WILLIAM B. SHEPHERD 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NOT FOR PUBLICATION WITHOUT THE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-0

WILLIAM B. SHEPHERD,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_________________________________________

June 5, 2014

Submitted April 29, 2014 Decided

Before Judges Sabatino and Sumners.

On appeal from the New Jersey Department of Corrections.

William B. Shepherd, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lucy E. Fritz, Deputy Attorney General, on the brief).

PER CURIAM

William Shepherd, an inmate currently incarcerated at Northern State Prison, appeals from a final disciplinary decision of the New Jersey Department of Corrections ("DOC"). He raises the following points on appeal:

POINT I:

APPELLANT CONTENDS THAT THE FORFEITED FUNDS SHOULD BE RETURNED AND PLACED IN HIS INMATE TRUST ACCOUNT BECAUSE THE DISCIPLINARY HEARING OFFICER DID NOT MAKE A DETERMINATION OF THE MANNER IN WHICH THE FUNDS WERE ACQUIRED, THUS VOIDING THE FORFEITURE.

POINT II:

APPELLANT CLAIMS THE MONEY SEIZED AND FORFEITED SHOULD'VE BEEN TREATED AS "CONTRABAND" AND AT THE CONCLUSION OF THE DISCIPLINARY HEARING, THE MONEY SHOULD'VE BEEN SENT HOME AT HIS EXPENSE.

POINT III:

APPELLANT'S SANCTIONS WHICH AMOUNTED TO LOSS OF PHONE PRIVILEGES AND LOSS OF VISITS 90 DAYS, SHOULD HAVE BEEN DISMISSED AS EXCESSIVE.

POINT IV:

THE INMATE ['s] SUBSTITUTE COUNSEL WAS INEFFECTIVE AND DID NOT PROPERLY PREPARE APPELLANT'S DEFENSE OR DISCIPLINARY HEARING APPEAL.

We have considered these arguments and affirm, with a slight modification of the disciplinary sanctions imposed.

I.

On July 20, 2012, Shepherd and another inmate escaped while in the custody of the DOC at the Tully House Correctional Facility. Shepherd was serving a nineteen-year sentence for armed burglary, conspiracy, obstruction, possession and manufacture of controlled dangerous substances. Three days later, the DOC Commissioner issued an order for Shepherd's arrest to all law enforcement agencies/officers of the State of New Jersey.

Almost seven months later, on February 5, 2013, Shepherd was arrested by the North Brunswick Police after attempting to elude police during a routine motor vehicle stop. When Shepherd was returned to DOC custody he was found in possession of $968.24. He also tested positive for narcotics. He was issued disciplinary charges pursuant to N.J.A.C. 10A:4-4.1 for prohibited acts *.101 (escape), *.204 (use of narcotics)1, and *.207 (possession of money or currency in excess of $50 unless specifically authorized). On February 6, 2013, the DOC served the disciplinary charges upon Shepherd and conducted an investigation.

A disciplinary hearing was held on February 8, 2013.
Shepherd pled guilty to all charges. His request for the assistance of counsel substitute was granted. Shepherd declined the opportunity to have witnesses testify on his behalf and confront DOC witnesses through cross-examination during the hearing. In response to the sanction for the possession-of-money charge, Shepherd contended after he escaped he obtained money from a lawful job and from family members. As a result, he argued that all of the money confiscated by the police should be sent to his family.

The hearing officer found Shepherd guilty of all charges and imposed a disciplinary sanction of 10 days detention, 364 days administrative segregation, 365 days loss of commutation time, 90 days loss of visitation privileges, 90 days loss of telephone privileges, and forfeiture of all the money except $50. The partial forfeiture was based upon the hearing officer's reasoning that, despite his escape, Shepherd was still a DOC inmate and therefore subject to the rule which requires any inmate must first obtain permission to possess more than $50.

Shepherd thereafter filed an administrative appeal. He admitted his guilt but requested leniency for the 365 days administrative segregation because it would be difficult on his family. He also renewed his request to have the forfeited money sent to his family.

After reviewing the disciplinary hearing record, the DOC Assistant Superintendent upheld the hearing officer's decision finding that the appeal "failed to note any violation of standard or misinterpretation of fact" and "that leniency was not warranted and will not be extended."

This appeal followed.

II.

Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. N.J. Dep't of Corr.,382 N.J. Super.18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison,81 N.J. 571, 579-80 (1980)). Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles,337 N.J. Super.52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co.,307 N.J. Super.93, 102 (App. Div. 1997)). We have noted in the past that the Legislature has provided for the broad exercise of DOC's discretion in all matters regarding the administration of a prison facility, including disciplinary infractions by prisoners. Russo v. N.J. Dep't of Corr.,324 N.J. Super.576, 583 (App. Div. 1999).

In his first and second points raised on appeal, Shepherd challenges the determination regarding the forfeiture of all money except for $50.

He contends in Point I that the money should be returned because the hearing officer did not determine how the funds were obtained, as required by N.J.A.C. 10A:3-6.6(a)(2). He argues the regulation applies pursuant to Ries v. N.J. Dep't of Corr., 396 N.J. Super. 235, 239 (App. Div. 2007) which held that prison regulations continue to apply to inmates that have escaped. As a community release resident at Tully House, Shepherd contends that the legally obtained money in excess of $50 should be placed in his account.

