Opinion
DOCKET NO. A-1833-13T2
03-18-2015
HARRY DE LA ROCHE, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Harry De La Roche, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Guadagno, and Leone. On appeal from the New Jersey State Parole Board. Harry De La Roche, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief). PER CURIAM
Appellant Harry De La Roche was sentenced in 1978 to four concurrent life terms after a jury found him guilty of murdering his parents and two brothers. He appeals the Parole Board's October 10, 2013 decision, which rejected him for parole for a fourth time and imposed a 120-month Future Eligibility Term ("FET") before his next parole review.
We need not reiterate the factual background, which has already been described in several prior opinions of this court. Suffice it to say that appellant, then eighteen years old, returned home from his freshman studies at The Citadel during Thanksgiving recess in November 1976. While in the family residence, appellant shot and killed his mother, his father, and his two younger brothers, Eric and Ronald. Appellant continues to deny shooting his parents and Eric. Instead, he steadfastly maintains that Ronald shot the three of them, and that he killed Ronald in response.
De La Roche v. N.J. State Parole Bd., No. A-2138-01 (App. Div. Mar. 19, 2003) ("De La Roche I"): De La Roche v. N.J. State Parole Bd., No. A-6652-03 (App. Div. Sept. 28, 2005) ("De La Roche II"): De La Roche v. N.J. State Parole Bd., No. A-6024-04 (App. Div. May 12, 2006) ("De La Roche III"); De La Roche v. N.J. State Parole Bd., No. A-3456-07 (App. Div. Nov. 19, 2009) ("De La Roche IV").
Appellant first became eligible for parole in 2002. That Board denied that initial application, mainly because appellant had failed to show remorse and accept responsibility for his homicidal behavior. De La Roche I, supra, slip op. at 4. The Board imposed a 120-month FET. On appeal, a panel of this court remanded the matter to the Board to obtain an evaluation from a mental health expert assessing whether appellant's failure to admit his wrongdoing increases his risk of committing other criminal acts if he were released. Id. at 7-8. After such an evaluation was conducted, confirming appellant's risk of re-offense, the Board continued the initial 120-month FET. On appeal, we affirmed that decision. De La Roche II, supra, slip op. at 4.
Subsequent parole hearings have resulted in continued denials. The Board imposed a 60-month FET extension in 2005, which this court upheld in 2006. De La Roche III, supra, slip op. at 5-6. The Board imposed another 120-month FET in 2007, which we likewise upheld. De La Roche IV, supra, slip op. at 10.
The present appeal concerns another 120-month FET that the Board imposed after appellant became eligible for parole again in 2012. Appellant still has not admitted killing his parents and Eric. He was evaluated again by a mental health expert, whose assessment was in accord with the Board panel's recommendation to deny parole. The Board also considered appellant's responses and demeanor when he appeared before the hearing panel. The Board noted appellant's failure to exhibit sufficient problem resolution and the "emotionless and detached manner in which [he] describe[d] [his] crimes," which indicated to the Board that "if placed in a stressful or confrontational situation, [he] would not be able to react in an appropriate manner[.]" The Board also considered a three-page letter from the Bergen County Prosecutor's Office urging denial of parole.
We do not set forth here the details of the evaluation, which are contained in a confidential sealed appendix.
The Board duly took into account the fact that appellant has not had any institutional infractions for over a decade, that he has successfully completed many prison programs, and that he is now experiencing health problems. Even taking all that into account, the Board nevertheless concluded that "there is a substantial likelihood that [appellant] will commit another crime if released."
Applying our limited scope of review of parole decisions, see, e.g.. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994), we affirm the Board's denial of parole and its imposition of the 120-month FET. We add only a few comments concerning the length of the FET.
The record provides ample grounds for the board to have departed from the presumptive twenty-seven-month FET for murder in this quadruple homicide case. N.J.A.C. 10A:71-3.21(a)(1).
Appellant contends that because he has already served over thirty-eight years in incarceration, any further commutation credits that he will earn for good behavior will be useless and will not shorten his next date for parole ineligibility. The Board rejects that assumption, acknowledging in its brief that commutation credits earned by appellant in the current cycle will continue to be counted against his present 120-month FET and thus reduce the time before his next parole eligibility date. This is illustrated by the fact that appellant, as the result of commutation credits, received his most recent parole hearing in 2012, only five years after he was given a 120-month (ten-year) FET in 2007.
This is consistent with the Board's stated procedures, made available on its website. See N.J. State Parole Bd., The Parole Book: A Handbook on Parole Procedures for Adult and Young Adult Inmates at 8, available at http://www.state.nj.us/parole/docs/AdultParoleHandbook.pdf ("If you are an adult inmate serving a sentence for an offense committed before August 19, 1997, then the new eligibility term can be reduced by good time, work and minimum custody credits.").
We also reject appellant's claim that he had already served the punitive aspects of his four concurrent life sentences. Our prior opinion from 2003 should not be misread to signify that.
In addition, we reject appellant's premise in his brief that, with respect to his sentence and all parole considerations, a term of life "equals 75 years." As a point of comparison, the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2(a), treats a life sentence as seventy-five years "[s]olely for the purposes of calculating the minimum term of parole ineligibility," which is used for fixing eighty-five percent of a term of life imprisonment. The Legislature so provided in order to make NERA applicable to life sentences for murder. See State v. Andino, 345 N.J. Super. 35, 38-40 (App. Div. 2001); State v. Allen, 337 N.J. Super. 259, 271-74 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002). Therefore, appellant's life sentence is not seventy-five years, it is instead as long as he lives, and as the State acknowledges, he thus cannot "max-out" his commutation credits.
In any event, NERA has no relevance to appellant's sentence because he was sentenced under Title 2A, long before NERA was enacted in 1997, and the Supreme Court has refused to apply retroactively the 2001 amendment clarifying NERA's application to murder and treating a life sentence as seventy-five years. State v. Parolin, 171 N.J. 223, 233 (2002).
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Appellant's remaining arguments are clearly without merit and do not require discussion. R. 2:11-3(e)(1)(D) and (E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION