RONALD LONG VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
                          APPROVAL OF THE APPELLATE DIVISION
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          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-5196-14T3
    
    RONALD LONG,
    
            Appellant,
    
    v.
    
    NEW JERSEY STATE PAROLE
    BOARD,
    
         Respondent.
    _______________________________
    
                  Submitted February 28, 2017 – Decided             September 8, 2017
    
                  Before Judges Espinosa and Suter.
    
                  On appeal from the New Jersey State Parole
                  Board.
    
                  Ronald Long, appellant pro se.
    
                  Christopher S. Porrino, Attorney               General,
                  attorney for respondent (Lisa A.               Puglisi,
                  Assistant Attorney General, of                 counsel;
                  Christopher C. Josephson, Deputy               Attorney
                  General, on the brief).
    
    PER CURIAM
    
            Ronald    Long   (appellant)     appeals    the   May   27,   2015   final
    
    administrative decision of the New Jersey Parole Board (Board),
    denying his parole and setting a 96-month future parole eligibility
    
    term (FET).   We affirm the Board's decision.
    
         We recount only such facts as are necessary for our decision.
    
    In 1985, appellant was convicted on all counts of a thirteen-count
    
    indictment, including felony murder and a number of other crimes.
    
    He is serving a life sentence with a minimum term of thirty years
    
    and nine months on the felony murder conviction and, on the non-
    
    murder convictions, an aggregate sentence of 61.5 years with parole
    
    ineligibility of 30.75 years, to be served concurrently.      These
    
    convictions were affirmed on appeal, State v. Long, 
    119 N.J. 439
    
    (1990) (Long I) and his petitions for post-conviction relief were
    
    denied.1
    
         Appellant became eligible for parole in May 2014.   A hearing
    
    officer referred the case to a two-member panel of the Board in
    
    February 2014.    After a hearing before the two-member panel,
    
    appellant's request for parole was denied on March 17, 2014.     The
    
    
    
    1
      See State v. Long, No. A-3860-92 (App. Div. Jan. 3, 1995),
    certif. denied, 
    139 N.J. 441
     (1995) (Long II); State v. Long, No.
    A-6072-98 (App. Div. June 8, 2001), certif. denied, 
    170 N.J. 86
    (2001) (Long III); State v. Long, No. A-0066-02 (App. Div. July
    17, 2003), certif. denied, 
    178 N.J. 250
     (2003) (Long IV); State
    v. Long, No. A-4219-03 (App. Div. Jan. 27, 2005), certif. denied,
    
    183 N.J. 215
     (2005) (Long V); State v. Long, No. A-1413-07 (App.
    Div. Aug. 14, 2009), certif. denied, 
    200 N.J. 548
     (2009) (Long
    VI); State v. Long, No. A-0913-11 (App. Div. Sept. 26, 2013),
    certif. denied, 
    217 N.J. 304
     (2014) (Long VII); and State v. Long,
    No. A-4859-12 (App. Div. Oct. 15, 2014) (Long VIII).
    
                                    2                          A-5196-14T3
    two-member panel determined that "a substantial likelihood exists
    
    that [appellant] would commit a new crime if released on parole
    
    at this time."     That panel also referred the case to a three-
    
    member panel to establish a FET.
    
         Appellant sent a letter of mitigation to the Board Chairman
    
    in March 2014.     He maintained he had no criminal record because,
    
    although he was charged with four offenses in Pennsylvania prior
    
    to the December 1982 charges in New Jersey for which he was
    
    convicted, he did not plead guilty to the Pennsylvania charges
    
    until after.     His only disciplinary infraction occurred in 1993.
    
    Criminal charges against him arising from two fights while in
    
    prison occurred a number of years ago. He attained minimum custody
    
    status.   He alleged the nature of his criminal record was not
    
    increasingly more serious, and that no prior opportunities for
    
    probation had failed.     He referred the panel to a Channel 9 "I
    
    Team" report, asking that it be reviewed.           He maintained his
    
    innocence of the convictions, citing to an unreported decision to
    
    support his contention that only expert psychological analysis
    
    could link probable recidivism with a failure to admit guilt.
    
