible evidence for the Board to have reasonably made the "essentially factual" decision of whether there is a substantial likelihood that an inmate, if released, will commit another crime. Ibid.; State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988); Trantino VI, supra, 166 N.J. at 172.

Courts accord agency actions a presumption of validity and reasonableness. In re Vey, 272 N.J. Super. 199 (App. Div.), aff d, 135 N.J. 306 (1993). The party challenging the Board s action bears the burden of demonstrating that the action was unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.), certif. denied, 135 N.J. 469 (1993). Where administrative decisions involve issues of credibility, credibility determinations by those who see and hear witnesses are afforded substantial deference. Clowes, supra, 109 N.J. at 587-88; Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

Appellant argues that the Board mistakenly considered his entire criminal record as a basis of denying parole. He argues that the Board should have considered only "new" information, i.e., arising since his last parole hearing. However, as stated above, the Board "may consider any other factors deemed relevant." N.J.A.C. 10A:71-3.11(b). Further, "application of the 1997 amendments to N.J.S.A. 30:4-123.54(c) [to an inmate convicted before amendment of the Act] does 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." Trantino v. New Jersey State Parole Bd., 331 N.J. Super. 577, 610 (App. Div. 2000), modified, aff'd in part, 166 N.J. 113 (2001) (Citations omitted). The 1997 statutory amendment "does not modify the parole eligibility standard applicable" to the inmate; "rather, it simply allows the Board to consider all available evidence relevant to the application of that standard." Trantino v. New Jersey State Parole Bd., supra, 331 N.J. Super. at 611. Accordingly, the Board's consideration of the record was not improper.

Appellant also argues that the Board, in making the parole release decision, improperly relied on the LSI-R score. However, to reiterate, the Board may rely upon "[t]he results of the objective risk assessment instrument." N.J.A.C. 10A:71-3.11(b)(23). Accordingly, the Board's consideration of the LSI-R score was not improper.

Appellant also argues that the Board, in making the parole release decision, should not consider insufficient problem resolution, lack of insight and minimization of conduct as factors. However, the Board's consideration of these matters was consistent with the above-quoted enumerated factors and proper. Further, the Board may rely upon "any other factors deemed relevant." N.J.A.C. 10A:71-3.11(b). The Board reasonably sought to determine, for example, whether or not the appellant had been able to identify, successfully explore, and address the underlying reasons for his criminal behavior and whether he required additional time for introspection and/or counseling to address his murderous behavior.

Appellant also argues that he was improperly denied access to the confidential psychological evaluation, which the Board considered in making its determination. However, consistent with relevant law, a psychological evaluation is deemed confidential, so the Board properly declined to provide it. See N.J.A.C. 10A:71-2.2(a)(1).

Appellant finally argues that the Board's decision to deny parole and give an FET outside of the presumptive term is inconsistent with its prior decisions at annual review hearings to grant him reductions in previous FETs. Where an inmate, such as appellant, "sentenced pursuant to N.J.S.A. 2A:113-4 for a term of life imprisonment," is denied parole and the Board panel establishes an FET outside of the presumptive term, "the inmate shall be scheduled for an annual review hearing." N.J.A.C. 10A:71-3.21(f). The first such annual review hearing "shall be scheduled within 18 months from the month in which the decision to deny parole was rendered. Thereafter, annual review hearings shall be scheduled every 12 months until the inmate is within seven months of the actual parole eligibility date." Ibid.

At the annual review hearing, the Board panel assesses evidence of the inmate's "progress in substantially altering those factors which led to the inmate's incarceration, and progress which may indicate that the inmate has reduced the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(f)(1). "At the conclusion of the annual review hearing, the Board panel shall: . . . iii. Determine whether the progress achieved by the inmate merits a reduction in the future parole eligibility date" or if it should "iv. Defer a decision pending receipt of additional information; or v. Continue the case until the next annual review." N.J.A.C. 10A:71-3.21(f)(2).

That is, the Board has discretion, based on an inmate's progress, to refer the inmate for a parole release hearing, or the Board may recommend a reduction in the inmate's FET. The twenty-year FET exceeds the presumptive eligibility date of three years. However, appellant, as an inmate serving a life term, will have an annual review every twelve months, so that the Board can consider his progress and consider reducing the FET.

Appellant has not shown that the Board's action was arbitrary, capricious or unreasonable or lacking substantial basis in the record, when considered as a whole.

Affirmed.