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

• Court: New Jersey Superior Court Appellate Division
• Decided: September 8, 2017
• Docket: A-5196-14T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-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