JOHN BLAND v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4229-15T4

JOHN BLAND,

        Appellant,

v.

NEW JERSEY STATE PAROLE
BOARD,

     Respondent.
__________________________

              Submitted December 20, 2017 – Decided January 22, 2018

              Before Judges Currier and Geiger.

              On appeal from the New Jersey State Parole
              Board.

              John Bland, appellant pro se.

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Melissa Dutton
              Schaffer, Assistant Attorney General, of
              counsel; Christopher C. Josephson, Deputy
              Attorney General, on the brief).

PER CURIAM

        Appellant John Bland appeals from a March 23, 2016 final

agency decision denying his petition for parole and establishing

a thirty-six month future eligibility term (FET).                 We affirm.
       These are the facts.    On August 13, 1982, Bland committed a

burglary and robbery of a residence where J.M., age 89, P.M., age

56, and L.W., age 60, resided.      During the course of the robbery,

Bland inflicted blunt force trauma to the head of P.M. resulting

in his death the following day.         J.M. was severely beaten about

the head and remained hospitalized for eight weeks.        L.W. was also

beaten in the head and chest area, suffered a fractured jaw, and

remained hospitalized for a week.

       On December 6, 1983, Bland pled guilty to first-degree felony

murder, 
N.J.S.A.    2C:11-3(a)(3).       On June 8, 1984, Bland was

sentenced to a term of life imprisonment subject to a thirty-year

period of parole ineligibility.           This was not    Bland's first

conviction.    Bland had been previously convicted of three counts

of burglary, distribution of a controlled dangerous substance, and

disorderly conduct.     He had prior opportunities on parole and

probation, and served a prior term of incarceration.

       During his incarceration, Bland has committed twenty-three

institutional disciplinary infractions, including six "asterisk"

infractions.     Asterisk     infractions   "are   considered   the   most

serious and result in the most severe sanctions."        N.J.A.C. 10A:4-

4.1.    His most recent infraction was committed on May 28, 2002.

       On January 20, 2016, Bland became eligible for parole a third

time.    On October 22, 2015, he received an initial hearing.         The


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hearing officer referred the case to a Board panel for a hearing.

The two-member Board panel denied parole on November 16, 2015, and

established a thirty-six month FET.              Aggravating factors noted

were: (1) his prior offense record; (2) his prior opportunity on

probation failed to deter criminal behavior; (3) his numerous,

serious institutional infractions resulting in loss of commutation

time and confinement in detention and administrative segregation;

(4) his insufficient problem resolution, with "an unrealistic view

of how he would function if he were released" without "appear[ing]

to recognize the difficulty of [everyday] life," and "[h]is health

issues could complicate his ability to deal with challenges [and]

he could easily lose control of his behavior;" and (5) his failure

to   complete     a   recommended     program.    Bland   also    had   a   risk

assessment score of twenty-seven, indicating a medium risk of

recidivism.

      The panel did note some mitigating factors.                Specifically,

(1) while Bland had an offense record, it was minimal; (2) Bland

had been infraction free since the last panel; (3) Bland had

participated in institutional programs; and (4) Bland had attained

gang minimum custody status.

      Bland administratively appealed the two-member Board panel's

decision.   On March 9, 2016, the Board affirmed the Board panel's

decision    but       amended   the    Notice    of   Decision    to    include


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"institutional reports reflect favorable institutional adjustment"

as a mitigating factor and deleted "recommended programs not

completed" as a reason for denial.           On March 23, 2016, after

considering all materials in the administrative record, the Board

issued    its   final   agency   decision   denying    Bland   parole   and

establishing a thirty-six month FET.

     This appeal followed.       Bland argues:

            SUMMARY DISPOSITION REMAND SHOULD BE GRANTED
            TO SEND THIS MATTER BACK TO THE FULL NEW JERSEY
            STATE PAROLE BOARD.     CURRENTLY, THE PANELS
            HAVE AFFIRMED THEMSELVES WITH NO SUPERVISORY
            ATTENTION TO THE ERRORS GIVEN BY THE FULL
            BOARD.   THE PANELS HAVE BEEN INATTENTIVE TO
            SUCH MATTERS AS THE INCREASE OF THE FET AND
            THE LATENESS OF DECIDING THE APPEAL, IN
            VIOLATION OF THE N.J. ADMINISTRATIVE CODE AND
            DIRECTIVES OF THE COURT.

