SEAN RAGSDALE v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3086-05T23086-05T2

SEAN RAGSDALE,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________________________________________

 

Submitted May 15, 2006 - Decided June 15, 2006

Before Judges Lintner and Holston, Jr.

On appeal from a final decision of the Department of Corrections.

Sean Ragsdale, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Sean Ragsdale, appeals the January 3, 2006, final decision of the New Jersey Department of Corrections finding him guilty of committing prohibitive act .754, giving money or anything of value to an inmate or the inmate's family members, and imposing as prison disciplinary sanctions sixty days loss of commutation time and thirty days loss of recreational privileges. We affirm.

Appellant is an inmate currently incarcerated at South Woods State Prison and in December 2005 was incarcerated at Riverfront State Prison (Riverfront), serving a four-year sentence for two counts of resisting arrest. Appellant was one of twenty-one inmates at Riverfront found to be sending money to a fictitious business, Merlin Investigations, via a post office box in Burlington City. The prison's Special Investigations Division (SID) received information that inmate Gary Ivins was selling drugs (Oxyconton) to other inmates and would receive payment by having the inmates send checks to the fictitious business. During the course of the SID's investigation, Ivins admitted that he had the inmates sending checks to the business, he said for the repayment of gambling and other debts. The money was collected from the post office box by Ivins' wife. Ivins was separately charged with other offenses.

On December 23, 2005, appellant was served with a disciplinary report, which set forth that he knowingly sent the fictitious business a check for $200 for repayment to Ivins of debts. This disciplinary report provided appellant with notice that he was being charged with committing a disciplinary infraction. An investigation of the charge immediately ensued, which was conducted by Sergeant T. Ray (Ray). Appellant pled not guilty to the charge and while not offering a statement at the time, reserved the right to make a statement at a courtline adjudication. Appellant identified no possible witnesses. Ray found that the charge had merit and referred it for a courtline adjudication. Appellant requested that at such adjudication, he be provided with assistance from a counsel substitute. Celestmo Gomez was designated as appellant's counsel substitute. Appellant was not placed in prehearing detention.

The courtline adjudication was scheduled to begin on December 27, 2005, before Hearing Officer Norma Morales. However, because appellant was on the department's special needs roster, the matter was postponed to have a mental health evaluation performed to determine whether any mental illness contributed to his committing the alleged infraction, and the extent to which disciplinary sanctions, if he were found to be guilty, such as administrative segregation, might exacerbate his mental health conditions.

A hearing was held on December 28, 2005. The correctional facility staff presented documentation in support of the charge. That documentation included the business remits demonstrating that on two occasions appellant had funds sent from his inmate account to Merlin Investigations (Merlin), claiming it was payment for legal services and the SID investigation report. The hearing officer reviewed the SID file, summarized her findings, and identified the inmates, including appellant, who had sent money to Ivins via Merlin. Appellant's confidential mental health evaluation was also entered into the record as supporting the charge.

Thereafter, appellant and counsel substitute were permitted to rebut the charge. Appellant stated: "All I have [is] 160 days [on my sentence]. [Ivins] claimed that his wife had a good lawyer firm and would get me a drug program in the street." Appellant identified no witnesses and presented no documentary evidence. He was offered, but declined, the opportunity to confront and cross-examine adverse witnesses.

Once all of the evidence and arguments were presented, the hearing officer presented the Adjudication of Disciplinary Charge Report ("Adjudication Report"), the first two pages of which were completed at that time, and all attached exhibits, to counsel substitute and appellant for their review. Counsel substitute confirmed that lines one through fifteen, including the exhibits listed therein, accurately reflected what had occurred at the courtline adjudication.

Hearing Officer Morales reviewed the evidence and arguments and issued her findings of fact in which she found appellant guilty of the charge as follows:

[Appellant] pleads not guilty. [He] maintains that [Ivins] had told him that [Ivins'] wife ran a legal firm and could assist him with [finding a] Drug Program. On 12/14/05, [Senior Investigator] Randall was informed that [Inmate] Gary Ivins was selling [controlled dangerous substances] (Oxycodone) to other [inmates] and that he [was] paid by [the inmates] mailing checks via Business remit to: Merlin Investigations, P.O. Box 666 Burlington NJ 08016. According to Investigation Address is located in U.S. Post Office open[ed] by [inmate] Ivins['] wife - Register[ed] to her father's name. [Fictitious] Business. [Psychiatric evaluation] - [Appellant's] mental illness did not contribute to the/[outward] manifested behavior. [Appellant] was responsible at the time of infraction/competent to defend himself. [Appellant's] mental health problem will significantly reduce [his] ability to to adapt to [administrative segregation or detention] setting. Recommends [loss of commutation time/loss of recreation privileges].

