MEMORANDUM OPINION
*1 In 1987, Patrick J. Harrington Jr. pleaded guilty, pursuant to an Alaska Criminal Rule 11 plea agreement, to one count of first-degree murder for the murder of fourteen-year-old S.W.1 Harrington was sentenced to 99 years of incarceration with no time suspended.
In 2019, after serving 33 years of his sentence, Harrington applied for discretionary parole. The Alaska Parole Board denied Harrington's application and restricted his ability to reapply for discretionary parole for ten years. Harrington filed an application for post-conviction relief challenging the Parole Board's decision. The superior court denied Harrington's post-conviction relief application, concluding that the Board's decision was properly anchored in law and was supported by substantial evidence.
Harrington now appeals, raising three claims of error. First, Harrington argues that the superior court erroneously dismissed his application for post-conviction relief because he claims the Parole Board's interpretation and application of AS 33.16.100(a)(4) — a factor that the Board must find before granting discretionary parole — was incorrect and that the Board's ultimate denial of parole was an abuse of discretion. Second, Harrington claims that the superior court erred by affirming the Board's requirement that Harrington serve an additional ten years before he will be eligible to reapply for discretionary parole. And finally, Harrington claims that he was denied the right to an impartial tribunal.
For the reasons explained in this decision, we reject Harrington's claims.
Background facts and proceedings
In 1986, twenty-two-year-old Harrington randomly attacked a fourteen-year-old boy, S.W., who was riding his bicycle. Harrington bound S.W.’s hands and feet, put duct tape over his mouth, sexually assaulted him, shot him in the back of the head, and dropped him— still alive and bound — into a pond where S.W. soon died from drowning and his injuries. Law enforcement found S.W.’s remains days later, partially submerged in a shallow end of the pond, with S.W.’s pants and underwear partially pulled down. Harrington already had a notable criminal history and had been released on parole only four months prior to the murder.2
Harrington entered into a Criminal Rule 11 plea agreement with the State in which he agreed to plead guilty to first-degree murder in exchange for dismissal of the first-degree sexual assault charge and the possibility of discretionary parole. Sentencing was left to the court's discretion.
The superior court sentenced Harrington to 99 years with no time suspended and recommended that Harrington participate in mental health and sex offender treatment while incarcerated. Harrington did not appeal his conviction or sentence.
*2 After serving one-third of his sentence, Harrington applied for discretionary parole.3 Harrington's institutional probation officer recommended that the Parole Board deny parole and that Harrington be allowed to reapply in ten years with a “precondition to complete sex offender treatment.” The probation officer explained that Harrington had not yet been eligible to participate in sex offender treatment and “based on the randomness and brutality of the murder of the juvenile male,” early release at that time would be “inappropriate.”
On July 19, 2019, the Parole Board convened, considered Harrington's application, and denied parole. During the hearing, the Board noted that Harrington had scored as “moderate risk” on his department-approved risk assessment, and, when explaining its ultimate denial of parole, said, “[it] feels that, in this case, condemnation is yet to be met.”
The Parole Board subsequently issued a letter to Harrington further explaining its decision. In this letter, the Board recognized that Harrington had done well during his incarceration and had used the time to “complete multiple rehabilitative programs,” but stated “the seriousness of the crimes [he] ha[d] been convicted of cannot be overlooked.” The Board held that to “release [Harrington] at this time would diminish the seriousness of [his] crimes and negatively impact the victim.” The letter indicated that Harrington would be eligible to reapply for discretionary parole in ten years.
Harrington moved for reconsideration of the Parole Board's decision. In a supporting memorandum, Harrington argued, inter alia, that the Board's decision was not supported by reason or the facts of his case and that proscribed procedures were not followed.
In a second letter, responding to Harrington's request for reconsideration, the Parole Board stated that it had reviewed Harrington's “entire file,” including his “discretionary parole report and sentencing documents.” The second letter reiterated that “[d]ue to the unusually cruel and sadistic circumstances of [Harrington's] case, the Board feels strongly that [he] simply ha[s] not served enough time.” In providing Harrington “corrective action for future appearances,” the Board stated that it felt the additional time he will have to serve before appearing before them again “is considered the required corrective.” The Board ultimately declined to reconsider its prior decision.
Harrington filed an application for post-conviction relief challenging the Parole Board's decision. Harrington argued that the Board had no reasonable basis to deny Harrington's application for discretionary parole, that its decision was an abuse of discretion, and that he was denied due process.
The State moved for summary disposition of Harrington's application, arguing that (1) the Parole Board has broad discretion to deny discretionary parole and acted properly and within its authority, (2) the Board's explanation of its denial was sufficient to satisfy due process, and (3) the ten-year restriction on reapplication was within the Board's discretion and not a violation of due process. Harrington filed a cross-motion for summary disposition. The superior court held oral argument and then took the matter under advisement.
