HARRY DE LA ROCHE 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NOT FOR PUBLICATION WITHOUT THE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-0746-18T4
HARRY DE LA ROCHE,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
________________________
Submitted November 18, 2019 – Decided December 6, 2019
Before Judges Sumners and Geiger.
On appeal from the New Jersey State Parole Board.
Harry De La Roche, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Christopher Josephson, Deputy
Attorney General, on the brief).
PER CURIAM
Harry De La Roche appeals from the September 26, 2018 final agency
decision of the New Jersey State Parole Board (Board) denying his parole and
establishing a 120-month future eligibility term (FET). We affirm.
In November 1976, De La Roche was eighteen years old and a freshman
at the Citadel Military Academy. While home for the Thanksgiving holiday, he
brutally murdered his mother, father, and two brothers. He gave a statement to
the police in which he confessed to fatally shooting his mother, father, and one
brother, and to shooting and bludgeoning to death his other brother. De La
Roche later recanted, claiming his brother had killed the other three family
members and, in response, he killed that brother. De La Roche was charged
with the murders and proceeded to trial. On January 26, 1978, a jury convicted
De La Roche of four counts of first-degree murder. He was sentenced to four
concurrent life sentences.
De La Roche initially became eligible for parole in 1990.1 He became
eligible for parole for the sixth time on December 21, 2017, after serving
approximately thirty-nine years and nine months of his sentence. On October
1
The Board conducted parole hearings in November 1991, October 2000,
January 2005, February 2008, and January 2013. On each of those occasions,
the Board denied parole and imposed FETs ranging from sixty months to 180
months.
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27, 2017, De La Roche received an initial hearing. The hearing officer referred
the matter to a two-member Board panel.
On November 17, 2017, a two-member panel of the Board denied De La
Roche parole, determining a substantial likelihood existed that he would commit
a new crime if released on parole at that time. The two-member panel based its
decision on the facts and circumstances of the offenses, specifically, first-degree
murder of four victims; that De La Roche was incarcerated for multiple offenses;
numerous institutional infractions, 2 with the last occurring on February 19,
1989; insufficient problem resolution, specifically, lack of insight into criminal
behavior, denial of offenses, minimizing conduct, lack of adequate parole plan
to assist in reintegration into the community; and other reasons. The panel
stated:
[Inmate] currently has great difficulty expressing or
understanding as to his criminal thinking and behavior.
He tends to rationalize the circumstances of his crime
by discussing in terms of the evidence without
accepting his contribution to a heinous crime. Presents
as very matter of fact when dealing [with] highly
emotional issues. Minimizes substance use and how it
may contribute to criminal behavior. Demonstrates
minimal empathy and tends to describe himself as a
victim.
2
In a January 26, 2018 amended notice of decision, the panel removed
"institutional infractions" as a reason for denial.
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The panel also considered the following mitigating factors: no prior offense
record; infraction free since last panel; participation in programs specific to
behavior; participation in institutional programs; minimum custody status
achieved and maintained; and risk assessment evaluation.
Because the panel determined the presumptive FET may be inappropriate,
it referred De La Roche's case to a three-member panel for the establishment of
a FET that may be in excess of administrative guidelines. On February 14, 2018,
the three-member panel established a 120-month FET.
In a comprehensive written decision, the three-member panel described
the underlying facts and circumstances of the murders, De La Roche's
confession to police, his subsequent recantation, and sentence. The panel noted
De La Roche murdered his mother, father, and two brothers and was incarcerated
on four concurrent first-degree counts. The three-member panel found De La
Roche lacked insight into his anti-social conduct, minimized his violent actions,
and denied key aspects of the crimes. The three-member panel then engaged in
a lengthy analysis. It noted De La Roche had no prior criminal record or arrests
and had used marijuana three or four times in prison many years ago.
The three-member panel also noted De La Roche's social history and what
he said in response to the question if he understood why he "snapped." De La
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Roche did not "know whether to call it anger or rage." The three-member panel
observed "the flat emotionless tone in which [he was] able to describe the
murders." When De La Roche was asked by the three-member panel what he
gained from the Focus On The Victim program, he stated, "to some extent I
looked at myself as a victim."
The three-member panel noted that De La Roche's parole plan "is to
placement" and involves going "to a halfway house for six months to a year."
The three-member panel found this to be an inadequate plan to assist him in his
"reintegration into the community" given his need for "a stable and supportive
living arrangement along with a productive and viable employment opportunity
if released on parole."
The three-member panel considered pertinent factors including "the
aggravating factors surrounding the murders, along with an assessment of [his]
mental and emotional health based on the statements [he] provided during Board
panel questioning." The three-member panel expressed concern on how De La
Roche would assimilate into society after forty years of incarceration.
The three-member panel noted De La Roche's continuing denial of
murdering three of the four victims. It also noted De La Roche appeared "unsure
and hesitant in providing a thoughtful answer" as to why he murdered his
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brother. He stated his "behavior was not rational[]." The panel described his
speech affect as "monotone" and he "appeared to lack discernable emotion or
empathy." His answers were deemed "rote."
