TOYCE SAXTON 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NOT FOR PUBLICATION WITHOUT THE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-04280-12T3

TOYCE SAXTON,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

__________________________________

September 24, 2014

Submitted January 8, 2014 - Decided

Before Judges Nugent and Accurso.

On appeal from the New Jersey Department of Corrections.

Toyce Saxton, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Marvin L. Freeman, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

Appellant Toyce Saxton appeals from a 2012 final administrative decision of respondent Department of Corrections (DOC), classifying him an E-2 gang-minimum sex offense ("Category I") inmate. He was incarcerated for receiving stolen property, burglary, and simple assault. The DOC's decision was based on appellant's thirty-year-old conviction for kidnapping and other offenses that appellant committed when he was fourteen years old. Although appellant did not plead to a sexual offense along with the kidnapping charge, and though the victim's age was not an element of the offenses to which appellant pled guilty, the presentence report contained information that appellant groped the seventeen-year-old victim during the kidnapping. The DOC based its classification of appellant on that information. We affirm.

These are the facts. In 1982, appellant, then age fourteen, committed a series of "bump robberies" in which he or a co-defendant would drive their car into the rear bumper of a car in front of them and rob the other driver when that person got out to inspect the damage. During one of the robberies, appellant and a co-defendant drove off with both the victim's friend's car and the victim, whom they detained against her will. According to a presentence report, the victim was seventeen years old and reported that appellant touched her breasts and vaginal area during the incident. The same report stated that due to appellant's extensive history of delinquency, the Family Part waived jurisdiction. A grand jury subsequently indicted appellant.

The April 1984 judgment of conviction (JOC) revealed that the grand jury charged appellant in a nine-count indictment with conspiracy, two counts of robbery, kidnapping, two counts of aggravated assault, terroristic threats, theft, and aggravated criminal sexual contact. The JOC also disclosed that appellant pled guilty to one count each of conspiracy, robbery, kidnapping, and aggravated assault. The indictment was not included in the record so it is unknown whether the indictment stated the victim's age. If the transcript of appellant's guilty plea still exists, it was not included in the record, so there is no way to determine whether appellant acknowledged either the victim's age or that he inappropriately touched her. He denies molesting her. According to the JOC, the court sentenced appellant in accordance with a plea agreement to an aggregate prison term of twenty years, with seven years of parole ineligibility, the sentence to run concurrent with appellant's sentences on three other indictments and an accusation.

Based on the information in the JOC, it is evident that, even assuming appellant received no jail credits, he would have completed serving his sentence in April 2004, eight years before his incarceration on the 2012 charges. The record does not establish, and the State does not contend, that at any time after appellant completed serving his sentence for the 1982 offenses, the State attempted to impose on appellant Megan's Law's registration requirements contained in N.J.S.A. 2C:7-2.

After appellant began serving a four-year prison term in 2012, the DOC classified him as a Category I inmate. Appellant submitted an Inmate Remedy Form (IRF), challenging the classification as erroneous and requesting that the designation be removed. Acknowledging the reason for the classification was "obstensibly [sic] because of [appellant's] conviction for kidnapping," he asserted "the [l]aw is clear that a person must have been convicted of a sexual element in order for the sexual offender statut [sic] to apply." Because he had no "sex offense convictions," appellant believed the DOC's classification of him was incorrect.

A DOC staff member promptly replied that, after 2006, the DOC considered "kidnapping with sexual components" a Category I offense. The staff member informed appellant that, if appellant was not "sentenced to Megan's Law," he would "not have to register," but that he "will remain a [Category I] inmate while in custody."

Appellant filed an administrative appeal. The DOC denied it based on the following memo from a supervising classification officer

This is in response to your concerns regarding your conviction for Kidnapping under Ind#3695-11-83. There are two (2) separate issues that need to be addressed. The first being classified as a Category 1 inmate. Pursuant to Departmental Policy, any inmate with a present or past conviction for Kidnapping, 2C:13-1, with a sexual component, is to be considered a Category 1 inmate. Although the Aggravated Criminal Sexual Contact charge was dismissed, there was a "sexual component" to the offense.

The second issue is registration. Based on 2C:7-2, you do meet the eligibility requirement for registration as a sex offender, however, Essex County Court does have the authority to issue a court order removing that requirement. At this point, DOC must adhere to the law using the court documents on file.

Upon your release from Northern State Prison to Delaney Hall, registration material was sent to Essex County Prosecutor's Office. In reviewing your criminal history it does not appear that Essex County forwarded the material to the State Police for processing. I will make an attempt to reach out to the Court on your behalf asking for clarification. Be advised that this process takes some time to research as the offense is over 20 years old, so don't expect an immediate answer. You will be advised once a determination has been made by the Assistant Prosecutor assigned to Essex County Megan's Law Unit.

Five months later, an administrative analyst with the DOC sent appellant another letter, which stated

Your letter questioning the kidnapping charge as it relates to the registering as a sex offender was forwarded to me for review and response.