         Appellant appealed to the Board by letter in May 2014.          There
    
    he challenged the jurisdiction of the Board because there was no
    
    pre-sentence   investigation   or   pre-sentence   report   (PSR).     He
    
    alleged his constitutional rights were violated by a decision of
    
                                        3                           A-5196-14T3
    less than the full Board.     He reviewed N.J.A.C. 10A:71-3.11(b) in
    
    support of his application for parole, noting issues he raised in
    
    the   letter   of    mitigation    and   maintaining    that   favorable
    
    information    was   overlooked.    He   urged   the   Board   to    review
    
    "purported confidential information."
    
          In July 2014, a three-member panel of the Board concluded the
    
    standard FET for murder was not appropriate for appellant, see
    
    N.J.A.C. 10A:71-3.21(a)(1) & (c), imposing instead a FET of 96
    
    months.   N.J.A.C. 10A:71-3.21(d) (allowing a three-member panel
    
    to "establish a future parole eligibility date which differs from
    
    [the regulation] if . . . [it would be] clearly inappropriate due
    
    to the inmate's lack of satisfactory progress in reducing the
    
    likelihood of future criminal behavior"). A Decision Narrative in
    
    September 2014 supported the panel's decision.
    
          Appellant appealed to the Board, again raising the alleged
    
    absence of a PSR.      He asserted the panel members did not comply
    
    with their professional code of conduct and should have considered
    
    mitigating factors, including his minimum custody status, lack of
    
    a prior criminal record, and the fact that he was infraction-free
    
    while incarcerated.
    
    
    
    
                                        4                               A-5196-14T3
          The two- and three-member panels issued amended decisions
    
    in May 2015. 2     In its amended decision, the two-member panel
    
    continued   to    deny   parole,     determining    that   a   "substantial
    
    likelihood exist[ed] that [appellant] would commit a new crime if
    
    released on parole at this time" and referred the case to a three-
    
    member panel to set an appropriate FET.            It added as mitigating
    
    factors that appellant had no prior or minimal criminal record,
    
    had achieved minimum custody status and that his last institutional
    
    infraction was in 1993.          It amended the reasons for denial to
    
    remove that his prior criminal record was extensive, that a prior
    
    opportunity on parole failed to deter criminal behavior and that
    
    a prior incarceration did not deter criminal behavior.             However,
    
    the panel continued to deny parole, noting appellant's prior
    
    criminal record, the increasingly serious nature of that record,
    
    that he was incarcerated for multi-crime convictions, showed lack
    
    of insight into his criminal behavior, minimized his conduct,
    
    failed to take responsibility for the serious nature of the crimes,
    
    and   committed     a    crime     while   incarcerated,       taking    into
    
    consideration     the    panel     interview,   pre-parole      report    and
    
    documentation in the case file.
    
    
    
    
    2
      The two-member panel issued an earlier amendment in April 2014.
    We discuss those changes with the May 2015 amendments.
    
                                          5                             A-5196-14T3
         The three-member panel established a 96-month FET and issued
    
    an amended Notice of Decision. The panel noted appellant committed
    
    multiple offenses in Pennsylvania before the December 1982 murder,
    
    which   "dramatically       escalated"       his      criminality.           He    was
    
    incarcerated in New Jersey for eight separate offenses.                             He
    
    committed an assault while incarcerated.               He continued to minimize
    
    his involvement in prior criminal acts and blamed his actions on
    
    youth and the involvement of others.               By not admitting guilt, he
    
    "miss[ed]     opportunities    to    explore         [his]    motivations."         He
    
    characterized himself as "less dangerous" than his "record would
    
    otherwise reflect."
    
