Opinion
DOCKET NO. A-1786-13T4
04-24-2015
ROBERT RELDAN, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Raymond M. Brown argued the cause for appellant (Greenbaum, Rowe, Smith & Davis, LLP, attorneys; Mr. Brown, of counsel and on the briefs; Robert J. Flanagan III, on the briefs). Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the New Jersey State Parole Board. Raymond M. Brown argued the cause for appellant (Greenbaum, Rowe, Smith & Davis, LLP, attorneys; Mr. Brown, of counsel and on the briefs; Robert J. Flanagan III, on the briefs). Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the brief). PER CURIAM
Petitioner Robert Reldan appeals the final administrative agency decision of the New Jersey State Parole Board (Board) establishing a future eligibility term (FET) of 228 months. The Board decision on appeal was made following our reversal and remand of the Board's earlier decision establishing a 240-month FET, which we characterized as "arbitrary and not guided by any particular standards." Reldan v. N.J. State Parole Bd. (Reldan IV), No. A-6039-10 (App. Div. July 9, 2012) (slip op. at 16). We again reverse, but now remand to the Board for a new parole hearing.
I.
We discern the following facts and procedural history from the record on appeal and Reldan IV.
In October 1979, a jury found Reldan guilty of second-degree murder of S.H. and first-degree murder of S.R. In State v. Reldan (Reldan I), 185 N.J. Super. 494 (App. Div.), certif. denied, 91 N.J. 543 (1982), we described the murders as follows:
On October 27, 1975 the body of S.H. was discovered in a wooded area . . . about 15 miles removed from her residence. The body was nude, lying face down and covered with sticks and leaves. It was decomposed, with the skeleton exposed in the head and neck area. The face was mummified. Due to the state of decomposition and the action of animals, the buttocks and sexual organs were missing. A female stocking or pantyhose was wrapped around the neck in the area of the fourth and fifth cervical vertebrae. A stick was entwined in the stocking, apparently to serve as a garrote.
Dr. Frederick Zugibe, [the medical examiner] . . . found "fractures of thyroid cartilage and fracture of cornu of the hyoid bone of the neck." [He] determined the cause of death to be "asphyxiation due to ligature strangulation." At trial he opined that death was produced "by a rather unique technique because in addition to the garrote, which was the piece of wood in between the knot that could be twisted, [a] hand would have to be compressing against the neck at the same time." He explained that a fracture of the hyoid bone was common in manual strangulations and such a fracture indicated use of a hand as well as the garrote. The doctor estimated that death occurred about three weeks before the date the body was found.
. . . .
[S.R.'s] body was found on October 28, 1975 in Tallman State Park, Rockland County, New York, a point 12.9 miles from the place where S.H.'s body was discovered.
S.R. was found lying face up, nude, with a pantyhose ligature about her neck. There was evidence indicating that the body had been moved to this location after death. Dr. Zugibe . . . estimated the time of death as about two weeks prior to discovery of the body [and] . . . determined that the cause of death was asphyxiation due to ligature strangulation. There was, as in the case of S.H., a fracture of the hyoid bone and the doctor concluded that this resulted from the use of manual force to the throat accompanied by use of the stocking ligature. There was evidence of forced sexual penetration.
With respect to both victims Dr. Zugibe was of the opinion that the force used to turn the ligature was applied from the back
of the neck and that the techniques used to fracture the hyoid bone were the same. It was his view that in both cases death was caused by ligature, assisted by the hand of the murderer.
[Id. at 496-98.]
We overturned the convictions on appeal due to errors in the admission of other crimes evidence, id. at 504-05, but, after retrial in March 1986, Reldan was again found guilty of both murders. State v. Reldan (Reldan II), No. A-4588-85 (App. Div. May 15, 1989), certif. denied, 121 N.J. 598 (1990). He was sentenced to thirty years in prison on the first count and to a consecutive life sentence on the second count.
In 1978, Reldan was charged with four counts of advocate homicidal death and one count of conspiracy to commit murder. The offenses were allegedly committed in December 1976, while Reldan was an inmate at Rahway State Prison. Reldan was accused of requesting another inmate and an undercover officer to rob and murder his wealthy aunt and her male companion. He was convicted on all counts in April 1978, and sentenced to concurrent twenty to twenty-five year terms on each count to run consecutive to the term he was serving at the time.
N.J.S.A. 2A:113-8 (repealed by 1978, 95, § 2C:98-2).
