Berta v. New Jersey State Parole Board
| Citation | 473 N.J.Super. 284,280 A.3d 797 |
| Decision Date | 02 August 2022 |
| Docket Number | DOCKET NO. A-1889-20 |
| Parties | Eugene BERTA, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent. |
| Court | New Jersey Superior Court – Appellate Division |
473 N.J.Super. 284
280 A.3d 797
Eugene BERTA, Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent.
DOCKET NO. A-1889-20
Superior Court of New Jersey, Appellate Division.
Argued June 2, 2022
Decided August 2, 2022
Kevin S. Finckenauer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Kevin S. Finckenauer, of counsel and on the briefs).
Susanne Davies, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Acting Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Suzanne Davies, on the brief).
Before Judges Hoffman, Geiger, and Susswein.
The opinion of the court was delivered by
SUSSWEIN, J.A.D.
State prison inmate Eugene Berta appeals the January 27, 2021 final decision of the New Jersey State Parole Board denying parole and imposing a seventy-two-month future eligibility term (FET). Berta, who was seventy-one years old when the final agency decision before us was rendered, is serving a life term for the murder of his girlfriend. The crime was committed during the summer of 1983. He was tried, convicted, and sentenced in 1984, and completed the court-imposed thirty-year period of parole ineligibility in September 2014. Berta's initial application for parole was denied in 2015 and the Board imposed a 120-month FET. He once again became eligible for parole in March 2020.
The Board's decision to deny parole a second time relies principally on three supposedly
negative circumstances: (1) Berta was "committed to incarceration for multiple offenses"; (2) he has a "serious" and "persistent" history of institutional disciplinary infractions; and (3) his continued denial of guilt constitutes "insufficient problem resolution." After carefully reviewing the record in light of the governing legal principles, we reverse and remand for the Parole Board to reconsider its decision. If the Parole Board on remand determines that Berta should not be released, it must thoroughly explain the reasons for overcoming the presumption of parole and for imposing an FET beyond the twenty-seven-month presumptive FET.
We conclude that the Board improperly relied on the first purportedly negative circumstance. Berta's jury trial convictions for murder and possession of a firearm for an unlawful purpose were merged at the sentencing hearing and thus he was not committed to state prison based on multiple offenses. As to
Berta's record of institutional infractions, we believe the Board was unreasonable in characterizing Berta's infraction history as persistent given that he has been infraction-free for nearly twenty years. Even affording due deference to the Board's expertise, we do not believe Berta's overall infraction history can reasonably be interpreted to suggest a likelihood of reoffending.
As to Berta's denial of guilt, the Board has yet to satisfactorily explain why that circumstance, viewed in context with his overall rehabilitative efforts, establishes by a preponderance of the evidence that he is substantially likely to re-offend. While Berta's ongoing refusal to accept responsibility for the murder he committed is a relevant circumstance, we hold that admitting guilt is not a categorical prerequisite to parole. Accordingly, the Board shoulders the burden to explain why Berta's refusal to acknowledge his guilt foreshadows that he will commit a future crime. It is not enough for the Board to state a conclusion. Rather, the Board must explain how it reached its conclusion that Berta is substantially likely to reoffend. This explanation is especially necessary in light of the two in-depth psychological evaluations that suggest, to the contrary, that Berta presents only a low risk of re-offense.
I.
We discern the following pertinent facts from the record. We first summarize the circumstances of the crime, Berta's institutional record during his lengthy incarceration, and the psychological evaluations conducted in anticipation of his eligibility for parole.
A.
At the time of the murder, Berta was a thirty-five-year-old married father of five who earned his living as a self-employed electrician. He and his second wife had a "semi-open" marriage, in that each was free to pursue extramarital affairs.
The victim, C.W.,1 was a registered nurse. She and Berta had an on-and-off affair over the course of ten years. Their relationship was described as "tumultuous[,] ... characterized by long-standing emotional abuse[ ] and financial exploitation."
Witnesses testified at trial that the victim expected Berta to divorce his wife and marry her. She was upset by the fact that Berta was not keeping his promise to do
so, and told several friends that she and Berta were "going away together so that they could talk out their problems."
