                                NOT FOR PUBLICATION WITHOUT THE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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                                       2
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.
                                                                            A-5142-17T2
                                         3
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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                                        4
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.



                                                                         A-5142-17T2
                                       5
            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.



                                                                           A-5142-17T2
                                        6
      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




                                                                       A-5142-17T2
                                      7
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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