In addition, Reldan had escaped during his first murder trial in October 1979. He sprayed a court officer with tear gas, carjacked an automobile, and robbed the driver. In December 1980, he was convicted by a jury of escape, possession of an implement of escape, aggravated assault on a police officer, robbery, and theft. The following month he was sentenced to an aggregate term of twenty-two years to run consecutive to the term he was serving at the time.
On April 19, 1981, while incarcerated at New Jersey State Prison, Reldan complained of a stomach injury and was transported to a hospital in Trenton. Police arrested his girlfriend at the hospital. She had bags containing weapons and disguises that she had obtained at Reldan's direction. In September 1983, Reldan was convicted by a jury of conspiracy to commit escape, criminal attempt to commit escape, possession of a prohibited weapon, possession of a weapon for an unlawful purpose, criminal attempt to procure or possess escape implements, and a convicted person possessing a weapon. In July 1987, following our reversal of the sentence, Reldan was resentenced to a term of fifteen years, with a mandatory parole disqualifier of seven years and six months on the conspiracy to commit escape, and to a concurrent five-year term on the weapons charge, consecutive to the sentence he was then serving. State v. Reldan (Reldan III), 231 N.J. Super. 232 (App. Div. 1989).
Reldan first became eligible for parole on July 8, 2008, after approximately thirty years in prison. On February 6 and 20, 2009, a two-member Board panel met with Reldan and conducted interviews. On April 1, the two-member panel rendered its written decision based on the interviews, documentation in Reldan's case file, confidential material, and professional reports. It denied parole, finding that a substantial likelihood existed that Reldan would commit a new crime if released on parole at that time. It referred Reldan's case to a three-member Board panel for the establishment of an FET greater than the thirty-six month period administrative guidelines. See N.J.A.C. 10A:71-3.21(a)l, -3.21(d)l.
We note that N.J.S.A. 30:4-123.53(a) was amended in 1997 by L. 1997, c. 213, § 1. Based on the dates of Reldan's crimes (committed between 1975 and 1981), the Board applied the 1979 version of the statute, namely, that it 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."
The panel considered the following mitigating factors: participation in programs specific to behavior; participation in institutional programs; average to above average institutional reports; and restoration of commutation time. The panel considered the following aggravating factors: extensive and repetitive prior record; nature of the criminal record being increasingly more serious (double homicide); incarceration for multiple criminal convictions; prior opportunities on parole were revoked for the commission of new offenses; prior opportunities on probation and parole failed to deter criminal behavior; prior opportunities on probation and parole were violated; prior incarcerations did not deter criminal behavior; commission of numerous, persistent, and serious institutional infractions, resulting in loss of commutation time, confinement in detention, and administrative segregation (more than twenty in all, with the most recent infraction having occurred in April 2004); insufficient problem resolution, marked by lack of insight into criminal behavior, denial of crime (advocate homicidal death), and minimization of conduct; and commission of a crime while incarcerated and while on parole.
In support of its reliance on insufficient problem resolution, the panel found: (1) Reldan "made inadequate progress in dealing with issues that underlay a troubling pathology that led to his crimes"; (2) his "expressions of remorse were superficial at best" as he "continues to focus nearly exclusively on his own pain and the pain that he may have caused within his own personal sphere"; (3) his description of his criminal history and current crimes "were at stark variance with the official record and testimony offered in his several trials," demonstrating a "willingness to admit or deny or prevaricate based on whatever benefits him at the moment" and "raises the prospect for further criminal activity if released on parole"; (4) Reldan committed property crimes and attendant extreme violence when he was "quite solvent" so his newly-found wealth would not "serve to insulate the public from his deeply seated pathology"; (5) he "has a history of manipulating people and the system," resulting in approval for parole on two occasions, during which he committed violent offenses, significantly negating Reldan's occasional "mixed psychological evaluations or favorable treatment within the prison setting"; and (6) based on Reldan's history, his "model prisoner" behavior is replete with self-centered manipulation, targeted towards seeking parole. In contrast, the panel regarded Reldan as an "anti-social career criminal."