Based on the information available on the 1984 Kidnapping charge, the victim was a minor. Therefore, per 2C:7-2, ". . . kidnapping pursuant to N.J.S. 2C:13-1, criminal restraint pursuant to N.J.S. 2C:13-2, or false imprisonment pursuant to N.J.S. 2C:13-3 if a victim is a minor and the offender is not the parent of the victim . . ." does apply to your case. Consequently, the Department of Corrections is required to notify the affected Prosecutors of your release, who will make the final determination as to the registration.

A view of your Criminal History record does not indicate Registration. Therefore, an inquiry was made to the Essex County Prosecutor. Pending a response, the Department of Corrections will continue to apply 2C:7-2, as the victim of the kidnapping case was a minor.

In response, appellant filed a motion with this Court seeking to enjoin the DOC from classifying him as "Category I sex offense/registration required." We denied the motion but, noting the lack of opposition, stayed appellant's sex offender classification pending appeal. The DOC subsequently filed a motion for remand, which we granted so the DOC could contact the Essex County Prosecutor's Office to determine if appellant was required to register under Megan's Law.

After receiving additional information from the Essex County Prosecutor's Office, the DOC informed appellant that he was required to register under Megan's Law. The DOC's letter provided, in pertinent part

On April 26, 1984 you were convicted of first degree Kidnapping where the victim was under the age of eighteen. The sentence imposed for this conviction was still being served as of the effective date of Megan's Law, 10/31/1994. Hence, you are required to register under Megan's Law.

Per 2C:7-1a, ". . . and offenders who commit other predatory acts against children . . ." are required to register under 2C:7-2. Also, in the matter of T.T., 188 N.J. 321 (2006), the New Jersey Supreme court held that Megan's Law does apply to offenders convicted of crimes enumerated in 2C:7-2b(2) lacking a sexual component.

Accordingly, the DOC did not alter appellant's status as a Category I inmate.

This appeal followed. Appellant subsequently filed a motion for preliminary injunctive relief, which we denied. Appellant raises the following points for our consideration

POINT I

THE MATERIAL EVIDENCE RELIED UPON (PSI REPORT FROM 1984) BY RESPONDENT'S NEW JERSEY DEPARTMENT OF CORRECTIONS TO CLASSIFY AND DESIGNATE APPELLANT AS A SEX OFFENDER IS UNRELIABLE AND INSUFFICIENT. THE PRE-SENTENCE INVESTIGATION REPORT RELIED UPON CONTAINED UNSUBSTANTIATED HEARSAY REFERENCES, INACCURACIES AND MULTIPLE CONTRADICTORY STATEMENTS.

POINT II

DEFENDANT WAS NOT MADE AWARE OF THE DIRECT AND/OR PENAL CONSEQUENCES OF THE PLEA AGREEMENT WHICH SEEKS MEGAN'S LAW SEX OFFENDER REGISTRATION REQUIREMENT. THE DOC DID NOT APPLY THE CATEGORY 1 DESIGNATION TO APPELLANT UNTIL 2009 (11 YEARS AFTER APPELLANT'S SENTENCE FROM 1 984 EXPIRED IN 1998).

POINT III

THE NEW JERSEY DEPARTMENT OF CORRECTIONS['] ACTIONS ARE ARBITRARY AND CAPRICIOUS BECAUSE RESPONDENTS['] CLASSIFICATION AND DESIGNATION OF APPELLANT AS A SEX OFFENDER IS UNREASONABLE AND NOT SUPPORTED BY ANY CREDIBLE AND RELIABLE EVIDENCE IN THE RECORD.

Our review of agency determinations is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We generally "defer to the specialized or technical expertise of the agency charged with administration of a regulatory system." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008). For that reason, we ordinarily will "not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." Ibid. "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006). These principles apply to the DOC's decisions concerning the classification of inmates. See Szemple v. Dep't. of Corr., 384 N.J. Super. 245, 248 (App. Div.), certif. denied, 187 N.J. 82 (2006).

The DOC has developed a classification process for inmates that includes among its purposes, "[e]stablish[ing] objective criteria and a standardized process for inmate evaluation, custody level assignment, and correctional facility assignment." N.J.A.C. 10A:9-1.1(a)(1). There are six classes of custody status within the DOC: (1) close custody, (2) maximum custody, (3) medium custody, (4) gang minimum custody, (5) full minimum custody, and (6) community custody. N.J.A.C. 10A:9-4.1(a)(1)-(6). Inmates classified as "full minimum custody status" have opportunities to participate in work details and programs outside the main correctional facility with minimal supervision, whereas inmates classified as "gang minimum custody status" are restricted to activities on the grounds of the facility under continuous supervision of a custody staff member, civilian instructor or other employee. N.J.A.C. 10A:9-4.3(d), (e). The criteria for consideration for gang minimum custody status are set forth in N.J.A.C. 10A:9-4.8 which provides

(a) Inmates who meet the criteria set forth in this section shall be eligible to be considered for gang minimum custody status but not for full minimum custody status.

