FRANK HUBBARD VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3564-18T1
FRANK HUBBARD,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
______________________
Submitted May 14, 2020 – Decided May 29, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the New Jersey State Parole Board.
Frank Hubbard, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Christopher C. Josephson, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant Frank Hubbard appeals from the March 27, 2019 final agency
decision of the New Jersey State Parole Board (Board) denying him parole and
imposing a thirty-four-month future eligibility term (FET). We affirm.
I.
The following facts are derived from the record. Hubbard is serving a life
sentence, with a mandatory minimum term of twenty-five years, for a 1981
murder and robbery. Hubbard shot a man in the face and neck while robbing
him with the assistance of four others. He committed the 1981 crimes while he
was on parole for several prior convictions, including a 1968 murder and a 1974
atrocious assault and battery, and several weapons offenses.
Hubbard has an extensive criminal record, including juvenile
adjudications. As an adult, Hubbard had two prior opportunities on probation
and one prior opportunity on parole. He also had two prior terms of
incarceration. While in prison, Hubbard was adjudicated guilty of twenty-one
disciplinary infractions, including fifteen asterisk offenses, which are
considered more serious. His most recent infraction was committed on May 26,
2005. That offense involved the use of a prohibited substance, such as a drug,
intoxicant, or related paraphernalia not prescribed by the medical staff.
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Hubbard become eligible for parole for the fourth time in 2018. After a
hearing, a two-member Board panel denied parole and established a thirty-four-
month FET. Hubbard appealed to the full Board.
On March 27, 2019, the Board affirmed the panel's decision after
determining there was a substantial likelihood Hubbard would commit another
crime if released on parole. The Board cited a number of factors identified in
N.J.A.C. 10A:71-3.11(b) in support of its decision, including Hubbard's
extensive criminal history, increasingly serious criminal offenses, prior failures
on probation and parole, prison disciplinary history, drug use, prior
incarcerations, insufficient problem solving, confidential reports, including
mental health reports, lack of insight into his criminal behavior, and high risk of
recidivism.
In mitigation, the Board found that Hubbard has been infraction free since
his last appearance before a Board panel, has participated in programs specific
to his problematic behavior, and received reports of his favorable institutional
adjustment. The Board noted that "although it appears that you have made some
progress, your criminal behavior is deeply rooted as evidenced by your very
extensive criminal record." The Board also acknowledged Hubbard's "initial
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effort at rehabilitation" but found it "does not equate to a change in your
behavior."
This appeal followed. Hubbard raises the following arguments for our
consideration:
POINT I
THE TWO[-]MEMBER PANEL ABUSED ITS
DISCRETION IN DENYING PAROLE; RELIANCE
ON EVENTS OCCURRING [FIFTY] AND [FORTY-
FOUR] YEARS AGO AND SELECTIVE
CONSIDERATION OF EVIDENCE WAS
ARBITRARY AND CAPRICIOUS.
POINT II
PAROLE BOARD'S DENIAL OF PAROLE WAS
NOT SUPPORTED BY THE EVIDENCE.
POINT III
THE BOARD FAILED TO TAKE INTO ACCOUNT
THE ISSUE OF YOUTHFUL CULPABILITY.
POINT IV
INCONSISTENCY IN PAROLE BOARD'S
DECISION[-]MAKING PROCESS DENIES
APPELLANT APPROPRIATE DUE PROCESS AND
A FAIR HEARING.
POINT V
BOARD VIOLATED APPELLANT'S DUE PROCESS
RIGHTS AND DENIED HIM A FAIR HEARING.
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POINT VI
THE FULL BOARD ABUSED [ITS] DISCRETION
BY CONTINUING TO FOCUS ON EVENTS
OCCURRING OVER FORTY YEARS AGO.
POINT VII
THE BOARD APPLIED THE INCORRECT
STANDARD FOR PAROLE FITNESS, AND AS
SUCH, APPELLANT'S DUE PROCESS RIGHTS
HAVE BEEN VIOLATED.
II.
We accord considerable deference to the Board, and our review of its decision
is limited. Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div. 2004).
We will overturn a Parole Board decision only if it is arbitrary and capricious.
Perry v. N.J. State Parole Bd., 459 N.J. Super. 186, 193 (App. Div. 2019). An
appellate court must not substitute its judgment for that of the agency, and an
agency's decision is accorded a strong presumption of reasonableness.
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
The burden of showing that an action was arbitrary, unreasonable, or capricious
rests upon the appellant. Barone v. Dep't of Human Servs., 210 N.J. Super. 276,
285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
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For offenses committed before August 18, 1997, "the Parole Board may
deny parole release if it appears from a preponderance of the evidence that 'there
is a substantial likelihood that the inmate will commit a crime under the laws of
this State if released on parole at such time.'" Williams v. N.J. State Parole Bd.,
336 N.J. Super. 1, 7 (App. Div. 2000) (quoting L. 1979, c. 441, § 9). When
reaching a decision under this standard, the Board must consider the aggregate
of all pertinent factors, including those set forth in N.J.A.C. 10A:71-3.11(b).
After carefully considering the record in light of the applicable legal
principles, we affirm the Board's well-reasoned final agency decision, which is
supported by sufficient credible evidence. R. 2:11-3(e)(1)(D). We add only the
following brief comments.
Hubbard has an extensive criminal record involving serious offenses,
including two murders. His latest murder was committed while he was on parole
for a prior killing. Although he has not committed disciplinary infractions in
prison since 2005 and has begun to accept responsibility for his criminal acts,
the Board's denial of parole was well within its discretion. In addition, Hubbard
was provided with all due process protections to which he was entitled,
including consideration of his parole plan, and reports detailing his recent
favorable adjustment in prison. We do not agree with his argument that the
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Board unduly focused on his crimes, given how long ago they happened. While
those offenses took place several decades ago, the circumstances of Hubbard's
offenses, including his apparently inability to control his criminal behavior,
remain relevant to the Board's determination of whether he is substantially likely
to commit a crime if released on parole.
We reach the same conclusion with respect to the Board's establishment
of a thirty-four-month FET. An inmate serving a sentence for murder is
ordinarily assigned a twenty-seven-month FET after a denial of parole. See
N.J.A.C. 10A:71-3.21(a)(1). However, the standard 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 Board panel increased the standard FET by
seven months based on the nature and circumstances of Hubbard's offenses and
his insufficient problem solving. That decision is supported by the record. We
note that the FET commenced on Hubbard's parole eligibility date, December
22, 2018, and will be reduced by commutation, work, and minimum custody
credits because he falls under the pre-1997 standard for parole release. N.J.S.A.
30:4-123.53(a). The Board panel considered this when setting the FET.
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To the extent we have not addressed other arguments raised by Hubbard,
we conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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