The superior court ultimately agreed with the State's arguments and granted the State's motion for summary disposition. The superior court held that the reasons cited by the Parole Board in support of its denial of discretionary parole — that release would “diminish the seriousness of” Harrington's crime and would have a negative impact on the victim — were appropriate factors to weigh in making its decision. The court found that the Board “provided substantial evidence, appropriately considered under Alaska law, that provide[d] a reasonable basis for its decision.”
*3 Regarding the Parole Board's decision to foreclose Harrington from reapplying for discretionary parole for ten years, the superior court noted that the Board had the discretion to restrict Harrington from ever applying again, but that it instead accepted the ten-year set-off recommended by Harrington's probation officer. The court held it is “perfectly reasonable that the board ask for certain positive behaviors to be extended for certain lengths of time, to prove support of consistent behavior,” and noted the Board apparently felt that Harrington could not be eligible for parole “until at least ten more years of positive conduct was evident.”
The Parole Board did not misinterpret or misapply AS 33.16.100(a)(4)
Prisoners who are eligible for discretionary parole under the terms of their sentence become eligible to apply for discretionary parole after serving a statutorily required portion of their sentence.4 After an eligible prisoner applies for discretionary parole, the Parole Board considers the application.5 Under AS 33.16.100(a), the Board may grant discretionary parole to an eligible prisoner if it determines a “reasonable probability exists” that:
(1) the prisoner will live and remain at liberty without violating any laws or conditions imposed by the Parole Board; (2) the prisoner's rehabilitation and reintegration into society will be furthered by release on parole; (3) the prisoner will not pose a threat of harm to the public if released on parole; and (4) release on parole would not diminish the seriousness of the crime.6
If the Parole Board finds that all four of these criteria are met, it may — but is not required to — grant parole.7
This Court reviews the Parole Board's factual determinations to assess whether the decision was supported by substantial evidence.8 The Board's “exercise of its discretionary authority is reviewed under the ‘reasonable basis’ standard, to insure that its determinations are supported by evidence in the record as a whole and there is no abuse of discretion.”9
First, Harrington argues that the Parole Board improperly denied his application for discretionary parole because it focused too narrowly on the type of offense he committed. In Stoneking, we held that the Board may not deny an application for discretionary parole “simply because the defendant was convicted of a crime the Board categorically deems ‘serious,’ including murder, nor may it deny parole based on the personal opinions of the board members regarding the appropriate sentence for a given offense.”10 However, when the specific circumstances of the defendant's offense “are significantly aggravated or egregious,” the Board may deny the defendant's application for discretionary parole, pursuant to AS 33.16.100(a)(4), “if releasing the defendant would engender disrespect for the law or would be incompatible with societal norms.”11
Harrington points to several statements made by the Parole Board that are potentially problematic when read in isolation, but we conclude that the record as a whole indicates that the Board did not deny parole because Harrington committed murder. The Board found that Harrington “committed an unprovoked, execution style murder and rape of a 14-year-old boy whom [he] sa[id] was in the wrong place at the wrong time,” and that the circumstances of the crime were “unusually cruel and sadistic.” Given these individual findings, the record establishes that the Board considered the specific aggravated details of Harrington's offense and did not simply base its decision on the category of the offense for which he was convicted.
*4 Second, Harrington argues that the Parole Board erred by making improper considerations and giving inappropriate weight to certain factors when it decided to deny his application for discretionary parole. Specifically, he argues that the Board did not properly compare his application to those of similarly situated applicants, gave undue consideration to the statement made by the victim's family, and failed to consider his rehabilitation along with other relevant factors. We disagree.
Harrington claims that the Parole Board made an improper comparison when a Board member said that there are “a lot of folks who, as young adults, maybe had some sort of the same issues ... that you did. And they don't rape and murder a child.” He contends that instead of asking whether Harrington's conduct was excused by his former issues, the Board was “required to assess whether such issues distinguished Harrington meaningfully from other murderers who had come before the board.” But the Board did compare Harrington to other murderers who had come before it; the Board found Harrington's crime so egregious that it “ranks up there with the worst [the Board had] seen.”
Next, Harrington asserts that the Parole Board gave undue consideration to the wishes of S.W.’s father. There is no evidence in the record that the Board considered S.W.’s father's statement for an improper purpose. S.W.’s father had a constitutional right to make a statement at the parole hearing, and the Board could consider that statement when making its decision.12
Finally, Harrington argues that the Parole Board overlooked other relevant factors, including his age at the time he committed the offense and his subsequent rehabilitation. But here too, the Board considered these factors and ultimately did not give them much weight. The Board recognized and commended Harrington for his relatively few writeups while in custody and for taking advantage of various rehabilitative programs. During the parole hearing, Harrington pointed out that he was twenty-two years old at the time of his crime and argued that he was no longer the same violent person. He explained that he “was angry at [him]self and at the world,” and that he “blamed others back then.” The Board recognized those facts, but weighed them less heavily than the aggravated circumstances of Harrington's crime.