         Based on a "comprehensive review of the entire record,"
    
    appellant "continue[d] to remain a substantial threat to public
    
    safety."     It considered his letters of mitigation, concluding that
    
    those issues were "already a matter of record" that he had the
    
    opportunity     to   mention   these    at     his    hearing,       but   that   "the
    
    information     [he]   presented       [did]    not     outweigh       the   factors
    
    supporting the establishment of a[n] [FET] in excess of the
    
    administrative guidelines."          The panel concluded that appellant's
    
    "need to distance [himself] from responsibility for [his] actions
    
    render[ed him] unable to gain full insight into the root causes
    
    of   [his]    decisions."       He     "mitigate[d]          every    admission     by
    
    attributing [his] culpable actions to others."                  For acts where he
    
                                            6                                    A-5196-14T3
    actually admitted guilt, he maintained that his involvement was
    
    minor in nature.   He had engaged in "damage control" that showed
    
    his lack of "insight into these crimes."          He could not identify
    
    the causes of his criminal behavior.        His answers at the hearing
    
    did "little to suggest [he had] fundamentally changed and [was]
    
    no longer . . . a substantial threat."        The panel determined the
    
    96-month FET was necessary, concluding that "after thirty (30)
    
    years incarceration, [he had] not shown the requisite amount of
    
    rehabilitative   progress   in   reducing   the   likelihood   of    future
    
    criminal activity."
    
          In its final agency decision of May 27, 2015, the Board
    
    affirmed the decisions of the two- and three-member panels, finding
    
    that "the aggregate of information [had been considered] pursuant
    
    to N.J.A.C. 10A:71-3.11" and that there was support in the record
    
    and documentation in accord with N.J.A.C. 10A:71-3.18(f).                   It
    
    affirmed the two-member panel determination that the standard FET
    
    was "clearly inappropriate due to [his] lack of satisfactory
    
    progress in reducing the likelihood of future criminal behavior."
    
    The Board affirmed the determination of the three-member panel to
    
    establish a 96-month FET as set forth in the Notice of Decision.
    
         The Board took into consideration the May 20, 2015 amended
    
    Notice of Decision by the three-member panel.       The Board found the
    
    panel had "sufficient material [about] . . . his commitment
    
                                       7                                A-5196-14T3
    offenses, criminal history and personal background at the time of
    
    [his] hearing" and that appellant's argument about the lack of a
    
    PSR "had no bearing" on the panel's determination.           The Board
    
    found that the panel relied on the sentencing fact sheet that
    
    included "details regarding [his] original and final charges,
    
    dates of arrest, convictions and offense, the State's version of
    
    the offense, 'special factors' and prior record, as well as the
    
    court decisions in [appellant's] case and the 'Reasons for the
    
    Sentence' issued in [appellant's] case."
    
         The Board cited to our opinion in Long VI where we rejected
    
    appellant's PCR petition.     We stated there that the "absence of a
    
    PSR was well within the knowledge of defendant from the initial
    
    resentencing and during all periods when the various sentences
    
    were imposed."     Long VI, supra, slip op. at 20.    We concluded the
    
    PCR issue was time-barred and declined to address it on the merits.
    
         The   Board    found   that   appellant's   entire   criminal   and
    
    institutional disciplinary record was reviewed.           When he was
    
    charged in New Jersey, he already had committed "multiple offenses"
    
    in Pennsylvania and was awaiting adjudication of those, one of
    
    which featured violence and "foreshadow[ed]" his criminal offenses
    
    in New Jersey.
    
         The Board found that the panel correctly reconsidered and
    
    removed as a factor "prior opportunity on parole has failed to
    
                                        8                          A-5196-14T3
    deter criminal behavior" as a basis for denying parole.                The Board
    
    found mitigating factors were properly considered, which included
    
    appellant's risk assessment, no prior criminal record, favorable
    
    institutional adjustment, and the achievement of minimum custodial
    
    status.
    