Alternatively, he contends in Point II that the money should be considered "contraband" which, pursuant to N.J.A.C. 10A:3-6.3(b)(2), authorizes the money be sent to his family as requested.

We are unpersuaded by these arguments. As Shepherd acknowledges, he remained subject to DOC regulations while he was an escapee. Reis, supra, 396 N.J. Super. at 239. We find the DOC followed the appropriate regulations in keeping all his money except $50. In this regard, N.J.A.C. 10A:3-6.6(a) provides:

(a) All unauthorized money, unauthorized check or currency found in an inmate's possession shall be immediately seized and turned over to the Central Control or Special Investigations Division together with reports required by N.J.A.C. 10A:3-6.

1. Any inmate found to be in possession or to have control over such money, unauthorized checks or currency shall be subject to disciplinary action.

2. A determination as to the manner in which the money, unauthorized checks or currency has been acquired shall be made by the Disciplinary Hearing Officer/Adjustment Committee at the disciplinary hearing from the report regarding the incident.

3.If the Disciplinary Hearing Officer/Adjustment Committee concludes that the money, checks or currency is unauthorized or has been acquired through improper means, the Disciplinary Hearing Officer/Adjustment Committee shall recommend to the administration that the money, checks or currency shall be forfeited by the inmate, deposited in the General Treasury Fund and recorded in the Law Enforcement Dedicated Account of the Department of Corrections.

...

5. Money, checks or currency forfeited by the inmate which is not the subject of a disciplinary action as determined by the Disciplinary Hearing Officer/Adjustment Committee or the Administrator shall be deposited in the inmate's account in accordance with N.J.A.C. 10A:2.

[(Emphasis added).]

As an escapee, Shepherd was not authorized to possess the money found in his possession when he was arrested. There is no requirement that the DOC determine how Shepherd earned or obtained the money in order to take disciplinary action. Assuming the facts as presented, that he obtained the money from family members or earned it through lawful work while an escapee, it still does not bar disciplinary forfeiture. Since the possessed money was unauthorized, found in Shepherd's possession while he was an escapee, the DOC had the authority under the above rule to retain it and elect not to deposit it into his inmate account.

Shepherd's reliance on N.J.A.C. 10A:3-6.3(b)(2) that authorizes contraband2 to be delivered to a relative or friend is misplaced. The DOC applied the requirements of N.J.A.C. 10A:3-6.6(a)(3) that an inmate must forfeit unauthorized money to the DOC. Here, we find the more specific disciplinary regulations related to money govern. see Wilson v. Unsatisfied Claim & Judgment Bd., 109 N.J. 271, 278 (1988). Further, the agency is given deference in the application of its regulations. Wnuck, supra,337 N.J. Super.at 56.

In Point III, Shepherd contends the sanction of ninety days loss of telephone privileges and ninety days loss of visits improperly exceed the punishment set forth in N.J.A.C. 10A:4-5.1(a).

As to the phone privileges, the sanctions are within the DOC's discretion, and we are satisfied that such discretion was not abused here. In accordance with N.J.A.C. 10A:4-5.1(a)(2), an inmate charged with an asterisk offense may be sanctioned with up to thirty days loss of one or more correctional facility privileges. Shepherd was found guilty of two asterisk offenses, *.101 (escape), and *.207 (possession of money or currency in excess of $50), and the sanctions were combined. Moreover, N.J.A.C. 10A:4-5.1(g)(6) gives the hearing officer the authority to recommend additional sanctions of loss of telephone privileges for up to one year. Therefore, we find the DOC did not exceed its authority in sanctioning Shepherd ninety days loss of telephone privileges.

However, with respect to the ninety days loss of visits, N.J.A.C. 10A:4-5.1(g)(7) only authorizes "a loss of contact visit privileges for up to one year provided the offense is specifically related to, or concerned with a visit program...."(emphasis added). Here, Shepherd's offenses did not involve a visit program. They involve escape and unauthorized money. Also, Shepherd's sanction is for visits, not contact visits. The DOC does not cite any specific authority to justify loss of visits for more than sixty days - thirty days for each offense pursuant to N.J.A.C. 10A:4-5.1(a)(2).

The record before us is unclear whether the disciplinary sanction against Shepherd regarding loss of visits has been suspended subject to the within appeal. If it has, then the sanction shall be reduced to sixty days, thirty days for each offense. If the sanction has taken effect, Shepherd's inmate disciplinary records shall at least reflect this modification.

Lastly, Shepherd argues in Point IV that his substitute counsel was incompetent and ineffective because he overlooked "clear and obvious violations of N.J.A.C. Title 10A" which allegedly "violated his inmate right to a fair [d]isciplinary [h]earing". We find no merit to this claim.

Where an inmate charged with asterisk offenses receives assistance from a counsel substitute who is not "sufficiently competent," due process protections have been effectively denied. Avant v. Clifford, 67 N.J. 496, 529 (1975). Nonetheless, Shepherd has not established a specific manner in which counsel substitute fell below acceptable standards that affected the outcome of the proceedings. Accordingly, we find that Shepherd is not entitled to relief based upon a claim of ineffective assistance of counsel substitute.

Affirmed as modified.

1 This particular charge is not a subject on appeal.

2 N.J.A.C. 10A:1-2.2 defines contraband as an unauthorized item, article, or material found in an inmate's possession.