CALVIN BASS 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NOT FOR PUBLICATION WITHOUT THE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-3639-18T1
CALVIN BASS,
Appellant,
v.
NEW JERSEY STATE PAROLE
BOARD,
Respondent.
_____________________________
Submitted November 4, 2020 – Decided November 19, 2020
Before Judges Yannotti, Mawla, and Natali.
On appeal from the New Jersey State Parole Board.
John Vincent Saykanic, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raska, Assistant Attorney
General, of counsel; Suzanne Davies, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant Calvin Bass appeals from a March 27, 2019 final agency
decision by the New Jersey State Parole Board (Board), denying parole and
establishing a future eligibility term (FET) of sixty months. We affirm.
We previously summarized the facts leading to Bass' incarceration when
we denied his fourth petition for post-conviction relief challenging his sentence
on novel statutory and other grounds. We stated:
In March 1983, [Bass] and two other minors were
arrested for entering the home of an elderly man and
fatally beating him with a wooden nail-studded board
to near decapitation, while he lay in bed. [Bass] was
fourteen years and one month old at the time of the
arrest. He was found in possession of the wooden
board, as well as two color televisions and an eight-
track player belonging to the victim.
Following a competency hearing, the Family Part
judge granted the State's motion to waive jurisdiction
pursuant to N.J.S.A. 2A:4A-26. Subsequently, a jury
convicted [Bass] of first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3); second-degree burglary,
N.J.S.A. 2C:18-2(b)(2); first-degree robbery, N.J.S.A.
2C:15-1(b); second-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1); fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d); and third-degree
possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d).
. . . [Bass'] aggregate sentence was life imprisonment
with thirty-five years of parole ineligibility.
[State v. Bass, 457 N.J. Super. 1, 4 (App. Div. 2018).]
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In part, Bass claimed his sentence was illegal because he was rehabilitated
and the trial court's finding he could not be rehabilitated was erroneous. Id. at
7. We rejected the argument, concluding
[Bass'] sentence is not illegal because he now claims to
be rehabilitated as a result of his incarceration. We do
not minimize [his] efforts to rehabilitate himself, which
include: [his] role as president of the Lifers Group
Juvenile Awareness Program, earning a GED high
school equivalency diploma, and success in various
institutional programs. However, consideration of
these accomplishments is exclusively the province of
the parole board and not a means of collateral attack on
[Bass'] sentence—which has been affirmed on direct
appeal.
[Id. at 14.]
Bass became parole eligible in July 2018. In May 2018, a two-member
panel issued a decision denying parole. The panel noted the following
mitigating factors: Bass completed opportunities on community supervision
without violation; he participated in programs specific to his behavior and
institutional programs; institutional reports reflect institutional adjustment; he
had attempted to enroll in certain programs but was not admitted; and he had
achieved and maintained minimum custody status.
However, the panel found there was a substantial likelihood Bass would
commit another crime if released on parole. It cited the following reasons for
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denying parole: the facts and circumstances of Bass' murder offense; his prior
offense record, which was extensive and repetitive; the increasingly serious
nature of his criminal record; his present incarceration for multiple offenses; his
commission of numerous serious infractions in prison; and his insufficient
problem resolution.
An in-depth psychological evaluation of Bass was conducted three months
before the hearing. The evaluation noted, in discussing the murder, "Bass does
offer a sense of regret for his actions in participating in the crime but again
strongly denied that he struck this man as noted in the record, indicating this
came from his co-defendant in return for a lighter sentence." The evaluation
also noted Bass' "performance while on probation, community supervision as a
juvenile was described as poor and he has a prior escape charge."
In assessing his risk of re-offense, the evaluation considered Bass'
strengths and resources against his risks and weaknesses. It noted he earned his
GED and worked responsibly during his incarceration, had family support,
showed increased support, despite denying "aspects of violent behaviors of the
[murder]" and denying a 2016 infraction, and was generally stable, productive,
and had no acute psychiatric concerns. However, the evaluation concluded Bass'
prognosis for re-offending was "medium" because of the
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significant history of juvenile criminal behavior
including violent acts culminating in a horrific,
sadistically violent crime . . . . He has not worked or
supported himself as an adult, having spent his entire
adult life incarcerated. He did poorly when under
community supervision and has a prior juvenile escape.