Accordingly, the hearing officer recommended disciplinary sanctions of sixty days loss of commutation time and thirty days loss of recreation privileges.

Appellant did not appeal the guilty finding or the sanctions imposed in his adjudication of the charge. Nevertheless, after the time had expired for appellant to submit an administrative appeal, the prison's associate administrator reviewed the record, upheld the hearing officer's findings and affirmed the sanctions. See N.J.A.C. 10A:4-11.1.

Appellant appeals on the basis that he was denied procedural due process. Appellant claims he was not permitted to present a letter that he had received from the business address, which evidenced his belief that the business would interview him for a drug treatment program once paroled. Appellant insists the ability to produce this evidence was essential because his defense was that he believed that Ivins' wife was a lawyer who would get him admitted to a drug treatment program on the outside. He would have been eligible for parole on May 18, 2006, if his commutation time was not reduced by sixty days and if reduced, he would be eligible for parole on July 18, 2006.

Appellant admits that although he was not charged with an asterisk offense, that because he has been certified as a "special needs" inmate, he was assigned counsel substitute nonetheless. He claims he was told by Gomez that he could not have a confrontation and cross-examination hearing because the SID was involved and because there was no eyewitness to the charge. Appellant also claims that the charge was improper in itself because he was charged with giving money or something of value to a member of another inmate's family, while the reporting employee in the description of the alleged infraction charges that he knowingly sent a check for $200 to inmate Gary Ivins. Appellant also argues that the Statement of Reasons was inadequate.

Appellant, therefore, contends that he was not afforded the due process rights enunciated in Avant v. Clifford, 67 N.J. 496, 522 (1975), because he was not permitted to call witnesses and present documentary evidence in defense of the charge and that the hearing officer's findings were not reached on sufficient credible evidence present in the record.

We are satisfied from our thorough review of the record that appellant's due process arguments are without merit. Counsel substitute confirmed that lines one through fifteen of the Adjudication Report accurately reflect all that had happened at the adjudication. The Adjudication Report memorializes all procedural and evidentiary aspects of the adjudication, yet does not reflect any objections posed by appellant or his counsel substitute with regard to the SID report, the lack of time for preparation of appellant's defense, and that he was denied the right to submit documents into evidence. No administrative appeal was perfected, either by appellant or by counsel substitute on his behalf.

N.J.A.C. 10A:4-9.1 to -9.28 sets forth the procedures by which a hearing officer is to conduct courtline adjudications, including the ability to postpone the hearing and the procedure for the proffering of evidence. Had appellant chosen to raise the issues he raises on this appeal before the hearing officer, the hearing officer would have been able to consider his objections.

It is well-established that questions or issues that should have been but were not properly presented at the hearing or trial level should not be presented for appellate review "'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).

The issues raised do not go to the jurisdiction of the courtline hearing. Further, appellant does not show, or even claim, that his new issues on appeal "concern matters of great public interest" that justify his preempting standard administrative procedure. Ibid. Therefore, appellant has not satisfied either prong of Nieder that would allow him to raise new issues on appeal. We are satisfied, notwithstanding appellant's inability to satisfy the Nieder requirements entitling him to review of the agency decision, that in addressing the merits of appellant's contentions that appellant's disciplinary proceeding comported with the procedural due process requirements enunciated in Avant and that appellant's finding of guilt was supported by substantial credible evidence.

Appellant was provided written notice of the charges at least twenty-four hours prior to the hearing. The charge was served December 23 and the hearing was held on December 27 and 28. Appellant was given a hearing by a Hearing Officer who was from the central office staff. He was permitted to make a statement at the hearing and did make such a statement. Appellant had the opportunity to submit documentary evidence but declined to do so. Although he claims that he was not provided that opportunity, his counsel substitute signed the adjudication of disciplinary charges corroborating that appellant was given that opportunity.

We are additionally satisfied that had the letter appellant references been admitted into evidence, it would not have corroborated appellant's contention that he forwarded the money to Merlin so that Merlin could provide him a drug treatment program upon his parole. The letter dated December 2, 2005, from Peter Hosfield of Merlin to appellant reads:

Dear Mr. Ragsdale:

We are in receipt of your check in the amount of $200.00 dollars, and the outstanding balance of Thirty ($30.00) dollars is due and owing prior to any further action being taken on your case.

The preliminary investigation has been completed and there are no reasons that you should be detained past your maximum release date, as the credits according to your judgment of conviction highlight the jail credits awarded by the Court.

Please remit the balance as soon as possible and the necessary legal documents will be filed with the court.

Thus, the letter, while acknowledging receipt of a check in the amount of $200, simply suggests that Merlin's preliminary investigation indicates that there is no reason why he should be detained past his maximum release date given the jail credits, which he has already received. The letter does not in any way substantiate appellant's contention that he was sending the money for purposes of admission into a drug program upon his release from prison.