When speaking about the murders, De La Roche provided a summary of
details that had no bearing on his suitability for parole. The three-member panel
found that by being affected in this matter, forty-two years after the crimes,
demonstrated De La Roche is "a troubled individual who is unable to adequately
delve into his actions and decisions in an honest and forthright manner." As a
result, the three-member panel found De La Roche has yet to "honestly assess"
himself, "the true nature of [his] violent actions and how realistically [he] will
handle/address life experiences of a stressful/confrontational nature if re-
released into society at this time."
The three-member panel also noted his "guarded nature" and posture
during the parole hearings. The three-member panel found De La Roche "over
estimates the control" he has over his "emotional issues," and concluded "[m]ore
work must be done on [his] part to realistically address [his] emotional issues in
an honest and forthright manner." The three-member panel also addressed De
La Roche's Letter of Mitigation and lengthy submissions in detail.
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The three-member panel expressed specific reasons for the imposition of
a 120-month FET. It found "that the factors supporting the denial of parole, are
of such a serious nature as to warrant the setting of a [FET] which differs from
the presumptive term of twenty-seven (27) months (+/- 9 months)." The three-
member panel concluded that a 120-month FET "is necessary in order to address
the issues" it enumerated. The three-member Board panel found that after forty
years of incarceration, De La Roche "continue[s] to present as being unable to
recognize and understand the depth of [his] emotional issues and how those
issues affected [his] behavioral choices. He "admittedly obscure[s] [his]
emotions when speaking of the murders by speaking in legal terms ('legalese')."
His "lack of emotional engagement in daily life demonstrates an avoidance on
[his] part in addressing stressful factors that played a role in . . . committing the
murders."
The three-member panel further found De La Roche did "not recognize
stressors, cues and triggers that would negatively impact upon [him] if [he] were
re-released" and "how [he] will appropriately process negative situations is an
issue in [his] case." De La Roche's "venting" to himself in response to daily
stressors was found "to be an unrealistic approach to address said issues."
Further, the
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emotional issues contributed to [him] committing the
murders and that the prospect of similar stressors in the
future will increase the potential for similar
consequences, namely, the impact of any emotional
distress or disappointment in personal relationships.
More work needs to be done to address these concerns,
but initially you must acknowledge the significance of
this specific issue.
De La Roche filed an appeal with the full Board. After reviewing the
entire record, including the confidential psychological evaluation, the Board
issued a detailed final decision upholding the three-member panel's
recommendations to deny parole and impose a 120-month FET. This appeal
followed.
De La Roche submits the following arguments for our consideration: (1)
the Board has no intention of granting parole no matter what he says or does;
(2) the reasons for denying parole were insufficient; (3) the final agency decision
contains a number of errors; (4) the Board miscalculated credits and the
sentence; (5) the law of the case applies; and (6) the Acoli3 ruling should not
apply. He primarily argues the decision to deny parole and to impose a 120-
month FET is not adequately supported by the record.
3
Acoli v. N.J. State Parole Bd., 224 N.J. 213 (2016).
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We have carefully considered De La Roche's arguments in light of the
record and controlling legal principles. We affirm, substantially for the reasons
expressed in the Board's comprehensive written decision, which is supported by
sufficient credible evidence on the record as a whole. R. 2:11-3(e)(1)(D). We
add only the following comments.
"Drawing on the diverse backgrounds of its members, the Parole Board
makes 'highly predictive and individualized discretionary appraisals.'" Acoli,
224 N.J. at 222 (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359
(1973)). Such "appraisals must realistically be recognized to be inherently
imprecise, as they are based on 'discretionary assessment[s] of a multiplicity of
imponderables, entailing primarily what a man is and what he may become
rather than simply what he has done.'" Ibid. (alteration in original) (quoting
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979)).
Our review of a Parole Board's decision is limited. Hare v. N.J. State
Parole Bd., 368 N.J. Super. 175, 179 (App. Div. 2004). We "must determine
whether the factual finding could reasonably have been reached on sufficient
credible evidence in the whole record." Ibid. (citing Trantino v. N.J. State Parole
Bd., 166 N.J. 113, 172 (2001), modified, 167 N.J. 619 (2001)). The appellant
has "[t]he burden of showing that an action was arbitrary, unreasonable or
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capricious." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App.
Div. 2002).
Applying those well-established principles, we discern no basis to
overturn the Board's final decision. The Board considered the relevant facts and
submissions in denying parole and imposing the FET. The Board's
determination "that a preponderance of evidence indicates that there is a
substantial likelihood that [De La Roche] would commit a crime if released on
parole at this time," as well as the Board's reasons for departing from the
presumptive FET and imposing a 120-month FET, are amply supported by the
record and consistent with controlling law. The Board's decision was not
arbitrary, capricious, or unreasonable. De La Roche's primary argument to the
contrary is without sufficient merit to warrant further discussion; his remaining
arguments are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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