ROBERT HARMON VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1977-17T3
ROBERT HARMON,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
________________________
Submitted January 9, 2019 – Decided January 28, 2019
Before Judges Nugent and Mawla.
On appeal from the New Jersey State Parole Board.
Robert Harmon, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Christopher C.
Josephson, Deputy Attorney General, on the brief).
PER CURIAM
Appellant Robert Harmon challenges a September 20, 2017 final
administrative decision of respondent, the New Jersey State Parole Board
(Board), denying parole and establishing a 120-month future eligibility term
(FET). We affirm.
Harmon is incarcerated in East Jersey State Prison on an aggregate term
of life imprisonment with a mandatory minimum term of thirty years. He was
tried and convicted by a jury for murder, theft, possession of weapon for an
unlawful purpose, and unlawful possession of a weapon. He had fatally stabbed
a South Amboy Water Works employee on February 25, 1987. Harmon was
seventeen at the time.
Harmon's uncle and brother implicated him in the incident. His brother
recounted that Harmon returned home after the stabbing, entered his brother's
bedroom, and screamed he had just "iced" the victim. Harmon showed his
brother the victim's money and credit cards. These items, and Harmon's hands,
were covered in blood. As Harmon washed himself he kept yelling "[y]ou
should have seen how I iced him." Harmon then placed his clothing and the
victim's credit cards in a bag and stated "I'll be right back. I have to dump [the
items] in the river." Harmon also revealed that he threw the murder weapon ,
and a mop he used in attempt to clean the blood, into the Water Works' pond.
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When Harmon returned, he, his brother, and his brother's girlfriend used the
blood stained money to purchase gas and pizza.
Harmon's uncle informed police the murder had been premeditated. He
reported Harmon had retrieved a knife from the kitchen on the evening of the
murder and announced he was headed to the Water Works to kill the victim.
When Harmon surrendered to police on February 27, 1987, he claimed he
was intoxicated during the incident and had stabbed the victim because he
attempted to touch Harmon in a sexual manner. Harmon was tried as an adult
and his conviction followed.
Prior to this offense, Harmon had an extensive juvenile record. After the
murder, while serving his sentence, Harmon was convicted of another offense
and incurred a litany of serious infractions. In October 2008, he had a physical
altercation with several corrections officers, two of whom were injured and sent
to the hospital. As a result, he was sentenced to a suspended term of eighteen
months incarceration for aggravated assault.
Harmon also committed twenty-nine infractions during his incarceration.
Ten of these offenses were deemed serious infractions. The most recent offense
occurred in March 2013.
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When Harmon became eligible for parole a hearing officer referred his
matter to a two-member Board panel. On December 8, 2016, the two-member
Board panel reasoned there was a likelihood Harmon would commit another
crime if released on parole. The panel noted mitigating factors, including
Harmon's willingness, and actual participation in, several institutional and
behavioral programs, as well as his favorable institutional adjustment and the
restoration of commutation time. Nonetheless, it determined they were
outweighed by several negative factors.
Indeed, the Board panel concluded Harmon's prior juvenile record, the
murder, and the offenses committed during his incarceration, were substantial.
The Board panel found the new offenses Harmon committed while on probation
demonstrated probation had not deterred his conduct. The Board panel noted
his institutional infractions were "numerous[,] persistent[, and] serious [,]" and
had resulted in the loss of commutation time. Referring to the murder and the
infractions committed in prison, the Board panel concluded Harmon had
insufficient problem resolution and specifically stated:
[Harmon] cannot explain why he reacted so violently
when [the] victim attempted to grab him sexually and
his response regarding his multiple assorted infractions
involving assaults was that he wanted to show he was
"not going to be anyone's bitch." He has far to go to
better understand his angry side.
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The Board panel noted it based its decision on its interview of Harmon,
the documentation in his case file, and a risk assessment. These materials,
specifically, a September 2016 psychological evaluation, placed Harmon within
the "medium" category for risk of re-offending and risk of future violence, and
stated the likelihood he would successfully complete parole was "fair to poor."