Accordingly, we reject Harrington's argument on appeal that the Parole Board misinterpreted or misapplied AS 33.16.100(a)(4).
The ten-year restriction on Harrington's ability to reapply for discretionary parole was adequately explained and not an abuse of discretion
Harrington argues that the Parole Board's decision to restrict his ability to reapply for discretionary parole for ten years was arbitrary and an abuse of discretion. The State argues that the restriction was not an abuse of discretion and that the Board correctly considered the appropriate length of additional incarceration required before reapplication.
Alaska Statute 33.16.100(h) provides,
If the board considers an application for discretionary parole and denies parole because the prisoner does not meet the standards in (a) or (g) of this section, the board may make the prisoner ineligible for further consideration of discretionary parole or require that additional time be served before the prisoner is again eligible for consideration for discretionary parole.
*5 The Parole Board has nearly “unbridled discretion when determining that a defendant must serve additional time before they may again apply for discretionary parole.”13
At the beginning of Harrington's parole hearing, a Board member verified with Harrington's parole officer that her recommendation was still “to basically set off” Harrington for ten years with the precondition that he complete sex offender treatment. After confirmation from the officer, the Board member then asked Harrington how he felt about that recommendation. Harrington responded that he understood where the officer was “coming from” with her recommendation, but he did not agree with it. At the end of the hearing, the Parole Board denied Harrington's request for discretionary parole stating, “We feel that, in this case, condemnation is yet to be met.” In the Board's follow-up letter to Harrington, it stated that Harrington would be eligible to reapply for discretionary parole in ten years.
Harrington filed a motion for reconsideration of the Parole Board's denial of discretionary parole. Therein, Harrington did not request reconsideration of the ten-year set-off period, but did request more guidance on corrective measures he could take to “prepare himself as a more suitable candidate for future discretionary parole hearings.”
In response, the Parole Board issued a letter, stating, in relevant part, that the Board utilized the criteria outlined in statute and code, considered Harrington's case carefully, and did not feel that he met the requirements for release on discretionary parole. The Board went on to state,
Due to the unusually cruel and sadistic circumstances of your case, the Board feels strongly that you simply have not served enough time. In providing you corrective action for future appearances, the additional time you will have to serve before appearing before them again is considered the required corrective. At that hearing they will once again weigh your rehabilitative progress in custody, and prospect for continued community rehabilitation, as well as your ability to remain at liberty without violating laws or conditions issued by the Board against the possible threat of harm you may pose to the public if released, and the seriousness of your offense.
Simply put, the Parole Board found that Harrington was taking the appropriate steps towards rehabilitation, but that he needed to serve more time so that his release would not diminish the seriousness of the crime.
Harrington argues that the Parole Board inadequately explained the reason for its imposition of a ten-year set-off, citing this Court's decision in Mikell v. State.14 In Mikell, we remanded the prisoner's case to the Board because it had relied on vague references to the prisoner's “issues in custody” for its denial of parole, without providing meaningful explanation of what those “issues” were or offering guidance on what programs or classes Mikell could pursue to address them in a future application.15 That was not the case here because Harrington received both explanation and guidance from the Board.
*6 While succinct, the Parole Board provided adequate explanation for its ten-year restriction on Harrington's reapplication for discretionary parole. We find no abuse of discretion in its decision.
Harrington was not denied the right to an impartial decisionmaker
Harrington claims he was denied due process because, during his parole hearing, a Board member stated that “paroling [Harrington] this early would certainly diminish the seriousness of the offense,” before the hearing concluded. Because Harrington raises this claim for the first time on appeal, we review for plain error.16
Under plain error analysis, Harrington must establish the following: (1) there was error, and the error was not “the result of an intelligent waiver or a tactical decision not to object”; (2) the error was obvious; (3) the error affected substantial rights, “meaning that it must pertain to the fundamental fairness of the proceeding”; and (4) the error was prejudicial.17
Applicants for discretionary parole are entitled to an impartial Parole Board.18 Board members are presumed to be honest and impartial absent a showing of actual bias or prejudgment.19 To establish bias, a party must show that the Board member had a predisposition to find against an applicant or that the Board member interfered with the orderly presentation of the evidence.20
We do not find that the challenged statement amounts to plain error. The Board member's comment referenced but one of the four factors that the Parole Board must consider. The statement, when taken in context, does not establish that the Board member could not act as an impartial arbiter.
Conclusion
For the reasons explained in this decision, we AFFIRM the superior court's dismissal of Harrington's application for post-conviction relief.