Reldan and his counsel submitted written statements to the three-member panel, providing information and submitting arguments for reconsideration and mitigation. On October 28, the three-member panel convened and issued its checklist decision denying Reldan parole and imposing a 240-month FET, articulating the identical factors relied upon by the two-member panel. On October 8, 2010, a year later, the three-member panel issued a thirty-two page written opinion. In essence, the panel elaborated on the aggravating factors found by the two-member panel, explaining why substantial weight should be given to many of them. For example, the three-member panel noted that Reldan was incarcerated on at least seven separate occasions, which failed to deter his future criminal behavior, and his institutional disciplinary infractions included eight asterisk offenses and twenty-two non-asterisk offenses. The panel referenced Reldan's explanations of his crimes in his case file and during his two extensive interviews in February 2009, concluding, in part, with examples, that he continued to make "little distinction . . . between things stolen and lives taken"; although he did not deny killing either S.H. or S.R., his "preoccupation with alleged defects in the prosecution's case is alarmingly misplaced when viewed against the horror of [his] admitted crimes . . . [and] the ongoing self-centered nature of [his] current thinking bespeaks a remorseless, selfish, dangerous, criminal mindset"; and "thirty-one years into [his] incarceration [he] attempt[s] to displace a significant portion of the guilt for [his] crimes" by "choos[ing] to take a stance placing [himself] a victim of circumstance . . . in an attempt to place [himself] in a more favorable light and distance [himself] from [his] true violent actions."
The three-member panel found the factors supporting the denial of parole enumerated in N.J.A.C. 10A:71-3.11 "collectively" were of such a serious nature as to make the "presumptive" twenty-seven month FET established by N.J.A.C. 10A:71-3.21(d) "clearly inappropriate." The panel opined that setting any less a term "would be wholly inconsistent with the conclusion that, after thirty (30) years of incarceration, [Reldan has] not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity." In particular, the panel expressed its concern about comments Reldan made during his parole interviews. For example, Reldan's explanation for his past criminal behavior "ranged from purely monetary gain to support [his] upscale lifestyle, to exposing [his] father to mental anguish in acts of revenge because he physically abused [him]" and demonstrated "little to no insight." His matter-of-fact comments about the victims and emphasis that he killed S.H. and S.R. in an "accidental manner" demonstrated lack of remorse and empathy for the victims and "downplayed the brutality and inhuman manner in which [he] acted," and he continued to deny his involvement in his aunt's attempted murder despite the guilty verdict. The panel also noted the twenty-two total institutional infractions, including six asterisk infractions, of which one, occurring in 1981, involved an attempt to escape prison and resulted in new criminal charges. The report additionally noted that "[a] document classified as confidential did play a significant role" in the panel's establishment of the FET.
On March 30, 2011, Reldan administratively appealed to the Board. On June 29, 2011, the Board affirmed the three-member panel's decision to deny parole and establish a 240-month FET.
Reldan appealed to us, and challenged the Board's denial of parole and imposition of the 240-month FET as arbitrary and not supported by the record. We affirmed the denial of parole, because we were "satisfied the Board had [an] ample factual and legal basis to conclude there is a substantial likelihood that [Reldan] will commit another crime if released on parole."
However, we had
a different view regarding the twenty-year FET. We first note the timetable of the various decisions in this case. The three-member panel convened on October 28, 2009 and issued its checklist decision imposing the 240-month FET but did not detail its reasoning until October 8, 2010. In the interim, on January 18, 2010, N.J.S.A. 30:4-123.56(a) and (b) were amended, effective August 1, 2010, precluding the imposition of a FET "more than three years following the date on which an inmate was denied release." L. 2009, c. 330, § 6. The panel's decision, however, makes no mention of the amendment and only references the twenty-seven month presumption of N.J.A.C. 10A:71-3.21(a)1.
We acknowledge that this amendment was not in effect at the time the Board rendered its final agency decision on June 29, 2011, having been repealed by L. 2011, c. 67, § 1, effective May 9, 2011. Nonetheless, the three-member panel's apparent complete disregard of the Legislative determination that a FET exceeding three years was not appropriate at the time it issued its October 8, 2010 written opinion affects our assessment of the propriety of the twenty-year FET that was imposed by the Board in this case.
Moreover, even when viewed against the presumptive twenty-seven months, the FET set by the Board seems arbitrary and not guided by any particular standards other than that the presumptive term was "clearly inappropriate" and the collective factors warranted a significantly greater term, which amounts to almost ten times that amount. We do not disagree with the Board that a FET of longer duration than the guidelines is warranted under the circumstances. However, we are not convinced the record supports the establishment of a twenty-year FET. Appellant is currently seventy-two years old; a FET of such extraordinary length, even with potential commutation credits pursuant to N.J.A.C. 10A:71-3.2(g)(2), is tantamount to having no future eligibility date at all.