Additionally, counsel substitute attested that the statements made, the witnesses requested, and the documents requested to be submitted into evidence were accurately set forth on the Adjudication Report. Appellant's claim, therefore, that he tried to submit one or more documents into evidence is wholly unsubstantiated.

Appellant now claims that he was advised by counsel substitute that he could not confront the SID investigating officer. While it is true that there is no per se prohibition from confronting and cross-examining SID officers contained in the Department of Correction's (DOC) rules concerning adjudications of disciplinary infractions, N.J.A.C. 10A:4-9.14, the record here confirms that appellant never petitioned the hearing officer to permit him to confront the SID investigator. We, therefore, discern no due process violation with respect to this allegation.

Appellant also contends he was denied the right to "a written statement of the evidence relied upon and the reasons for the sanctions imposed." Appellant and counsel substitute were shown the Adjudication Report and all attached documentary evidence submitted at the courtline adjudication. Further, counsel substitute's signature indicates that the information on the adjudication form accurately reflected what took place at the hearing. Additionally, the hearing officer set forth in the Adjudication Report the evidence she relied on and the reasons for the sanctions she imposed.

The Adjudication Report plainly shows that only four documents were proffered during the hearing, and all were presented to support the charge. The hearing officer's written decision references that she relied on the documents submitted. The document titled, "H.O. Morales Report," was written by the hearing officer and summarizes her meeting with the SID investigating officer and her review of the investigation file. This report was provided to appellant. The hearing officer did not rely on confidential informant statements as appellant claims. She relied on an identified SID investigator's findings. Additionally, the Adjudication Report corresponds to the Disciplinary Report, which refers to "various" times that appellant committed the prohibited conduct. The Disciplinary Report reflects that it is covering multiple incidents.

Appellant claims that he was deprived of sufficient opportunity to meet with counsel substitute in order to prepare the presentation of his case. His hearing did not begin until December 27, 2005, and was then postponed until December 28, 2005. We are satisfied that during that interval appellant and counsel substitute should have had ample time to meet, discuss the charge and prepare a defense. We note that neither appellant nor counsel substitute requested a further postponement of the hearing, nor did they raise any objections at the hearing. Additionally, there is no allegation that the DOC interfered with appellant and counsel substitute's preparation of a defense. We are satisfied that appellant's claims that counsel substitute did not adequately assist him are, therefore, unsubstantiated and not credible.

Only where an agency's decision is arbitrary or capricious or unsupported by credible evidence in the record may it be reversed. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An adjudication of guilt of an infraction must be supported by "substantial" evidence. Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995); N.J.A.C. 10A:4-9.15(a). As explained in In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956), substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." See also In re Pub. Serv. Elec. & Gas, 35 N.J. 358, 376 (1961); Mead Johnson & Co. v. S. Plainfield, 95 N.J. Super. 455, 466 (App. Div. 1967).

In the present case, appellant admitted that he sent money to another inmate's wife. The inmate who received the money, Ivins, claimed that he had appellant and other inmates sending money to the fictitious business for repayment of gambling and/or other debts that they owed him. Appellant claimed in business remit forms that the money sent to Merlin was for "legal" work. At the hearing, appellant claimed that the services to be rendered were referral to a drug treatment program, which is neither investigatory nor legal work. Even if appellant had presented the document he now relies on in his administrative hearing, it would not have supported his own version of the reason for his sending money to Merlin.

Hearing Officer Morales reasonably found, and the Associate Administrator affirmed, that the SID investigation uncovered a scheme among Ivins, appellant, and other inmates whereby the inmates would pay Ivins money for drugs, gambling debts, or other debts. The hearing officer's reliance on the SID report was reasonable in light of the business remit forms also presented, showing that appellant was sending money to a fictitious business, claiming that it was for legal services, yet then claiming at the hearing that it was to find a drug treatment program. Appellant called no witnesses to support his version of the incident.

We are convinced that the department's final administrative determination finding appellant guilty of charge .754 and imposing sanctions was supported by substantial evidence in the record and that appellant was provided the due process rights that Avant provides.

Affirmed.

 

Two business remit forms, which are made part of the respondent's appendix show that appellant made one remit in the amount of $200 on November 23, 2005, and on December 9, 2005, another remit of $30, both to Merlin Investigations. Apparently, no matter how many remits any inmate made, only one charge was filed.

Appellant's psychological examination by Dr. Norman D. Schaffer concluded that appellant was not having delusions or hallucinations at the time of the infraction and was, therefore, responsible for his behavior but that given his current mental status and history, detention or administrative segregation should not be imposed.

(continued)

(continued)

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A-3086-05T2

June 15, 2006