SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2766- 22 WILLIAM COBURN, Appellant,

v. NEW JERSEY STATE PAROLE BOARD, Respondent.

___________________

Submitted April 30, 2024

– Decided May 14, 202 4 Before Judges Paganelli and Augostini.
On appeal from the New Jersey State Parole Board. William Coburn, appellant pro se. Matthew J. Platkin, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorn ey General, of counsel; Christopher C. Josephson, Depu ty Attorney General, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2766

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William Coburn, currently an inmate Northern State Prison, challenges a n April 26, 2023 final agency decision by the New Jer sey State Parole Board (Board) denying him parole and imposing an eighteen -month future eligibility term (FET). We affirm. In March 1985, Coburn was convicted by a jury of th e following: firstdegree murder, N.J.S.A. 2C:11-3; second-degree poss ession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) ; possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 24:21

- 19 (a)(1) (repealed by L. 1987, c. 106, § 25); and possession of marijuana, N.J.S.A. 24:21

- 20 (a)(4) (repealed by
L. 1987, c. 106, § 25). In July 1985, Coburn was sentenced to an aggregate term of life imprisonment with a mandatory minimum of th irty years for the murder conviction, nine months for the unlawful possession of a weapon charge, and six years for the possession of CDS with intent to distribute to run concurrently with the life sentence. 1 Coburn became eligible for parole on the first-degree murder offense in November 2014. Defendant received an initial parol e hearing i n December

1 The judge merged the second-degree possession of a weapon for unlawful purpose conviction into the murder conviction and t he possession of marijuana conviction into the possession of CDS with intent t o distribute conviction.3 A- 2766

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2022, after becoming parole eligible for the fifth time

. After a hearing in January 2023, a two-member Board panel denied parol e and established an eighteen-month FET. In finding there was a su bstantial likelihood Coburn would violate conditions of his parole if released, the panel cited: the facts and circumstances of the offense; prior opportunity on probation failed to deter criminal behavior ; commission of institutional disciplinary infraction s which were serious in nature and which resulted in loss o f commutation time, with the most recent infraction occurring in December 2015; insufficient problem resolution, specifically, lack of insight into crim inal behavior and minimization of conduct, as demonstrated by panel interview and documentation in the case file; and the results of an objective risk assessme nt indicating a "moderate" risk of recidivism. The panel also acknowledged the following mitigatin g factors: minimal prior record; all opportunities on community superv ision committed without violation; infraction free since last panel hearing ; participation in institutional programs; participation in program(s) specific to b ehavior; institutional reports reflect favorable institutional adjustment; minimum custody status achieved/ maintained; and correspondence in support of parole

.4 A- 2766

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Coburn appealed to the full Board from the two-memb er Board panel's decision. On April 26, 2022, the full Board affirm ed the two-member panel's decision to deny parole and impose an eighteen-mont h FET. In its comprehensive written opinion, the Board addressed each of Coburn's contentions and concluded it "concur[red] with the determination of the Board panel that a preponderance of the evidence indicate [d] that there is substantial likelihood that [Coburn] would commit a crime if re leased on parole at thi s time." On appeal, Coburn argues "three essential points" t o support his assertion the Board erred in denying parole: first, the Board "incorrectly equate[d] a 'status offense' . . . with criminality"; second, the Board failed in not relying on "new information"; and third, the Board utilized an inco rrect standard to deny him parole. Our review of final decisions of the Board is limi ted. Malacow v. N.J. Dep't of Corr. , 457 N.J. Super. 87, 93 (App. Div. 2018) (citing Cir cus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009)). The Board's parole determinations are entitled to deferential r eview given its expertise in rendering "' highly individualized ' appraisal[s]" of an inmate's future behavior. Acoli v. N.J. State Parole Bd. , 250 N.J. 431, 454 (2022) (quoting Trantino v.5 A- 2766

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N.J. State Parole Bd . (Trantino VI), 166 N.J. 113, 173 (2001)) (interna l quotation marks omitted). The Board's decision, as with other final agency decisions, will not be overturned unless it is "arb itrary, capricious or unreasonable or it is not supported by substantial credible evidence i n the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562 ( 1963 )) . The Board's decision is entitled to a presumption of validity and reason ableness. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993). The burden of ov ercoming this presumption falls on the inmate to demonstrate the Board's acti ons were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304-05 (App. Div. 1993). At the time of Coburn's offenses, N.J.S.A. 30:4-12 3.53(a) provided the Board should generally grant parole to an inmate on their parole date unless it can be shown by "a preponderance of the evidence . . . there is a substantial likelihood that the inmate will commit a crime unde r the laws of this State if released on parole at such time." Perry v. N.J. State Parole Bd., 459 N.J. Super. 186, 194 (App. Div. 2019) (internal quotation marks omitted) (quoting Willia ms

v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div. 2000)). 2 In making its