He proved easily pliant to negative peer group exposure
and comes from a high risk environment. He has
significant substance abuse issues. He has a recent
2016 infraction. Evidence of arrogant defiant and
antisocial attitudes is noted beginning as a pre-
adolescent although these appear somewhat
behaviorally muted in recent years.
The psychological testing conducted as part of the evaluation supported
these conclusions. The evaluation described Bass' personality profile as
follows:
When their lives are under control persons with this
profile may be skillful in exploiting the goodwill of
others. More characteristically, . . . [t]hey may feel
unfairly treated and easily provoked to anger. Their
façade of control and sociability may quickly give way
to antagonistic and caustic comments, and they may
obtain gratification by humiliating and dominating
others. . . . Socially repugnant impulses . . . are likely
to be discharged directly in precipitous ways, often
without guilt.
Deficient in deep feelings of loyalty and displaying an
occasional indifference to truth, persons with this
profile may successfully scheme beneath their veneer
of civility. A guiding principle for these people is that
of outwitting others, controlling and exploiting them
before they control and exploit them. Carrying a chip-
on-the-shoulder attitude, they may exhibit a readiness
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to attack those they distrust. If they are unsuccessful in
channeling these omnipresent aggressive impulses,
their resentment may mount to period of manic
excitement or into acts of brutal hostility.
The evaluator concluded Bass was at "moderate risk for future violence if
released." The evaluator also found "[t]he likelihood of this inmate successfu lly
completing a projected term of parole is generally fair at best due to
constellations of risks and strengths previously identified."
Based on the totality of the record, the panel concluded:
[Bass] has progressed and his infractions have subsided
to a great extent. But his understanding of criminal
thinking remains limited. [Bass stated,] "I mean what's
done is done. You know? A man was murdered. . . . I
don't take pride in that, know what I mean." In speaking
about programs, palliative care unfortunately has not
appeared to have any impact on his ability to feel the
pain of others.
The matter was referred to a three-member panel to establish an FET
outside the regulatory guidelines. The panel established a sixty-month FET
based on Bass' lack of satisfactory progress in reducing the likelihood of future
criminal behavior. The panel determined the reasons for an FET outside the
presumptive guidelines included
the facts and circumstances of the offenses. Namely
that [Bass] and [his] accomplices participated in the
beating death of an elderly victim during the course of
burglarizing his residence . . . . [Bass'] prior offense
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record is both extensive and repetitive . . . . [Bass was
sentenced] for four offenses . . . . [Bass was] previously
afforded community supervision as an alternative to
incarceration . . . . [D]uring [Bass'] incarceration [he
has] committed [twenty-two] infractions, four of which
were asterisk (serious) infractions[1].
The panel also based its decision on Bass' "lack [of] insight into [his]
criminal thinking and decision-making" and stated he minimized his conduct
and has "not sufficiently addressed [his] substance abuse problem." The panel
concluded Bass "overly emphasized that [his] accomplice initiated the offense
. . . [and o]nly when pressed on the issue, did [he] speak in a conciliatory
manner, noting that [he] did nothing to stop [his] co-defendant as he beat the
elderly victim causing his death." It further noted Bass "must gain a better
understanding as to why . . . [he] chose to willingly participate in the murder of
the victim. By focusing on specifics to [Bass'] own decision-making, the . . .
panel finds [Bass] will gain a better understanding why [he] behaved in the
manner that [he] did."
Bass appealed to the full Board. He challenged the panel's findings that:
he failed to cooperate in his own rehabilitation; he would violate the conditions
of parole if release; and there was a substantial likelihood he would commit a
1
Pursuant to N.J.A.C. 10A:4-4.1, asterisk infractions are "the most serious and
result in the most severe sanctions."
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crime if paroled. He argued the Board failed to provide him with a Board
representative to aid him in the hearing pursuant to N.J.A.C. 10A:71 -2.11, and
violated due process as a result; and a panel member violated the Board's code
of conduct by questioning Bass in an aggressive manner and preventing him
from answering a question.