Recounting the psychological evaluation, the Board panel stated:
[The psychologist] noted that Harmon's test results
were reflective of someone who is defensive; that
though he may make a good first impression, that
friendliness is a veneer that hides a deeper contempt for
conventional morals; that he is restless, prone to
impulsiveness and moody; that he is persistent in
seeking to engage in self-dramatizing behavior; that
[h]is relationships are shallow and fleeting; and that
MCMI-III test results suggest the prognosis for Harmon
to remain out of trouble is [poor].
The two-member Board panel denied parole and referred the matter to the three-
member board for the establishment of a FET.
On March 1, 2017, the three-member panel reached the same conclusions
as the two-member panel, denied parole, and established a 120 month FET.
Harmon appealed to the full Board and raised the following arguments: (1) the
Board panel failed to document the substantial likelihood he would commit a
new offense if paroled; (2) it failed to consider mitigating factors, including his
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participation in rehabilitative programs and counseling, and that his last serious
infraction occurred approximately ten years ago; (3) it failed to consider the
merger of Harmon's theft and weapons offenses with the murder offense; (4) the
Board panel double counted his prior record and his prior offenses; (5) the Board
panel's consideration of the circumstances of the murder amounted to double
jeopardy; and (6) it failed to consider that Harmon had not used drugs or alcohol
for thirty years, had "changed and grown up," and had a residence and
employment awaiting him upon his release.
The Board rejected the aforementioned arguments. It noted the Board
panel had documented the reasons for its decision, which were set forth in a
written decision that had considered Harmon's record, a risk assessment and
psychological evaluation, and Harmon's statements to the Board panel. The
Board noted the mitigating factors were considered and the Board panel "did not
solely base its decision to deny parole on the negative aspects in the record [.]"
The Board agreed with the Board panel's determination that Harmon
"demonstrated a lack of satisfactory progress in reducing future criminal
behavior and that . . . a [FET] within the statutorily provided guidelines is
inappropriate[.]" The Board concluded
after thirty . . . years of incarceration, [Harmon]
present[ed] as not recognizing the seriousness of [his]
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violent actions; as displacing part of the responsibility
for [his] actions on others in [his] background and
personal life; as not taking full responsibility for [his]
institutional disciplinary infractions; and as not
possessing appropriate insight into the stressors that
impel [his] behavioral choices and into the methods and
means of resolving disputes in a manner not involving
confrontation or violence.
The Board rejected as without merit Harmon's assertion it had failed to
consider the alleged merger of his sentences. The Board stated "the record
clearly shows that the offenses on which [Harmon was] sentenced are
represented as multiple counts contained in one indictment." Similarly, the
Board rejected Harmon's claim it had double counted his prior criminal record
and explained "that[] consideration of the quantity and type of prior convictions,
is qualitatively different than consideration of [Harmon's] adjustment to any
prior terms of probation or to any special conditions or terms attached to
previous convictions." Additionally, the Board rejected Harmon's assertion of
a double jeopardy violation noting the parole decision was not a criminal
prosecution, but instead the role of the Board panel, which "is required to make
a determination as to your suitability for parole release."
The Board further found the panel considered, but rejected Harmon's
claims that he had been drug and alcohol free, and had matured. The Board
explained:
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The Board panel determined, based on your interview
and its review of the file, that you do not demonstrate
the insight necessary to be a viable candidate for parole
release at the present time. Although you may believe
that you have made progress enough sufficient to ready
you for parole release, the Board panel found
otherwise. Based on its review of the record, the Board
concurs with the Board panel's determination[.]
Similarly, the Board noted Harmon's residence and employment plans "were
noted on the [c]ase [a]ssessment at the time of [his] [i]nitial [h]earing, were
included in the documentation in [his] case file, and were considered by the
Board panel."
The Board concluded it
concur[red] with the determination of the . . . Board
panel that a preponderance of evidence indicates that
there is a substantial likelihood that [Harmon] would
commit a new crime if [he] were released on parole . . .
that a FET . . . is clearly inappropriate due to
[Harmon's] lack of satisfactory progress in reducing the
likelihood of future criminal behavior, and the
determination . . . to refer [Harmon's] case to . . . three-
member panel . . . [which] establish[ed] a . . . [120]
month FET.
This appeal followed.
I.
