KENNETH RANSOME 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NOT FOR PUBLICATION WITHOUT THE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-5969-10T3

KENNETH RANSOME,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________________

October 12, 2012

Submitted September 19, 2012 - Decided

Before Judges Espinosa and Guadagno.

On appeal from the New Jersey Department of Corrections.

Kenneth Ransome, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Kenneth Ransome is an inmate at the New Jersey State Prison (NJSP) in Trenton currently serving a life term following a conviction for manslaughter. He appeals from a July 1, 2011 final administrative determination of the New Jersey Department of Corrections (DOC) finding him guilty of three prohibited acts: two counts of *.704, perpetrating a fraud, and one count of *.803/*.215, attempting to commit or aiding another to commit possession with intent to distribute or sell prohibited substances. N.J.A.C. 10A:4-4.1(a). Ransome claims he was denied due process as a result of the lengthy delay in bringing these charges and that there was insufficient evidence to support the determinations.

The charges arose out of an extensive Special Investigation Division (SID) probe into a drug-smuggling operation at NJSP headed by another inmate, Anthony Kidd. The investigation revealed that Kidd used other inmates to solicit persons outside the prison to bring in drugs. The inmates would add the outsiders to their visitor's lists and the drugs were passed when the outsiders came to the prison to "visit" a cooperating inmate. In return, the outside conspirators would receive checks, cash them and give some of the proceeds to others who would deposit the funds back into Kidd's account.

The principal method of contacting the outsiders was through prison telephones. Numerous prison calls made by the inmates were intercepted and recorded.

The recordings revealed that appellant performed "legal" work for Kidd's group and was compensated in drugs. Also, during a period when Kidd was not authorized to use the telephone, Ransome used Kidd's Individual Personal Identification Number (IPIN) to place a three-way call to the Trenton Police Department. During this phone call, Ransome posed as Kidd and attempted to file complaints against members of the police department. On another occasion, Ransome used Kidd's IPIN to again call the Trenton Police Department, posing as Kidd's brother, and attempted to disrupt an administrative disciplinary sanction against Kidd.

On June 17, 2011, Ransome was charged with two counts of *.704 and one count of *.803/*.215. Ransome did not make a statement or identify any witnesses he wanted interviewed. The charges were referred to a hearing officer. Ransome requested and was appointed counsel substitute to assist him.

The hearing was originally scheduled for June 20, 2011, but was postponed to June 23, 2011 at Ransome's request. Two more postponements were needed to permit the hearing officer to meet with SID. The hearing took place on July 1, 2011. Ransome declined to make a statement and the only argument presented by his counsel substitute was a claim that NJSP was aware of the violations in 2008 and waiting until 2011 to bring the charges was a denial of Ransome's right to due process.

The hearing officer relied on the intercepted telephone conversations which confirmed that Ransome used Kidd's IPIN to make calls and found him guilty on the *.704 charges. The hearing officer also concluded that Ransome was guilty of the *.803/*.215 charge as he did "legal work" for Kidd's organization for which he was paid in drugs.

On the *.704 charges, Ransome was sanctioned 15 days detention, 90 days administrative segregation, and 265 days loss of telephone privileges. On the *.803/*.215 charge, Ransome received 15 days detention, 180 days loss of commutation time, 180 days urine monitoring, and permanent loss of contact visits.

On July 7, 2011, Ransome administratively appealed the hearing officer's decision. On July 22, 2011, Assistant Superintendent Anderson upheld the guilty findings and the sanctions.

On appeal, appellant asserts that the hearing officer abused her discretion in relying on evidence that dated back to 2006 in considering charges filed in 2011. He also challenges the sufficiency of the evidence.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Agency decisions carry with them a presumption of reasonableness. City of Newark v. Natural Resource Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

It is clear from the record below that the extensive SID investigation into the drug smuggling ring at NJSP was ongoing for several years. The hearing officer's findings were based on confidential and non-confidential evidence. The non-confidential evidence, exhibits A-1 through A-6, consisted of summaries of SID reports, videos, and phone calls. The confidential evidence that was not disclosed to appellant consisted of three exhibits: (1) C-1, an SID report dated September 6, 2006; (2) C-2, an SID report dated May 15, 2008; and (3) C-3, various video recorded interviews conducted between January 8, 2008 and July 22, 2008. The hearing officer indicated that disclosure of the confidential documents "would release the identity of informants, possibly exposing them to retaliation."

N.J.A.C. 10A:4-9.15(b) permits the use of confidential information of the type considered here. It provides in pertinent part:

1. In any case in which the Disciplinary Hearing Officer or Adjustment Committee's decision of guilt is based on evidence which includes confidential information, adjudication shall contain:

i. A concise summary of the facts

on which the Disciplinary Hearing

Officer or Adjustment Committee

concluded that the informant was

creditable or his or her information

reliable; and

ii. The informant's statement

(either in writing or as reported) in

language that is factual rather than

a conclusion, and based on the

informant's personal knowledge of the

matters contained in such statement.

2. The Disciplinary Hearing Officer or

Adjustment Committee is not permitted to

disclose the identity of the informant.

[N.J.A.C. 10A:4-9.15(b).]

The hearing officer provided summaries of the confidential reports to Ransome in full compliance with this provision. In her findings as to the first *.704 charge, the hearing officer indicated that Ransome made a phone call using inmate Kidd's IPIN. The second *.704 charge was based on a three-way call placed by Ransome to the Trenton Police Department. The summary of recorded institutional phone calls (A-4) indicates that these calls were made between March 8, 2006 and June 11, 2006.

In her conclusions supporting the guilty determination of the *.803/*.215 charge, the hearing officer relied on exhibits A-3 and A-5 in finding that Ransome "was paid drugs to complete legal work." While A-3 does not mention Ransome, A-2, a summary of an SID report dated May 15, 2008, indicates that a confidential informant indicated that Kidd paid inmates including Ransome "to complete legal work for Kidd." Thus, the conduct forming the basis for all three charges occurred prior to May 15, 2008. Ransome was not charged with these violations until June 17, 2011, and claims that this lengthy delay violated his due process rights.

Although prisoners in disciplinary hearings are not entitled to the full spectrum of due process rights accorded to criminal defendants, they are entitled to certain procedural protections. See Avant v. Clifford, 67 N.J. 496, 528-33 (1975). N.J.A.C. 10A:4-9.8(b) requires that a disciplinary hearing be conducted "within seven calendar days of the alleged violation . . . unless such hearing is prevented by exceptional circumstances, unavoidable delays or reasonable postponements." Another provision, N.J.A.C. 10A:4-9.7, governs the postponement of disciplinary hearings and requires review within seven days if the inmate is not in prehearing detention. Additional postponements can be granted only upon a showing of exceptional circumstances.

While neither N.J.A.C. 10:4-9.7 nor N.J.A.C. 10:4-9.8 define "exceptional circumstances," it is clear that this section of the administrative code requires a showing that is more exacting than good cause and will not be satisfied by routine administrative delay or oversight.

We recognize that the investigation into drug smuggling at NJSP was extensive and complex. Appellant concedes in his brief that over fifty inmates were charged in this matter. What is not clear from the record before us is whether "exceptional circumstances" justified the three-year delay in bringing these charges against Ransome. All of the conduct that formed the basis for the three charges here was known to respondent as of May 2008. The hearing officer's notations repeatedly indicate that these charges resulted from an "ongoing investigation into the illegal activities of [inmate] Kidd." However, appellant provides a copy of a criminal complaint indicating Anthony Kidd was arrested on January 16, 2009 and charged with conspiracy to possess a controlled dangerous substance on July 2, 2006.

We find the present record fails to demonstrate the "exceptional circumstances" required by N.J.A.C. 10A:4-9.8(b) to justify the three-year delay in charging Ransome. We vacate the sanctions and remand the matter to the hearing officer for further proceedings to determine whether exceptional circumstances justified the delay in charging appellant. The hearing is to be concluded within thirty days and the findings are to be provided to this panel.

Remanded for further proceedings consistent with this opinion. We retain jurisdiction.