WAYNE BUSBY VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD)

NOT FOR PUBLICATION WITHOUT THE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-5142-17T2
WAYNE BUSBY,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
____________________________
Submitted May 6, 2019 – Decided July 15, 2019
Before Judges Sabatino and Sumners.
On appeal from the New Jersey State Parole Board.
Wayne Busby, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Erica R. Heyer, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant Wayne Busby, who is currently incarcerated in South Woods
State Prison, appeals the New Jersey State Parole Board's (Board) June 20, 2018
final agency decision denying him parole and imposing a 120-month Future
Eligibility Term (FET). We affirm.
In March 1989, Busby was convicted for the April 1985 murder by
strangulation of a seventy-four-year-old woman in the course of burglarizing her
home and robbing her, and two counts of felony murder. He was sentenced to
three concurrent prison terms of life with a mandatory-minimum prison term of
thirty years. On appeal, we remanded for resentencing. After remand, he
received the same life sentence with a mandatory-minimum term of thirty years
for murder, but the two felony murder convictions were merged, resulting in a
concurrent sentence of the same length and parole ineligibility period.
In October 2017, Busby became eligible for parole for the first time. A
parole hearing officer referred the matter to a two-member Board panel, which
denied parole. In explaining its decision, the panel cited numerous reasons,
including but not limited to: the nature and circumstances of the offense ; an
increasingly more serious criminal record and history of incarceration for
multiple offenses; an extensive criminal record for fraud as a result of illegal
use of credit cards on two occasions and possession of a controlled dangerous
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substance; revocation of parole for violation and resentencing to county jail;
commission of prison disciplinary infractions for one asterisk charge and seven
non-asterisk charges; 1 lack of insight into criminal behavior; insufficient address
of a substance abuse problem; and the results of a confidential objective risk
mental health assessment evaluation. The panel acknowledged several
mitigating factors: favorable institutional adjustment based upon participation
in institutional programs; achievement and maintenance of minimal custody
status; and restoration of lost commutation time. In addition, the panel requested
that a three-member Board panel establish an FET outside the twenty-seven
months administrative guidelines under N.J.A.C. 10A:71-3.21(a)(1).
A few weeks later, the two-member panel administratively reviewed
Busby's case in anticipation of the three-member panel review and amended its
prior decision. The panel removed references to an extensive prior criminal
record and added additional factors of "nature of criminal record increasingly
1
Although it does not affect the decision in this matter, effective January 3,
2017, the Department of Corrections reclassified its disciplinary sanctions of
asterisk offense (most serious) and non-asterisk offense (less serious) for
sanctions, to the use of a five-level scheme and rebalancing of the schedule of
sanctions and the severity of offense scale. N.J.A.C. 10A:4-4.1(a); N.J.A.C.
10A:4-5.1; N.J.A.C. 10A:9-2.13.
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more serious" and "committed to incarceration for multiple offenses." It also
added the mitigating factor of "minimal offense record."
In December 2017, the three-member panel confirmed the denial of parole
and established a 120-month FET. The panel's reasoning was set forth in a nine-
page narrative decision that rejected all of Busby's arguments challenging the
two-member panel's decision and essentially relied upon the same reasons for
denial and recognized the same mitigating factors as the two-member panel. In
short, the panel remarked that Busby is unable to identify the causes of his
violent behavior, failed to address his drug abuse problems and has not
developed an adequate insight into recognizing the issues that could cause him
to recidivate. It further noted Busby's misconceived emphasis that his killing of
the elderly victim by strangulation was unintentional, his lack of understanding
of the role narcotics abuse played in his behavior, and his belief that the crimes
were perpetrated solely for monetary gain.
Busby appealed to the full Board. However, before the Board considered
his appeal, the two-member panel and the three-member panel both reviewed
their initial decisions. The two member panel did so to "clarify the factors that
were in the record at the time [Busby's] case was assessed and that were relied
upon by the Board members in rendering the decision to deny . . . parole." The
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three-member panel corrected a typographical error regarding the length of the
FET, and removed "prior incarceration did not deter criminal behavior" as a
factor in establishing the120-month FET.
In a five-page narrative decision, the Board affirmed the panels' decisions
for essentially the same reasons.
