EDWARD FLEMMING 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NOT FOR PUBLICATION WITHOUT THE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-2390-18T1

EDWARD FLEMMING,

          Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

          Respondent.


                    Submitted January 7, 2020 - Decided February 24, 2020

                    Before Judges Currier and Firko.

                    On appeal from the New Jersey State Parole Board.

                    Edward Flemming, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Jane C. Schuster, Assistant Attorney
                    General, of counsel; Christopher Josephson, Deputy
                    Attorney General, on the brief).

PER CURIAM
        Appellant Edward Flemming appeals from the final administrative

decision of the New Jersey State Parole Board (Board), denying parole and

setting a thirty-six-month future eligibility term (FET). We affirm.

        Appellant is currently serving a life sentence for the murders of his wife 1

and her sister in 1979. While incarcerated, appellant committed thirty-five

institutional disciplinary infractions, including fifteen "asterisk" (serious)

infractions, the most recent of which was in 2002.

        After appellant became eligible for parole for the sixth time in March

2018, a hearing officer referred his case to a two-member Board panel for a

hearing. The panel denied parole based on (1) the facts and circumstances of

the offense, specifically, commission of a double murder; (2) the prior offense

record; (3) the nature of the criminal record becoming increasingly serious; (4)

the commitment to incarceration for multiple offenses; (5) appellant's

commission of numerous, persistent institutional disciplinary infractions serious

in nature, resulting in loss of commutation time and confinement in detention

and administrative segregation, with the most recent infraction occurring in

August 2002; and (6) appellant's insufficient problem resolution, specifically, a

lack of insight into criminal behavior, minimization of conduct, a failure to


1
    The record also refers to appellant's wife as his girlfriend.
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sufficiently address a substance-abuse problem, and the results of an objective

risk-assessment evaluation indicating a "moderate" risk of recidivism.

       The two-member panel also found several mitigating factors: (1) minimal

offense record; (2) infraction-free since the last panel hearing; (3) participation

in program(s) specific to behavior; (4) participation in institutional program(s);

(5) institutional reports reflecting favorable institutional adjustment; (6)

minimum custody status achieved or maintained; and (7) restoration of

commutation time. In April 2018, for reasons not explained in the record, the

two-member panel vacated its decision to deny parole.

       In May 2018, a two-member panel denied parole and set a thirty-six-

month FET. The decision was based on the same factors articulated by the first

panel. The panel stated: "Inmate shows a clear lack of understanding of his

domestic violence and the effects it had on one of his victims. He, despite

programming, blames victim [and] her behavior as a means to justify these two

murders. [Appellant] [s]hows no insight or remorse for his violent behavior and

its effects."

       The full Board issued a final agency decision on November 21, 2018,

affirming the denial of parole and thirty-six-month FET. The Board concurred

with the two-member panel in concluding that "a preponderance of the evidence


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indicates that there is a substantial likelihood that [appellant] would commit a

crime if released on parole at this time."

      On appeal, appellant argues that the Board failed to consider all

information in rendering its decision and that he was denied his right to

procedural due process. We disagree.

      Our standard of review of administrative decisions by the Board is limited

and "grounded in strong public policy concerns and practical realities." Trantino

v. N.J. State Parole Bd. (Trantino II),  166 N.J. 113, 200 (2001). "The decision

of a parole board involves 'discretionary assessment[s] of a multiplicity of

imponderables . . . .'" Id. at 201 (alteration in original) (quoting Greenholtz v.

Inmates of Neb. Penal and Corr. Complex,  442 U.S. 1, 10 (1979)). "To a greater

degree than is the case with other administrative agencies, the Parole Board's

decision-making function involves individualized discretionary appraisals."

Ibid. (citing Beckworth v. N.J. State Parole Bd.,  62 N.J. 348, 358-59 (1973)).

      Consequently, our courts "may overturn the Parole Board's decisions only

if they are arbitrary and capricious." Ibid. With respect to the Board's factual

findings, we do not disturb them if they "could reasonably have been reached on

sufficient credible evidence in the whole record." Id. at 172 (internal quotation




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marks omitted) (quoting Trantino v. N.J. State Parole Bd. (Trantino I),  154 N.J.
 19, 24 (1998)).

      Because appellant committed the offenses for which he is incarcerated in

1979, his parole eligibility is governed by  N.J.S.A. 30:4-123.53(a), which states

that an inmate shall be released on parole unless "by a preponderance of the

evidence . . . there is a substantial likelihood that the inmate will commit a crime

under the law of this State if released on parole at such time."  N.J.S.A. 30:4-

123.53(a), L. 1979, c. 441, § 9; N.J.A.C. 10A:71-3.10(a); see Perry v. N.J. State

Parole Bd.,  459 N.J. Super. 186, 194 (App. Div. 2019) (explaining that "[p]arole

for a conviction imposed on offenses committed before August 18, 1997, 'is

governed by the standard[s] in  N.J.S.A. 30:4-123.53(a) and 30:4-123.56(c) prior

to the amendment of those statutes on that date.'") (quoting Williams v. N.J.

State Parole Bd.,  336 N.J. Super. 1, 7 (App. Div. 2000)). The State has the

burden to meet the standard. Trantino II,  166 N.J. at 197.

      In its determination of parole eligibility, the Board must consider the

aggregate of all pertinent factors, including twenty-three enumerated, non-

exhaustive factors. N.J.A.C. 10A:71-3.11(a) to (b). We are satisfied that the

Board properly reviewed the relevant evidence and statutory factors in

considering and denying appellant parole. The Board also considered several


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mitigating factors. In addition, the Board advised its review of the confidential

report had a significant impact in its decision to deny parole and set an FET.

       In addressing the FET, when a panel denies parole to an inmate serving a

sentence for murder, the standard FET is twenty-seven months.            N.J.A.C.

10A:71-3.21(a)(1). However, the FET "may be increased or decreased by up to

nine months when, in the opinion of the Board panel, the severity of the crime

for which the inmate was denied parole and the prior criminal record or other

characteristics of the inmate warrant such adjustment."        N.J.A.C. 10A:71-

3.21(c). Here, the panel increased the standard FET by nine months. In doing

so, the panel considered the nature and circumstances of appellant's offense, his

institutional adjustment, and his insufficient problem resolution.

       The Board's findings are neither arbitrary nor unreasonable, but rather are

supported by credible evidence. The Board has authority to make the assessment

as to the expectation that an inmate will commit a crime if released on parole.

The Board's decision to deny parole and set a thirty-six-month FET is supported

by sufficient credible evidence in the record and consistent with the applicable

law.

       We discern no merit to appellant's argument that he was denied his due

process rights because the Board did not provide him with a representative to


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assist him during his parole hearing. Under N.J.A.C. 10A:71-2.11, a parole

counselor or other Board representative is assigned to each State correctional

facility "to assist inmates on all parole procedures, including any appearances

before a hearing officer, Board panel or the Board." In preparing for a parole

release hearing, an inmate "shall have the right to be aided by a Board

representative pursuant to N.J.A.C. 10A:71-2.11." N.J.A.C. 10A:71-3.13(g).

      These regulations require the provision of an agency representative at

each correctional facility to assist inmates in preparing for their appearances

before the Board.       This includes obtaining and submitting relevant

documentation related to the parole proceeding and advising inmates on parole

procedures.   Here, the record reflects a parole counselor was present at

appellant's hearing to provide him assistance.

      To the extent we have not addressed all of appellant's contentions, we find

they lack sufficient merit to warrant discussion in a written decision. R. 2:11-

3(e)(1)(E).

      Affirmed.




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