We agree with appellant that in assessing his progress while incarcerated, the three-member panel and Board made broad-brush references to his disciplinary infractions. Neither noted, for example, that appellant had no offenses between 1993 and 2000, and the only offenses after an asterisk one of attempting or planning an escape on March 27, 2001, for which he was placed in administrative segregation for 270 days and referred to the institutional
psychological department, were the minor infractions of .652, tattooing or self-mutilation (May 8, 200l), for which he was referred to the psychological department; .210, possession of anything not authorized for retention or not issued to an inmate through regular correctional channels (April 4, 2004), resulting in confiscation of the item and l0 days loss of recreational privileges; and .254, refusing to work or accept a program or housing unit assignment and .652, tattooing or self-mutilation (July 13, 2009), resulting in l5 days detention, 90 days administrative segregation and referral to the psychological department.Consequently, we concluded the Board's decision with respect to the FET was "arbitrary" and "remand[ed] the matter to the Board to establish a FET of shorter duration and to specifically articulate the basis for the term."
Additionally, and perhaps most critically, although the three-member panel states that a confidential report substantially informed its decision as to the FET, neither it nor the Board referenced any clinical assessment or objective psychological tests that supported the lengthy FET. It now appears the confidential document was Dr. Gambone's psychological evaluation, which is in appellant's possession and is a part of the record on appeal.
[Reldan IV, supra, slip op. at 15-17.]
On March 13, 2013, eight months after our remand, the Board Panel released its notice of decision on the establishment of the new "reduced" FET. It set Reldan's new FET as 228 months, resulting in a reduction of only twelve months. Stated differently, the Board reduced a twenty year FET to a nineteen year FET. The Panel stated that it placed "great weight" on Reldan's interviews and considered "who Reldan was on the street, who he was and is while incarcerated, and, looking forward, who he is likely to be if paroled." The Panel suggested, inaccurately, that our determination that the previous FET was too long was based "solely" on Reldan's age.
The Panel observed that the 228-month FET would be reduced by 2,184 days commutation credit, or roughly seven years, and that "Reldan is currently earning six (6) days' work credit per month, and, therefore, were his work assignment to continue, Reldan's FET would be reduced by nearly a week for every month he serves in custody resulting in a projected parole eligibility date of June 9, 2019." Furthermore, it noted that Reldan was entitled to annual parole reviews that "may provide for a reduction of the FET" and that two such reviews conducted had already resulted in a reduction of two months.
The Panel concluded that because of the nature of Reldan's crimes, he "was and is extremely manipulative," and that he was a narcissist. The Panel "place[d] less weight on letters of support sent to the Parole Board," because those individuals did not know Reldan when he was last on parole or when he committed the crimes which was decades ago. "These sincere people only see what Reldan wanted them to see." Moreover, despite the fact that the Panel acknowledged that Reldan's record of infractions were fewer and further between, it reaffirmed the view of the previous findings that his good behavior was "targeting yet another parole."
Following receipt of the Panel's decision, Reldan filed an administrative appeal to the full Board on June 17, 2013. Alan Taplow, an Alternatives to Violence Workshop Facilitator, wrote a second letter to the Board, expressing frustration with the Board discounting his letter. He asserted that his "interpretation of the Board's comments [was] that any positive experience [he] may have delineated in [his] interactions with [] Reldan [was] a result of [manipulation]." Bernard J. Dorrian, who also supported Reldan's request for parole, certified that his support of Reldan was not the result of manipulation.
On October 30, the Parole Board released its notice of final agency decision. The Board stated that the matter had been remanded "merely to allow the Board to reduce the two-hundred and forty (240) month future eligibility term and to specifically articulate the basis for establishing whatever term they determined was appropriate." The Board determined that the Panel "based its decision on the entire record governed by the factors set forth in the statutory requirements and N.J.A.C. 10A:71-3.11." It asserted that "there [was] nothing in the record to support . . . that any one factor was given unreasonable weight over any of the other factors."
With regard to Reldan's institutional infractions, the Board concurred with the Panel's assessment that "any progress [] Reldan demonstrated by remaining infraction-free from 1993 to 1999 is counterbalanced by his commission of six (6) institutional infractions following that time." The Board did not, however, articulate the relative nature of the earlier and subsequent infractions. This appeal followed.
II.
Reldan raises the following issues on this appeal:
POINT I: THE PAROLE BOARD ERRED IN FINDING THAT THE THREE-MEMBER PANEL DID NOT ABUSE ITS DISCRETION IN ONLY NOMINALLY REDUCING [] RELDAN'S ARBITRARY FET
POINT II: THE STATE SHOULD BE REQUIRED TO PROVIDE [] RELDAN WITH INDIVIDUAL PSYCHOTHERAPY
Our standard of review of administrative decisions of the Parole Board is generally limited and is "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd. (Trantino VI), 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Id. at 201 (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)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. Consequently, we may reverse the Board's decision only if it is "arbitrary and capricious." Ibid. We do not disturb the Board's factual findings if they "could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 172 (quoting Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998)) (internal quotation marks omitted).