          The Board agreed with the panel that appellant's record should
    
    not   be    considered      infraction-free        because   there     was     one
    
    infraction, but that the panel also appropriately considered that
    
    he had favorable institutional adjustment.                The Board rejected
    
    appellant's contention that the panel failed to consider gang-free
    
    status or minimum custody status because those factors were taken
    
    into consideration.         The Board rejected appellant's contention
    
    that it should not consider an assault he committed thirty years
    
    earlier while incarcerated, finding that it was appropriate to
    
    consider it.
    
          The Board rejected appellant's contention that it denied
    
    parole because he continued to maintain his innocence.                         The
    
    decision was based on sufficient credible evidence that appellant
    
    lacked     problem    resolution,      lacked   insight   into   his    criminal
    
    behavior     and     minimized   his    conduct.      The    Board     found    no
    
    constitutional violations because appellant was afforded a parole
    
    hearing that considered all records and information.                 It found a
    
    
    
                                             9                              A-5196-14T3
    substantial likelihood he would commit a new crime and denied
    
    parole.
    
         Further, the Board rejected appellant's contention there was
    
    a violation of Board policy or procedure or a violation by the
    
    panel members of the professional code of conduct or that anyone
    
    had a personal interest or demonstrated bias or prejudice.
    
         Appellant appeals the May 27, 2015 Board decision, raising
    
    these issues:
    
              POINT I. APPELLANT WAS DENIED A FAIR PAROLE
              HEARING WITHOUT A PRE-SENTENCE REPORT, AS IS
              MANDATED BY STATE LAW, AND THE ADMINISTRATIVE
              CODE GOVERNING PAROLE HEARINGS.
    
              POINT II.   THE DECISION TO DENY PAROLE AND
              IMPOSE AN EIGHT-YEAR FUTURE ELIGIBILITY TERM
              BASED   ON   'DENIAL  OF   CRIME'  AND   THE
              'SUFFICIENCY OF EVIDENCE' AT APPELLANT'S
              TRIAL, WHERE APPELLANT HAS ALWAYS MAINTAINED
              HIS INNOCENCE, ARE ARBITRARY, CAPRICIOUS AND
              SHOULD BE REVERSED.
    
              POINT III. THE PAROLE BOARD ERRED BY RELYING
              ON MISLEADING AND EXAGGERATED REASONS, AND
              EVEN FALSE FACTS, TO DENY PAROLE AND IMPOSED
              AN   EIGHT-YEAR  FUTURE   ELIGIBILITY   TERM,
              WHEREFORE THOSE DECISIONS SHOULD BE REVERSED.
    
              POINT IV.    BOARD PANEL MEMBERS FAILED TO
              COMPLY WITH THE BOARD'S PROFESSIONAL CODE OF
              CONDUCT AND RENDERED DECISIONS BASED UPON
              FALSE REASONS, WHEREFORE THE DECISIONS TO DENY
              PAROLE AND IMPOSE AN 8-YEAR FUTURE ELIGIBILITY
              TERM MUST BE REVERSED.
    
         The scope of our review is very limited.   "[T]he Parole Board
    
    is the 'agency charged with the responsibility of deciding whether
    
                                   10                          A-5196-14T3
    an inmate satisfies the criteria for parole release under the
    
    Parole Act of 1979.'"            Acoli v. N.J. State Parole Bd., 
    224 N.J. 213
    , 222 (citation omitted), cert. denied, ___ U.S. ___, 137 S.
    
    Ct. 85, 
    196 L. Ed. 2d 37
     (2016).               "The decision of a parole board
    
    involves     'discretionary        assessment[s]      of    a    multiplicity   of
    
    imponderables . . . .'"            Trantino v. N.J. State Parole Bd., 
    166 N.J. 113
    , 201 (2001) ("Trantino V") (first alteration in original)
    
    (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 
    442 U.S. 1
    , 10, 
    99 S. Ct. 2100
    , 2105, 
    60 L. Ed. 2d 668
    , 677 (1979)).
    