The Board affirmed. It addressed and rejected each of the arguments Bass'
counsel raised on his behalf. Regarding the claim the three-member panel failed
to consider mitigating factors favoring parole, the Board found "the . . . panel
did not make a determination that . . . Bass failed to cooperate in his own
rehabilitation or cite his failure to cooperate in his rehabilitation as a reason for
denial." The Board rejected Bass' argument that the record lacked evidence to
support the panel's finding there was a substantial likelihood Bass would commit
a crime if released on parole. The Board stated:
Pursuant to N.J.A.C. 10A:71-3.11(b)(17), during the
time of the hearing, the . . . panel may consider
statements given by an inmate reflecting on the
substantial likelihood that he will commit another
crime. Based on . . . Bass' responses to questions posed
by the . . . panel at the time of the hearing, the . . . panel
appropriately determined that he exhibits insufficient
problem resolution, specifically, that he lacks insight
into his criminal behavior, minimizes his conduct and
that his substance abuse problem has not been
sufficiently addressed. The Board finds that . . . Bass
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has been involved in treatment, but has gained little
insight from these programs.
The Board recited all of Bass' mitigating efforts, but concluded
program participation is one factor of many considered
by the . . . panel and is not the only indicator of
rehabilitation. Further, . . . Bass' program participation
does not negate the fact that he still lacks insight into
his criminal behavior and minimizes his conduct. The
Board further notes that while acknowledging the
serious consequences of his criminal activity is a step
towards rehabilitation, it represents only an initial
effort at rehabilitation. . . . Bass' admission of guilt may
help him to develop insight into the causes of his
criminal behavior, but does not equate to a change in
his behavior. Therefore, in assessing . . . Bass' case, the
Board concurs with the determination of the . . . panel
that, based on the aggregate of all relevant factors, there
is substantial likelihood that he will commit another
crime if released on parole at this time.
The Board also rejected Bass' argument that the panel failed to "establish
a nexus between the reasons for denial" and its finding there was a substantial
likelihood he will commit a crime if paroled. It concluded
the . . . panel appropriately considered . . . Bass' entire
record, including his prior criminal history, in making
its determination on his suitability for parole. Of
concern to the . . . panel was his three . . . prior
adjudications including two . . . for [s]imple [a]ssault
and that he was arrested and convicted of a new offense
while on probation. . . . Bass has no employment
history and a substance abuse history starting at age
thirteen . . . . He committed twenty-two . . . infractions
including four . . . asterisk infractions, the most recent
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committed on August 29, 2016. The Board also finds
that the . . . panel appropriately considered the facts and
circumstances of his case, specifically that . . . Bass and
his co-defendant bludgeoned to death an [eighty-three]-
year-old handicapped man and burglarized his home.
The Board rejected Bass' argument that he was denied a Board
representative to aid him during the hearing or that he was deprived of due
process. It found a parole counselor was present at the hearing to assist him and
he was afforded due process by virtue of the hearing and because
[t]he . . . panel carefully and thoroughly reviewed all
the reports contained in the file and based its decision
on the totality of the information in the administrative
record. . . . Bass was given the opportunity to meet with
the . . . panel and to provide information during his
hearing. The . . . panel based its decision to deny parole
on the factors set forth in the statutory requirements and
N.J.A.C. 10A:71-3.11.
The Board rejected Bass' final argument the panel hearing became
contentious and he was not permitted to answer questions. It concluded
[p]ursuant to N.J.A.C. 10A:71-3.11(b), . . . Bass was
asked appropriate questions about his offenses in a
professional manner and the . . . panel afforded him a
significant opportunity to speak on several points. The
Board further finds that the . . . panel listened to his
answers as evidenced by the follow-up questions posed
by the . . . panel.
Bass raises the following arguments on appeal:
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POINT I:
MR. BASS SHOULD BE IMMEDIATELY PAROLED
AS THE DECISION OF THE FULL BOARD IS
ARBITRARY AND CAPRICIOUS, FAILED TO
CONSIDER MATERIAL FACTS, AND FAILED TO
DOCUMENT THAT A PREPONDERANCE OF THE
EVIDENCE INDICATES A SUBSTANTIAL
LIKELIHOOD EXISTS THAT HE WILL COMMIT A
NEW CRIME IF RELEASED ON PAROLE.
POINT II:
THE BOARD'S DECISION IS ARBITRARY AND
CAPRICIOUS AS THE HEARING OFFICER/
BOARD PANEL VIOLATED WRITTEN BOARD
POLICY BY FAILING TO ESTABLISH A NEXUS
BETWEEN THE REASONS FOR DENIAL AND THE
CONCLUSION THAT THERE IS A SUBSTANTIAL
LIKELIHOOD THAT MR. BASS WILL COMMIT A
CRIME UNDER THE LAW OF THIS STATE IF
RELEASED ON PAROLE AT THIS TIME.