Nevertheless, as we did in Kosmin v. State Parole Bd., 363 N.J. Super. 28, 40 (App. Div. 2003), we again note
that the Parole Board is a state administrative agency whose actions are reviewable by this court. R. 2:2-3(a)(2). Like the trial courts, state administrative agencies are free to disagree with our decisions. They are not, however, free to disregard them.See Lowenstein v. Newark Bd. of Educ, 35 N.J. 94, 116-17 (1961) (a prior judicial opinion and our mandate on remand becomes the law of the case and an agency is under a peremptory duty not to depart from it).
The Board's schedule of FETs for adult inmates is set forth in N.J.A.C. 10A:71-3.21. An inmate who is "serving a sentence for murder, manslaughter, aggravated sexual assault or kidnapping or serving any minimum-maximum or specific sentence in excess of 14 years for a crime not otherwise assigned pursuant to this section shall serve 27 additional months." N.J.A.C. 10A:71-3.21(a)(1). 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). A twenty-seven month FET increased by nine months would be a thirty-six month, or three year FET.
Although the panel is authorized to impose a lengthier FET, it may do so only if it determines that the FET established in accordance with the schedule is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(d). We note that the focus of the regulation is on the inmate's current status and likelihood of future criminal offenses. While, as set forth below, past conduct is an appropriate fact to consider as part of predicting future conduct, the standard for determining whether Reldan is eligible for parole remains whether "there is a substantial likelihood that [he] will commit another offense if released on parole."
In determining an FET, the panel must consider the factors enumerated in N.J.A.C. 10A:71-3.11 used to determine whether an inmate should be released on parole. N.J.A.C. 10A:71-3.21(d). They include, but are not limited to, the facts and circumstances of the offense, aggravating and mitigating factors concerning the offense, commission of serious disciplinary infractions, any pattern of less serious disciplinary infractions, mental and emotional health, statements of the inmate reflecting on whether there is a likelihood the inmate will commit another crime, participation in institutional programs and statements or evidence presented by a prosecutor or other criminal justice agency. N.J.A.C. 10:71-3.11(b).
Having reviewed the record in light of the applicable law and our opinion in Reldan IV, we can only conclude that the Board has failed to take our remand instructions seriously. The Board's one-year reduction results in an FET that is still more than six times the FET that it can impose without a finding of "clear" inappropriateness. In addition, the single year reduction is justified by reasons that are, at best, only marginally more explicit that those we found inadequate in Reldan IV. Among other problems, the Board placed too much reliance on Reldan's crimes, failed to ground its decision in the psychological reports, and discounted letters in support of Reldan as the result of his "manipulations."
With respect to the Board's assertion concerning manipulation, for example, the Board relies on events that took place in the early 1980s, over thirty years prior to the establishment of the Board's decision to reduce the original FET by one year. The Board further suggests that Reldan's good behavior was intended to enhance his chances of parole, which is apparently another reference to manipulative behavior because it would not appear to be unusual for an inmate to avoid institutional infractions in order to enhance eligibility for parole. The Panel and Board also rejected letters of support on the basis of their own conclusion that the writers were taken in by Reldan's "extreme" manipulative nature. The report prepared by Gambone, which was based on an in-depth psychological examination in 2008, makes no reference to manipulative behavior. Consequently, we see no articulable support in the record for the decision to dismiss items favorable to Reldan as simply manipulative.
Although we held in Reldan IV that an FET longer than three years appeared warranted, the Board has, for the second time, failed to support its significantly longer FET by the heightened standard required to impose an FET longer than three years, which is that to impose a three-year FET is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." It is now more than six years since the Panel first set the twenty- year FET, twice as long as the FET allowable without the enhanced finding.
Although we do so reluctantly, because we would rather the Board made the decisions by applying the applicable law to clearly articulated facts, we are constrained to remand to the Board for a new parole hearing based on current information. The Board shall determine whether Reldan is now eligible for parole or whether another FET date should be established, and it shall do so in accordance with the legal requirements we have outlined in this opinion, including clear and specific articulation of reasons with a factual basis grounded in the record.
We decline to consider the issue of whether we should order that Reldan receive psychotherapy. That issue is within the province of the Department of Corrections, rather than the Board. In addition, the issue was not raised in either forum administratively, and we will not consider it for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
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Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION