WILLIAM COUCH 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NOT FOR PUBLICATION WITHOUT THE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-5834-08T2

WILLIAM COUCH,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________________________

November 12, 2010

Submitted November 3, 2010 - Decided

Before Judges Wefing and Baxter.

On appeal from the New Jersey Department of Corrections.

William Couch, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John P. Cardwell, Deputy Attorney General, on the brief).

PER CURIAM

William Couch appeals from a May 5, 2010 final agency decision of the Department of Corrections (Department) denying Couch's request for "full minimum" custody status. The Department adopted the decision of the Classification Committee (Committee) at South Woods State Prison, which had denied Couch's reduced custody request "based on the circumstances of [the] instant offense [aggravated manslaughter]: the death of [his] baby as the result of [his] negligence." Implicitly conceding that the applicable administrative regulations do not establish a per se ineligibility for full minimum custody status for inmates convicted of aggravated manslaughter, the Department urges us to remand the issue of Couch's custody status to the Department for further consideration. After considering the arguments of both parties, we grant that request.

We also order a remand to the Law Division for correction of the Judgment of Conviction (JOC), which we discuss in greater detail below.

I.

On January 12, 1998, Couch was charged with the murder of his infant son based upon evidence that he deliberately placed his son in a scalding hot bath, ignored the child's cries of pain and deliberately refused to secure medical treatment for the child's burns. On July 20, 1999, he pled guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, for which the judge sentenced him on September 17, 1999 to a seventeen-year term of imprisonment, subject to an eighty-five percent parole ineligibility term. The JOC was amended on March 31, 2004 to add the five-year term of parole supervision required by N.J.S.A. 2C:43-7.2. Both the original JOC and the amendment incorrectly specify that defendant was convicted of first-degree aggravated assault.1

After Couch began serving his sentence at South Woods, he requested full minimum custody status, which the Classification Committee denied on June 29, 2009, thereby maintaining him on gang minimum custody status. The Committee observed that it "has the right to use [its] discretion for full min[imum] status . . . based on the nature of [the] present offense," adding, "you will not be considered for full minimum status." Couch thereafter appealed the Committee's decision to the Department, which, on July 20, 2009, again denied Couch's request for full minimum status by relying on N.J.A.C. 10A:9-4.2 and 9-4.5(a) - (f).

By order of April 1, 2010, we granted the Department's motion for remand to permit the Department "to determine the basis for the [July 20, 2009] decision to deny appellant full minimum status." On remand, the Department issued the May 5, 2010 decision, which merely reiterated the decision made by the Classification Committee at South Woods that Couch's request for full minimum custody status had been denied based on the circumstances of the offense.

On appeal, Couch points to three administrative regulations, none of which entitles the Department to deny a request for full minimum custody status solely because an inmate has been convicted of aggravated manslaughter. First, he addresses N.J.A.C. 10A:9-4.7, which lists approximately twenty offenses and specifies that inmates convicted of those offenses are not eligible for "any type" of reduced custody status. Aggravated manslaughter is not among the convictions listed as disqualifying an inmate from full minimum custody status.

Couch also points to two other regulations that set forth more than thirty factors to be considered by a Classification Committee in deciding whether to reduce an inmate's custody status or permit the inmate to participate in various work, educational, vocational or treatment programs. See N.J.A.C. 10A:9-3.3 and 10A:9-4.5. Neither one contains a prohibition on full minimum custody status for inmates convicted of aggravated manslaughter.

Last, Couch points to a September 6, 2006 memorandum issued by the Department to the Administrator of each of the State prisons "remind[ing]" them that the factors specified in N.J.A.C. 10A:9-3.3 and 4.5 must be considered when determining reduced custody status and observing that "[t]hese factors must also be utilized as the reasons for denying an offender Full Minimum Custody Status." The memorandum emphasizes that the two administrative regulations must be "the only explanation provided to the offender." Significantly, the September 6, 2006 memorandum specifies that "neither a life sentence nor a murder conviction may be used as the sole reason for denial of full minimum."

Couch maintains that the Department's refusal to grant him full minimum custody status, based only on the nature of his conviction, runs afoul of the September 6, 2006 memorandum because if an inmate convicted of murder is eligible for full minimum status, someone convicted of the less serious crime of aggravated manslaughter should likewise not be subjected to a per se ineligibility.

Apparently recognizing that the reasons it had provided on May 5, 2010 after our remand likely do not satisfy either the terms of our remand or the Department's own September 6, 2006 memorandum, the Department asks us to again remand the matter "in order to determine the basis for the decision." Remand to an agency of a pending appeal is appropriate where consideration of an issue by the agency is necessary for us to fully resolve an issue. R. 2:9-1(b). See also King v. New Jersey Racing Comm'n, 103 N.J. 412, 423 (1986).

We therefore remand the matter to the Department to enable it to issue a decision that takes into consideration all of the regulations we have discussed, the September 6, 2006 memorandum and any other appropriate factors. The proceedings on remand should be completed within forty-five days. Jurisdiction is not retained.

We also remand to the Law Division for correction of the JOC to reflect defendant's conviction for aggravated manslaughter.

1 We note there is no first-degree form of aggravated assault. See N.J.S.A. 2C:12-1(b)(1) through (11). Moreover, as evidenced by both the Pre-Sentence Report and statutory citation shown on both versions of the JOC, the crime of which defendant was convicted, and for which he was sentenced, was first-degree aggravated manslaughter, not first-degree aggravated assault.