WILLIAM DYKEMAN v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1246-08T11246-08T1

WILLIAM DYKEMAN,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________________________________________

 

Submitted May 19, 2010 - Decided

Before Judges Graves and Sabatino.

On appeal from a final decision of the

Department of Corrections.

William Dykeman, appellant pro se.

Paula T. Dow, Attorney General, attorney

for respondent (Melissa H. Raksa, Assistant

Attorney General, of counsel; Ellen M. Hale,

Deputy Attorney General, on the brief).

PER CURIAM

This is a prison inmate classification appeal. William Dykeman appeals from a final administrative decision of the Department of Corrections (DOC) dated September 29, 2008, denying his request to reduce his custody status from maximum custody to medium custody. Dykeman contends the DOC's decision is unfair and unreasonable, and it violates his due process and equal protection rights. We affirm.

In a seventeen-count indictment, Dykeman was charged with committing various offenses against four separate women. A jury found defendant guilty of committing the following offenses: three counts of second-degree sexual assault by committing an act of sexual penetration using physical force or coercion, in violation of N.J.S.A. 2C:14-2(c)(1); three counts of third-degree criminal restraint, in violation of N.J.S.A. 2C:13-2(a); two counts of third-degree terroristic threats, in violation of N.J.S.A. 2C:12-3(b); and two counts of fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d). Thus, Dykeman was found guilty of committing ten offenses, and he was found not guilty on the remaining counts of the indictment.

On July 15, 2005, the court imposed consecutive nine-year prison terms, which were subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), for each of the three second-degree sexual assaults. The court also imposed a consecutive four-year term for criminal restraint, but concurrent sentences were imposed on the remaining offenses. Accordingly, Dykeman was sentenced to an aggregate prison term of thirty-one years with twenty-seven years of the sentence subject to NERA. Dykeman appealed and we affirmed his convictions, State v. Dykeman, No. A-0445-05 (App. Div. Mar. 4, 2009), but we remanded for resentencing in light of State v. Natale, 184 N.J. 458 (2005). The Supreme Court denied Dykeman's petition for certification. 199 N.J. 542 (2009).

In August 2008, Dykeman filed a request under the DOC's Inmate Remedy System, N.J.A.C. 10A:1-4.1 to -4.9, to change his custody status from maximum custody to medium custody. The correctional facility staff responded by advising Dykeman that his custody status was due to his thirty-one-year sentence and his multiple convictions for sexual offenses. Dykeman's administrative appeal was denied on September 29, 2008.

At the outset, we note "it is perfectly rational to differentiate between prisoners on the basis of the nature of the crime they have committed." Hluchan v. Fauver, 480 F. Supp. 103, 109 (D.N.J. 1979). For example, it is not unreasonable for the Commissioner of Corrections (Commissioner) to conclude "that rapists should never be allowed access to the general public prior to release from prison . . . . It is precisely this sort of decision that New Jersey has placed in the Commissioner's sound discretion." Ibid. Moreover, "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corrs., 324 N.J. Super. 576, 584 (App. Div. 1999). See also George Harms Constr. Co., Inc. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) ("Courts have only a limited role to play in reviewing the actions of other branches of government."). Thus, our role in reviewing the administrative decision denying Dykeman's request to change his custody status is limited. We will not interfere absent a showing that the decision is arbitrary, capricious, or unreasonable or that it violates legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Neither the United States Constitution, nor our Constitution, recognize a right to a less restrictive custody status. Smith v. N.J. Dep't of Corrs., 346 N.J. Super. 24, 29 (App. Div. 2001) (citing Jenkins v. Fauver, 108 N.J. 239, 249 (1987)). In addition, DOC regulations specifically provide that "[a] reduction in custody status is a privilege and not a right." N.J.A.C. 10A:9-4.2. Nevertheless, the DOC does not have "unbridled discretion" in assigning a particular custody status. Smith, supra, 346 N.J. Super. at 33. Rather, the determination must comport with notions of fundamental administrative fairness, and it must take into account the factors found in N.J.A.C. 10A:9-4.5(a), including the inmate's present convictions, N.J.A.C. 10A:9-4.5(a)(1), and "[a]ny reason which . . . relates to the best interests of the inmate or the safe, orderly operation of the correctional facility or the safety of the community or public at large." N.J.A.C. 10A:9-4.5(a)(9).

In the present matter, we find no meritorious basis to conclude that the DOC abused its discretion. On the contrary, it was entirely appropriate for the DOC to consider the nature and the number of offenses that Dykeman committed, and the length of his aggregate sentence. Consequently, the decision to reject Dykeman's request for medium custody status is not arbitrary or capricious, it does not violate his due process or equal protection rights, and it is not fundamentally unfair.

 
Affirmed.

(continued)

(continued)

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A-1246-08T1

May 28, 2010