(b) In no case shall offenses adjudicated by a juvenile court be the sole basis for excluding an inmate from consideration.

(c) An inmate who is presently serving a sentence for one count of a sexual offense or criminal attempt and/or conspiracy to commit a sexual offense and has no prior adult convictions for sexual offenses, or an inmate who is presently serving a sentence for an offense that does not preclude reduced custody status but who has a prior adult conviction for one count of a sexual offense or criminal attempt and/or conspiracy to commit a sexual offense, may be considered for gang minimum custody status provided

1. The inmate is otherwise eligible according to the criteria set forth in this subchapter;

2. There is a psychiatric or psychological evaluation, not more than six months old, which focuses specifically on the inmate's criminal sexual behavior and his or her likelihood for success in reduced custody status; or

3. The inmate is housed at the Adult Diagnostic and Treatment Center (A.D.T.C.) and is approved for reduced custody status by the Institutional Classification Committee (I.C.C.) and Administrator of A.D.T.C., only for job assignment on A.D.T.C. property.

(d) An inmate who presently is serving a sentence for one conviction of arson or fire setting or malicious destruction involving arson, with no previous such adult convictions; or an inmate presently serving a sentence for a nonarson offense but who has a prior adult conviction for arson, fire setting or malicious destruction involving arson, is eligible to be considered for gang minimum custody status provided

1. He or she is otherwise eligible according to the criteria set forth in this subchapter; and

2. There is a psychiatric or psychological evaluation, no more than six months old, which focuses specifically on the inmate's likelihood for success in gang minimum custody status in light of the present or past conviction for arson.

(e) An inmate may be considered for gang minimum custody status when the inmate is presently serving a sentence, or the inmate has a prior adult conviction for the offenses of Kidnapping (N.J.S.A. 2C:13-1), Criminal restraint (N.J.S.A. 2C:13-2.a or b), False imprisonment (N.J.S.A. 2C:13-3) or any comparable out-of-State offense in which

1. The victim was under the age of 18;

2. The offender is not the parent of the victim; and

3. There is no sexual component.

The "[c]lassification of prisoners and the decision as to what privileges they will receive rests solely within the discretion of the Commissioner of the [DOC]." Smith v. N.J. Dep't of Corr., 346 N.J. Super. 24, 30 (App. Div. 2001); see also N.J.S.A. 30:1B-6. Inmates do not have a liberty interest in retaining or acquiring a less-restricted custody status. Smith, supra, 346 N.J. Super. at 29. "[A] change in a prisoner's conditions of confinement does not trigger the need for due process safeguards unless the change imposes 'atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Muhammad v. Balicki, 327 N.J. Super. 369, 372 (App. Div. 2000) (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 430 (1995)).

Although the "'atypical and significant hardship' standard of Sandin may be difficult to define, it is clear . . . that the loss of enjoyment of greater mobility than that accorded to the general prison population, less supervision and eligibility for more good-time credits do not fall within that standard." Id. at 372-73 (citation omitted). Thus, the DOC's decision to classify appellant as "gang minimum custody status" as opposed to "full minimum custody status" was a discretionary administrative decision that did not trigger the need for due process safeguards because it did not impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 327.

While the DOC must not arbitrarily classify appellant, that is not what happened here. The DOC classified appellant based on his kidnapping a seventeen-year-old victim and molesting her during that episode.

Appellant argues the DOC classified him based upon unreliable and inaccurate information in a thirty-year-old presentence report. He notes that until 2009, he had been classified as a "full-minimum/community release" inmate. He was then reclassified based on the old presentence report containing allegations that the victim was seventeen years old and that he touched her inappropriately during the kidnapping.

Appellant does not dispute that an inmate convicted of kidnapping a victim under the age of eighteen can be classified as "gang minimum custody status." Rather, he argues that he did not commit a sexual offense and that the information in the presentence report concerning the victim's age is unreliable. We are unpersuaded by that argument.

A defendant may challenge any facts contained in a presentence report. State v. Newman, 132 N.J. 159, 170 (1993). Furthermore, "in all . . . sentencing proceedings, defendants [are] entitled to disclosure of the presentence report with fair opportunity to be heard on any adverse matters relevant to the sentencing." State v. Kunz, 55 N.J. 128, 144 (1969). Nothing in the record suggests appellant has ever had a bona fide dispute about the victim's age. For that reason, and also considering that appellant has no liberty interest in a reduced classification, we reject appellant's argument that the DOC's decision was arbitrary and capricious because it was based on a presentence report.

Appellant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We make clear, however, that we do not address the issue of whether appellant is subject to the registration requirements of Megan's Law, N.J.S.A. 2C:7-2. That issue is not properly before us, the county prosecutor is not a party to this appeal, and we are unaware of whether the county prosecutor will seek to enforce those registration requirements when it has not sought to do so in the past.

Affirmed.