"[T]he Parole Board is the 'agency charged with the responsibility of
deciding whether an inmate satisfies the criteria for parole release under the
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Parole Act of 1979.'" Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222 (2016)
(quoting In Re Application of Hawley, 98 N.J. 108 (1984)). The Board's
discretionary powers are broad. Trantino v. N.J. State Parole Bd., 166 N.J. 113,
173 (2001). We will disturb the Board's decisions only if "arbitrary, capricious
or unreasonable, or [if they] are not 'supported by substantial credible evidence
in the record as a whole.'" Id. at 191-92 (emphasis omitted) (quoting Dennery
v. Bd. of Educ., 131 N.J. 626, 641 (1993)); see also Acoli, 224 N.J. at 222-23.
Our "limited scope of review is grounded in strong public policy concerns
and practical realities." Trantino, 166 N.J. at 200. "[T]he Parole Board makes
highly predictive and individualized discretionary appraisals," which "must
realistically be recognized to be inherently imprecise, as they are based on
discretionary assessment[s] of a multiplicity of imponderables[.]" Acoli, 224
N.J. at 222 (alteration in original) (internal citations omitted).
On appeal, Harmon argues the Board did not explain how it arrived at its
decision to impose the FET. He argues the Board considered the infractions he
made during the first half of his incarceration period when he was young and
immature, but did not consider the progress he has made since then. He contends
the imposition of the FET was arbitrary and capricious, outside of the guidelines,
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and unsupported by the evidence he presented. He asserts the Board's decision
does not provide any clarity as to what else he must do to secure his parole.
Harmon's arguments lack merit. The Board, and the Board panel's
detailed findings, amply explained the reasons for imposing the FET. As we
have noted, the decision considered Harmon's prior criminal record, offenses
committed while on probation, disciplinary infractions, insufficient problem
resolution, failure to understand his anger issues, and an objective risk
assessment, which indicated a medium risk of recidivism.
Moreover, Harmon has had numerous serious infractions during
incarceration. His infractions did not only occur as a young man. Rather, the
record demonstrates infractions that occurred in 1991 to 1996, 1999, 2001 to
2002, 2006, 2008, and 2013, during his twenties, thirties, and forties.
Furthermore, Harmon's statements during his hearing did not demonstrate an
improvement. Indeed, as noted by the Board panel, he blamed his behavior on
his youth and his desire to "not be perceived by other inmates as being 'weak.'"
However, this failed to explain why his infractions spanned three decades.
Regarding the murder, according to the Board panel, Harmon "placed a
significant emphasis on . . . claims that the victim's actions . . . impelled [him]
to react in a violent manner." Regarding Harmon's prior criminal record, the
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Board panel found he "placed the sole blame for [his] behavior on [his] uncle[.]"
Thus, the Board panel concluded "the record, including the answers [Harmon]
provided to questioning, bespeak that [he does] not have an adequate
understanding into why [he] resolve[s] conflict[s] with anti-social actions and
behavior." The Board panel concluded "although [Harmon had] participated in
programming, more work needs to be done by [him] with additional
programming to address the issues detailed in this notice." For these reasons,
the decision to deny parole was not arbitrary, capricious, or unreasonable and
was supported by substantial credible evidence in the record.
We likewise are satisfied the 120-month FET imposed by the Board was
neither arbitrary, capricious, nor unreasonable. There is a twenty-seven-month
presumptive FET for murder and other crimes with sentences in excess of
fourteen years. N.J.A.C. 10A:71-3.21(a)(1). However, the three-member Board
panel may set a FET differing from N.J.A.C. 10A:71-3.21(a)-(c) "if the future
parole eligibility date which would be established pursuant to such subsections
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).
The Board must "focus its attention squarely on the likelihood of recidivism"
when reviewing the FET determination. McGowan v. N.J. State Parole Bd., 347
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N.J. Super. 544, 565 (App. Div. 2002) (finding the imposition of a thirty-year
FET within the Board's discretion).
Here, there was ample evidence to support the Board's conclusion Harmon
had a likelihood of recidivism and lack of insight into his crime and behavior
during incarceration. Harmon's inability to take responsibility for his deadly
actions, and his numerous institutional infractions, were considered by the
Board. Thus, the Board's decision to uphold the 120-month FET was not
arbitrary, capricious, or unreasonable.
Affirmed.
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