POINT III:
MR. BASS WAS DEPRIVED OF HIS RIGHT TO
PROCEDURAL DUE PROCESS DUE TO THE
BOARD'S VIOLATION OF WRITTEN BOARD
POLICY.
POINT IV:
AT LEAST ONE BOARD MEMBER
PARTICIPATING IN THE DELIBERATIONS OR
DISPOSITION OF THE CASE HAS FAILED TO
COMPLY WITH THE BOARD'S PROFESSIONAL
CODE OF CONDUCT.
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POINT V:
THE PAROLE BOARD UTILIZED SUBJECTIVE
PSYCHOLOGICAL TERMS SUCH AS "LACK OF
INSIGHT," "REMORSE," AND "MINIMIZES
CONDUCT" AS THE BASIS TO DENY PAROLE
RENDERING THE DECISION
UNCONSTITUTIONAL ON VAGUENESS
GROUNDS.
Where an appellant challenges the Board's findings, our review "focuses
upon whether the factual findings made by the Parole Board could reasonably
have been reached on sufficient credible evidence in the record." Trantino v.
N.J. State Parole Bd., 166 N.J. 113, 199 (2001) (citing Trantino v. N.J. State
Parole Bd., 154 N.J. 19, 24 (1998)). "To a greater degree than is the case with
other administrative agencies, the Parole Board's decision-making function
involves individualized discretionary appraisals." Id. at 201 (citing Beckworth
v. N.J. State Parole Bd., 62 N.J. 348, 358-59 (1973)). We "may overturn the
Parole Board's decisions only if they are arbitrary and capricious." Ibid.
"Arbitrary and capricious action of administrative bodies means willful and
unreasoning action, without consideration and in disregard of circumstances."
Ibid. (quoting Worthington v. Fauver, 88 N.J. 183, 204-05 (1982)). Specifically,
we must decide:
(1) whether the agency's action violates express or
implied legislative policies, i.e., did the agency follow
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the law; (2) whether the record contains substantial
evidence to support the findings on which the agency
based its action; and (3) whether in applying the
legislative policies to the facts, the agency clearly erred
in reaching a conclusion that could not reasonably have
been made on a showing of the relevant factors.
[Trantino, 154 N.J. at 24.]
Bass' arguments under points three and four lacks sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add
the following comments. Having reviewed the transcript of the hearing, which
lasted nearly an hour and twenty minutes, it is clear to us, as it was to the Board,
that Bass was afforded due process. The lengthy hearing involved detailed
questioning by the panel and ample opportunity for Bass to answer questions.
Moreover, the panel members did not engage in unprofessional conduct. Rather,
the transcript reveals Bass had difficulty answering basic questions in a
forthright manner regarding his criminal and substance abuse history, the
murder, and infractions that occurred in prison, including one as recently as
2016. His conduct during the hearing mirrored the behavior observed during
the psychological evaluation.
Regarding points one, two, and five, we reject Bass' arguments the Board
failed to make appropriate findings of fact and that its conclusion there was a
substantial likelihood Bass would commit a crime if paroled was arbitrary and
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capricious. The Board's decision is supported by sufficient credible evidence in
the record. R. 2:11-3(e)(1)(D).
N.J.A.C. 10A:71-3.11(b) sets forth twenty three factors the Board may
consider in determining parole eligibility. "There is no requirement for the
Board to consider each and every factor enumerated . . . . Rather, the Board
must consider the factors applicable in each case." McGowan v. N.J. State
Parole Bd., 347 N.J. Super. 544, 561 (App. Div. 2002). The standard to be
applied is whether the preponderance of evidence indicates a substantial
likelihood the inmate will commit a crime if released on parole. Ibid. (citing
Trantino, 154 N.J. at 27); N.J.S.A. 30:4-123.53(a).
The Board followed N.J.A.C. 10A:71-3.11(b) and considered: the facts
and circumstances of the murder; Bass' prior offense and criminal record; the
offenses he committed while incarcerated and on probation; and Bass'
insufficient problem resolution, specifically lack of insight into criminal
behavior, the minimization of his conduct, and failure to adequately address his
substance abuse problem. The Board reached this conclusion not only by relying
on Bass' institutionalization records, but also the psychological evaluation and
the record of the panel hearing. The evidence preponderated in favor of denying
parole and supported the sixty-month FET. The Board's reasoning was
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supported by the credible evidence in the record and was not arbitrary or
capricious.
Affirmed.
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