Before us, Busby argues the following points:
POINT I
THE BOARD PANEL DENIED WAYNE BUSBY HIS
RIGHT TO PROCEDURAL DUE PROCESS DUE TO
THE BOARD PANEL'S VIOLATION OF WRITTEN
BOARD POLICY BY FAILING TO PROVIDE A
BOARD REPRESENTATIVE TO AID HIM
THROUGHOUT HIS HEARINGS.
POINT II
THE BOARD PANEL VIOLATED WRITTEN
BOARD POLICY BY FAILING TO ESTABLISH A
NEXUS BETWEEN THE REASONS FOR DENIAL
AND THE CONCLUSION THAT THERE EXISTED
A SUBSTANTIAL LIKELIHOOD THAT
APPELLANT WOULD COMMIT A NEW CRIME IF
RELEASED ON PAROLE AT THIS TIME.
POINT III
THE BOARD PANEL UTILIZED INCORRECT
STANDARDS IN RENDERING ITS DECISION TO
DENY PAROLE TO WAYNE BUSBY.
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POINT IV
THE BOARD PANEL UTILIZED ERRONEOUS
MATERIAL FACTS, SPECIFICALLY ALLEGING
WAYNE BUSBY IS COMMITTED TO
INCARCERATION FOR MULTIPLE OFFENSES AS
GROUNDS TO DENY HIM PAROLE.
POINT V
THE BOARD PANEL UTILIZED ERRONEOUS
MATERIAL FACTS, SPECIFICALLY ALLEGING
PRIOR INCARCERATION FAILED TO DETER
CRIMINAL BEHAVIOR AS GROUNDS TO DENY
WAYNE BUSBY PAROLE.
POINT VI
THE BOARD PANEL MADE AN ERRONEOUS
FACTUAL DETERMINATION WHICH IS
CONTRADICTED BY THE RECORD.
POINT VII
THE NATURE OF THE BOARD PANEL HEARING
PRECLUDE A HEARING CONDUCTED WITH
FUNDAMENTAL FAIRNESS THUS DEPRIVING
WAYNE BUSBY DUE PROCESS OF LAW.
We have considered the contentions raised by Busby and conclude that
they are without sufficient merit to warrant discussion in this opinion, Rule 2:11-
3(e)(1)(D) and (E), and we affirm substantially for the reasons expressed by the
Board in its thorough decision. We add the following remarks.
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In reviewing a final decision of the Board, we consider: (1) whether the
Board's action is consistent with the applicable law; (2) whether there is
substantial credible evidence in the record as a whole to support its findings;
and (3) whether in applying the law to the facts, the Board erroneously reached
a conclusion that could not have been reasonably made based on the relevant
facts. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998). The Board's
decision to grant or deny parole turns on whether "there is a substantial
likelihood the inmate will commit" another crime if released. Williams v. N.J.
State Parole Bd., 336 N.J. Super. 1, 7-8 (App. Div. 2000). The Board must
consider the enumerated factors in N.J.A.C. 10A:71-3.11(b)(1)-(23) in making
its decision. The Board, however, is not required to consider each and every
factor; rather, it should consider those applicable to each case. McGowan v.
N.J. State Parole Bd., 347 N.J. Super. 544, 561 (App. Div. 2002).
An inmate serving a minimum term in excess of fourteen years is
ordinarily assigned a twenty-seven month FET after a denial of parole. See
N.J.A.C. 10A:71-3.21(a)(1). However, N.J.A.C. 10:71-3.21(d) allows a three-
member panel to establish a FET outside of the administrative guidelines if the
presumptive twenty-seven-month FET is "clearly inappropriate due to the
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inmate's lack of satisfactory progress in reducing the likelihood of future
criminal behavior."
Here, the Board's action is consistent with the applicable law, there is
substantial credible evidence in the record as a whole to support its findings, and
the Board reached conclusions that were based on the relevant facts. The Board
made extensive findings, which we need not repeat here, demonstrating the basis
for its decision to deny Busby's parole. Hence, on this record, we have no reason
to second-guess those findings or conclusions and defer to the Board's expertise
in these matters.
Furthermore, we reject Busby's procedural argument that he was entitled
to a legal representative at the hearings because there is no right to counsel under
the case law at such hearings and the regulation for assistance from a Board
representative, N.J.S.A. 10A:71-3.13(g), does not specify that assistance be
provided at the hearing. It is only required that general assistance and advice be
provided during the course of the parole process, which apparently occurred
here.
Affirmed.
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