Although Berta and the victim had planned to go on a week-long vacation, he instead went on the vacation with another affair partner, P.B. P.B. testified that on the night of July 9, 1983, while the two were vacationing in Minnesota, Berta "produced a handgun[,]" which he told her "he always carried ... with him." She testified that, after asking her to confirm that she loved him, Berta told her "I just killed [three]2 people, I'll blow your God damn brains out." P.B. also testified that Berta told her she "did not have to worry about [C.W.] as she was completely out of the picture."
On July 16, 1983, the victim's nude body was found in the bathtub of her home, partially immersed in water. The official cause of her death was cerebral laceration and hemorrhage due to fractured skull, which was, in turn, the result of a single gunshot to the back of the head. The investigation revealed that the murder occurred on July 8, 1983, in the basement of the home.
Berta was arrested and charged with knowing/purposeful murder, N.J.S.A. 2C:11-3, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). He was released on bail and remained free during the thirteen-month period between
his arrest and trial. So far as the record shows, he was not charged with committing an offense while on bail awaiting trial.
On October 2, 1984, the jury found Berta guilty of both offenses. The trial judge merged the two crimes for purposes of sentencing. Berta had no prior adult convictions or juvenile adjudications of delinquency.3 The trial court sentenced him to life imprisonment subject to a mandatory minimum period of parole ineligibility fixed at thirty years.
Berta first became eligible for parole on September 24, 2014. The Board denied his initial parole application and imposed a 120-month FET. We affirmed the final decision of the Board in an unpublished decision. Berta v. N.J. State Parole Bd., No. A-2306-15, 2017 WL 4818714 (App. Div. Oct. 26, 2017).
The FET expired and Berta became eligible for parole on January 31, 2020. Hearing Officer Theodore Sadiwnyk compiled Berta's pre-parole case assessment. That report documented the following factors: "[n]o prior offense record"; "[i]nfraction free since last panel"; "[p]articipation in program(s) specific to behavior"; "participation in institutional program(s)"; "[i]nstitutional reports reflect favorable institutional adjustment"; "[a]ttempt made to enroll and participate in program(s) but was not admitted"; "[m]inimum custody status achieved and maintained"; and "[r]isk assessment evaluation"; as well as the "[f]acts and [c]ircumstances of the offense(s)[, s]pecifically: MURDER" and Berta's "[i]nsufficient problem(s) resolution[, s]pecifically: denial of [the] offense[,]" as demonstrated by "interview" and "confidential material/professional report[.]"
During the course of thirty-six years of imprisonment, Berta accumulated seven
disciplinary infractions.4 Six of those occurred
within the first five years of his incarceration, including one asterisk offense,5 *.205, Misuse of Authorized Medication, committed in July 1987. The most recent infraction, dated October 30, 2002, was a non-asterisk offense for .210—"anything not authorized for inmate possession." That latest infraction "was reheard and LOCT6 was removed."
Berta was not charged with an infraction between April 1988 and the October 2002 infraction. Nor was Berta disciplined during the period between his first and second parole hearings.
The pre-parole case assessment shows that while in prison, Berta worked as "a master electrician and essential member of the maintenance team ...." He also engages in counseling with the prison chaplain, Reverend Dr. Lawrence Akins. Reverend Akins wrote a letter in support of Berta's application for parole. The letter praised Berta's active participation in re-entry programs, group counseling, and the Catholic worship community, calling his institutional life "exemplary[.]" Of particular note, Reverend Akins observed that, "[b]ecause of his inclination to openly reflect upon
his past behavior and negative choices, [Berta] became a conversational catalyst for the rest of the ... group." Reverend Akins explained that Berta had
come to understand the critical nature of accepting personal responsibility for one's choices as a vital step for those striving to progress beyond criminal behavior to engage in productive and fulfilling lives. I believe Mr. Berta has worked diligently towards genuine, holistic rehabilitation, and will ultimately resume a positive role as a returning citizen if afforded the opportunity.
The pre-parole case assessment shows that Berta actively pursued educational opportunities during his incarceration. He stayed abreast of changes to the electrical codes in anticipation that he would continue his work as an electrician while on parole. In 2019, he earned an Associate's
degree in Liberal Arts from Raritan Valley Community College. He also began working towards a Bachelor's degree in Social Justice from...
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