2 The 1997 amendment to N.J.S.A. 30:4-123.53(a) regarding paro le eligibility states that an inmate shall be released on parole " unless information supplied in6 A- 2766

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parole decision, the Board must consider the factor s set forth in N.J.A.C.
10A:71 -3.11(b)(1) to (24). In considering this non-exhaustive list of f actors, the Board's "prediction as to future conduct and its op inion as to compatibility with the public welfare [must] be grounded on due consid eration of the aggregate of all of the factors which may have any pertinence." Beckworth v. N.J. State Parole Bd. , 62 N.J. 348, 360 (1973). In evaluating whether Coburn should be released on parole, the Board considered several aggravating and mitigating facto rs. The Board reviewed Coburn's entire record in rendering its decision, w hich contained a juvenile truancy adjudication for which he received probatio n. The Board rejected Coburn's contention that it was not permitted to co nsider this adjudication given the passage of time. However, there is no evidence that the Board gave undue weight to this prior adjudication or that it was a significant factor in the Board's decision to deny parole.

the report filed . . . or developed or produced at a hearing . . . indicates by a preponderance of the evidence that the inmate has f ailed to cooperate in his or her own rehabilitation or that there is a reasonabl e expectation that the inmate will violate conditions of parole imposed . . . if released on parole at the time. " However, because Coburn committed his crimes prior to the amendment, the pre-1997 version of N.J.S.A. 30:4-123.53(a) applies to his case.7 A- 2766

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The Board properly rejected Coburn's contention th at it was limited to considering only "new information" since the last p arole determination. Trantino v. N.J. State Parole Bd. (Trantino V), 331 N.J. Super. 577, 610

- 11 (App. Div. 2000) (Board's consideration of all rele vant information does not violate ex post facto clause). Coburn argues that the Third Circuit Court of Appeals in Holmes v. Christie, 14 F.4 th 250, 255 (3d Cir. 2021) overturned the holding in Trantino V, which provided "that application of the 199 7 amendments to N.J.S.A. 30:4-123.56c . . . [does] not violate t he ex post facto clause since this change in the law is a procedural modification that does not constitute a substantive change in the parole release criteria." Trantino V, 331 N.J. Super. at 610 (citing State v. Muhammad, 145 N.J. 23, 56-5 7 (1996)) ; Cal. Dep't of Corr. v. Morales, 514 U.S. 499, (1995). However, H olmes did not overrule Trantino V. Rather, the Third Circu it reinstated Holmes' ex post facto claim, permitting his claim to proceed and "remand[ ing ] for discovery to determine whether the retroactive application of the 1997 [a] mendments [specific] to Holmes 'create[d] a significant risk of prolonging [ his ] incarceration.'" Holmes , 14 F.4 th at 268 (fourth and fifth alterations in original) (quoting Garner v. Jones , 529 N.J. 244, 251 (2000)).8 A- 2766

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Based upon Coburn's responses to questions posed by the Board at the hearing and the documentation in the file, the Boar d determined Coburn exhibited insufficient problem resolution, specific ally, that he "lack[ ed ] insight into [his] criminal behavior, and that [he] minimiz e[d] [his] conduct." The Board further noted that "while [Coburn ] acknowledge[d] the serious consequences of [his] criminal activity . . . it re present[ed] only an initial effort at rehabilitation." In response to his failure to comply with the prior Board panel's suggestion that Coburn participate in "Focus on the Victim" and "Thinking for a Change" programs, Coburn advised the Board that t he Focus on the Victim program was unavailable at the prison. Contrary to Coburn's assertion, the Board confirmed during the parole hearing that this program was in fact available to inmates at Northern State Prison

. Thus, the Board considered the appropriate factors in rendering its parole decision and applied the correct legal standards. Moreover, there is sufficient evidence in the record supporting the Board's denia l of parole. We are persuaded that the Board's decision was not arbitrary or capr icious and we affirm substantially for reasons given by the Board in its thorough written decision.9 A- 2766

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Any remaining arguments advanced by Coburn lack su fficient merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.