    "[T]he Board 'has broad but not unlimited discretionary powers' .
    
    . . . "      Id. at 173 (citations omitted).               The Board's decision
    
    regarding     parole      will    not    be    disturbed    unless    "arbitrary,
    
    capricious, or unreasonable, or [] not supported by substantial
    
    credible evidence in the record as a whole."                    In re Stallworth,
    
    
    208 N.J. 182
    ,   194    (2011)       (alteration   in   original)    (citation
    
    omitted); see also Acoli, supra, 224 N.J. at 222-23.
    
          Appellant is serving a life sentence for the murder he
    
    committed in 1982. Under the statute in effect at the time, "[t]he
    
    Parole Board's ultimate determination of parole fitness must be
    
    based on whether there is a likelihood that [appellant] will again
    
    engage in criminal activity."             Trantino v. N.J. State Parole Bd.,
    
    
    154 N.J. 19
    , 39 (1998) ("Trantino IV"); see also Williams v. N.J.
    
    
    
                                              11                             A-5196-14T3
    State Parole Bd., 
    336 N.J. Super. 1
    , 7 (App. Div.), certif. denied,
    
    
    165 N.J. 523
     (2000).
    
           Our review of the record and of appellant's contentions on
    
    appeal reveals nothing in the Board's decision that was arbitrary,
    
    capricious or unreasonable.      The Board's decision affirmed the
    
    two-    and    three-panel   member    decisions   made   after      their
    
    reconsideration of issues raised by appellant.        Those decisions
    
    removed three reasons for denial of parole, and added an additional
    
    mitigating factor.     Appellant's arguments on appeal about those
    
    four issues have no relevance because they were not the basis of
    
    the Board's decision.
    
           Appellant expressed that he did not think the Board "took the
    
    matter serious," because parole was denied and a 96-month FET
    
    imposed.      However, the Board expressly took into consideration
    
    appellant's psychological report and the factors set forth in
    
    N.J.A.C. 10A:71-3.11(b).     The Board considered appellant's prison
    
    history, participation in prison programs, counseling, his work
    
    as a paralegal and in other areas within the prison, and his
    
    minimum custody status.      It took into consideration reasons for
    
    denying his request for parole including his criminal record in
    
    Pennsylvania, a record that increased in seriousness, multi-crime
    
    convictions, a lack of insight into his criminal behavior, the
    
    denial of these crimes, and that he committed a crime while
    
                                      12                              A-5196-14T3
    incarcerated.      At the hearing in March 2014, appellant minimized
    
    his conduct, blaming others or circumstances for his offenses,
    
    which showed no insight into his behavior.
    
           Appellant was not denied a fair parole hearing because of the
    
    absence of a PSR.3     Appellant did not present new information for
    
    the Board's consideration.      He cited nothing that should have been
    
    considered, but was not.       He was time-barred in 2009 from raising
    
    the PSR issue in the appeal of his sentence and its assertion here
    
    is no more timely.      He cited no facts to support his contention
    
    of bias or prejudice.        Instead, the record shows the absence of
    
    bias because both the two- and three-member panels reconsidered
    
    based   on   the   letters   appellant   submitted   and   amended   their
    
    decisions.    He had ample opportunity at the hearings to explain
    
    why he should be entitled to parole.
    
           We disagree with appellant's contention that the Board cannot
    
    consider his denial of responsibility for his convictions. The
    
    Supreme Court affirmed his convictions.       Long, supra, 119 N.J. at
    
    504.    The issues he raised post-conviction all were rejected.          We
    
    are satisfied based on the record that the Board's decision was
    
    not arbitrary, capricious or unreasonable.
    
    
    
    
    3
      We affirmed appellant's sentence in 2009 rejecting as out of
    time his challenge based on the absence of a presentence report.
    
                                        13                           A-5196-14T3
    Affirmed.
    
    
    
    
                14   A-5196-14T3