     Bland contends that given the remoteness of his crimes and

the last inmate disciplinary infraction being over twelve years

old, the Board acted arbitrarily and capriciously in considering

them as evidence that defendant is likely to commit a crime in the

future as a basis for imposing the thirty-six-month FET.

     Bland suffered a stroke some years ago, leaving him partially

disabled and limiting his physical mobility.          He argues the record

does not support the Board's conclusion that his health challenges

could alter his behavior and result in him committing future

crimes.



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     Our review of the Board's decisions is deferential.           That is

so because the Board's decisions are "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)), and are presumed to be reasonable, In re Vey, 
272 N.J. Super. 199, 205 (App. Div. 1993).             We will not disturb a

Board's determination unless: it is arbitrary, capricious, or

unreasonable; it is unsupported by sufficient credible evidence

on the record; or it violates legislative policies.            Trantino v.

N.J. State Parole Bd., 
154 N.J. 19, 24-25 (1998). The burden is

on   the   appellant   to     demonstrate    the   Board's   actions   were

unreasonable.     Bowden v. Bayside State Prison, 
268 N.J. Super.
 301, 304 (App. Div. 1993).

     Here, we find no basis on which to conclude the Board's

decision   was   arbitrary,    capricious,    or   unreasonable,   that   it

lacked fair support in the evidence, or that it otherwise violated

any legislative policies.       Under N.J.S.A. 30:4-123.53(a):

           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 there is a reasonable expectation
           that the inmate will violate conditions of
           parole imposed . . . if released on parole at
           that time.




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The Board panel based its decision on a multitude of aggravating

factors, most notable of which were Bland's numerous, serious

institutional infractions and the serious nature of his offense.

Bland's insufficient problem resolution and unrealistic view of

how he would function if released are also significant.                          The

Board's decision was further supported by Bland's risk assessment

score of twenty-seven, indicating a medium risk of recidivism.

       Although the Board recognized some mitigating factors—such

as    Bland's   favorable   institutional        adjustment    and   absence     of

infractions since his last panel hearing—it acted well within its

bounds in finding by a preponderance of evidence that Bland, if

released on parole, would likely violate conditions of parole by

committing a crime.

       Concerning the FET, when an inmate is serving a sentence for

murder, upon denial of parole, the inmate shall serve another

twenty-seven months before being considered again for parole.

N.J.A.C. 10A:71-3.21(a)(1).       However, in cases where an ordinary

FET    is   "clearly   inappropriate       due   to    the   inmate's     lack   of

satisfactory     progress   in   reducing        the   likelihood    of    future

criminal behavior," the Board may impose an FET in excess of

administrative guidelines.       N.J.A.C. 10A:71-3.21(d).               The Board

may increase or decrease the FET by up to nine months when the

Board believes based on "the severity of the crime . . . and the


                                       6
prior criminal record or other characteristics of the inmate" that

an adjustment is warranted. N.J.A.C. 10A:71-3.21(c).         The thirty-

six month FET imposed by the Board is neither arbitrary nor

capricious.    The Board considered all applicable mitigating and

aggravating factors when coming to the FET determination and acted

well within its authority in increasing defendant's FET.

     Bland contends there is no basis for the Board's determination

that his health issues "could complicate his ability to deal with

challenges and he could easily lose control of his behavior."         The

Board's determination is amply supported by the findings and

conclusions    of   the   evaluator   who    performed     an     in-depth

psychological evaluation of Bland.

     Bland argues the confidential psychological evaluation should

be declassified so that he can respond to its contents.           Reports

"concerning an offender's medical, psychiatric or psychological

history,    diagnosis,    treatment   or    evaluation"     are    deemed

confidential. N.J.A.C. 10A:71-2.2(a). Confidential reports shall

not "be reviewed by any person except a Board member or employee

or individual or law enforcement agency authorized by the Board

or by the Chairperson."    N.J.A.C. 10A:71-2.2(b).       Inmates are not

afforded disclosure of confidential reports.         N.J.A.C. 10A:71-

2.2(c).    We deem the nondisclosure of the psychological evaluation




                                  7
to be proper.      See Thompson v. N.J. State Parole Bd., 
210 N.J.

Super. 107, 126 (App. Div. 1986).

    Having reviewed the record in light of the well-accepted

standards,    including    the    psychological        evaluation    and    other

materials    in   the   confidential       appendix,    we   conclude      Bland's

remaining    arguments    are    without    sufficient       merit   to   warrant

further discussion in a written opinion.           R. 2:11-3(e)(2).

    Affirmed.




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