SHAWN HERSEY 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NOT FOR PUBLICATION WITHOUT THE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-03756-13T2

SHAWN HERSEY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________

October 7, 2015

Submitted September 22, 2015 Decided

Before Judges Fisher and Rothstadt.

On appeal from the New Jersey Department

of Corrections.

Shawn Hersey, appellant pro se.

John J. Hoffman, Acting Attorney General,

attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).

PER CURIAM

Shawn Hersey, who was previously incarcerated at the Adult Diagnostic and Treatment Center in Avenel (ADTC),1 appeals from the March 21, 2014 final administrative decision of the Department of Corrections (DOC) adjudicating him guilty of institutional infractions .453, using any equipment or machinery contrary to instructions or posted safety standards, and .705, commencing or operating a business or group for profit or commencing or operating a nonprofit enterprise without the approval of the Administrator. N.J.A.C. 10A:4-4.1(a). He argues his adjudication should be set aside because the DOC failed to (1) serve him with his charges in a timely matter, (2) prove the elements of the charges brought against him by substantial evidence, (3) "promulgate clear rules . . . prohibiting" his conduct, and (4) provide written reasons for its determination.

We considered appellant's arguments in light of our review of the record and the applicable legal principles. We affirm appellant's adjudication for the .453 offense, but reverse as to the .705 offense.

The institutional charges brought against appellant were the result of an ADTC's administrator March 12, 2014 discovery of an unauthorized, ten-page newsletter regarding events in appellant's housing unit. An investigation ensued in which appellant admitted he created the newsletter using the institution's law library's computer. According to the investigator, appellant stated he did not receive any type of compensation for the newsletter and he created it for "fun." He also stated he was the only person involved in its creation. According to appellant's written statement, he prepared the newsletter to sharpen his word processing skills and to provide a source of entertainment for another inmate, who was an "elderly man" in need of cheering up.

The disciplinary report issued as a result of the investigation indicated the law library as the place of the alleged infraction and February 2014 as the date. However, as noted, the newsletter was not discovered until March 12, 2014, and reported the next day. The discovery was followed by an interview of the appellant and the March 14, 2014 service of the charges on him. Appellant pled not guilty and withheld a formal statement until his courtline hearing. His request for counsel substitute was granted. The courtline hearing was initially scheduled for March 17, but was postponed and ultimately rescheduled for March 21, 2014.2 At the hearing, the hearing officer considered the investigator's statement and the newsletter as well as appellant's written statements. Counsel substitute argued issues relating to the timeliness of services of the charges, the meaning of a business or enterprise and there being no clear posted rules about the use of the computer in the law library.

After considering the evidence and arguments, the hearing officer adjudicated appellant guilty of the .453 offense. In the hearing officer's written statement of adjudication, she stated

Pleads not guilty [but] offers no evidence to contradict [written evidence admitted]. Charge as written has merit. All relied on to determine guilt. Please note [inmate] in trusted position ([counsel substitute]) and as such is acutely aware of rules regarding use of equipment.

The hearing officer sanctioned appellant with various administrative penalties for the infraction, after considering that appellant had no mental health or prior disciplinary history.

In finding appellant guilty of the .705 charge, the hearing officer relied upon the same evidence and imposed similar sanctions. The officer also noted that in order for appellant to be guilty, the "business does not have to be for profit."

The hearing officer's determination of guilt was subsequently affirmed by the DOC, but his sanctions were modified.3 This appeal followed.

The scope of our review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)); see also Szemple v. Dep't of Corr., 384 N.J. Super. 245, 248 (App. Div.), certif. denied, 187 N.J. 82 (2006). "Our role is to engage in a careful and principled consideration of the agency record and findings." DeCamp v. N.J. Dept. of Corr., 386 N.J. Super. 631, 636 (App. Div. 2006) (citation and internal quotation marks omitted). "Accordingly, our function is not to merely rubberstamp an agency's decision[.]" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010) (citation omitted). However, "[w]e cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005) (citing Henry, supra, 81 N.J. at 579-80).

Moreover, we "should give considerable weight to a state agency's interpretation of a statutory scheme that the legislature has entrusted to the agency to administer." In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010). "We will defer to an agency's interpretation of both a statute and implementing regulation, within the sphere of the agency's authority, unless the interpretation is 'plainly unreasonable.'" Ibid. However, we are "not bound by an agency's interpretation of a statute or its determination of a strictly legal issue[.]" Lavezzi v. State, 219 N.J. 163, 172 (2014) (citations alteration and internal quotation marks omitted). "Thus, to the extent [the agency's] determination constitutes a legal conclusion, we review it de novo." Ibid.

"[A] disciplinary hearing officer's adjudication that an inmate committed a prohibited act must be based on substantial evidence in the record." Figueroa, supra, 414 N.J. Super. at 191 (citing N.J.A.C. 10A:4-9.15(a)). Substantial evidence has been defined alternately as "such evidence as a reasonable mind might accept as adequate to support a conclusion," and "evidence furnishing reasonable basis for the agency's action." Id. at 192 (citations and internal quotations marks omitted).

Also, prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply to those hearings. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Prisoners are, however, entitled to certain limited due process protections. Ibid. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the central office staff, a limited right to call witnesses, the assistance of counsel substitute, and a right to a written statement of evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995).

Appellant's challenge to the timeliness of the service of notice of the charges made against him, the sufficiency of the evidence establishing his guilt as to the .453 charge, and the sufficiency of the DOC's reasons for its decision lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D).

The 705 charge is different. Contrary to the DOC's argument, we find there was no evidence to establish defendant was conducting any type of business or enterprise, for profit or otherwise. Compare Russo v. N.J. Dept. of Corrs., 324 N.J. Super. 576, 580 (App. Div. 1999) (finding sufficient evidence to support the charge included a "diskette [that] disclosed that appellant was conducting a gambling operation in which inmate customers paid for the privilege of playing the odds with cigarettes[,] . . . that appellant was purchasing large quantities of cigarettes using outside agents who would pay by credit card[, that t]he cigarettes were sold to inmates who either paid appellant directly or directed relatives or associates to pay him through outside agents. The diskettes also disclosed that appellant was routinely accepting payment for assisting inmates in their appeals and related litigation").

While we do not intend to require in every case the same level of evidence of a business or enterprise that sustained the charge in Russo, and we agree with the hearing officer's observation that the prohibited act does not require proof of a for profit business, we find that the evidence against appellant on this charge did not supply any support for the agency's decision. The evidence only established appellant created the newsletter and gave it to one other person. We cannot conclude this evidence was "substantial" such that a reasonable person would conclude from it the appellant committed a .705 violation.

Affirmed in part and reversed in part. The matter is remanded for vacating appellant's adjudication and penalty as to the .705 charge.

1 Appellant is actually a New Hampshire inmate who was incarcerated at the ADTC pursuant to the Interstate Corrections Compact, N.J.S.A. 30:7C-1 to -12. See also N.J.A.C. 10A:10-3.16 (stating regulations governing applicability of disciplinary hearings to prisoners from other states). While at the ADTC, he served as a paralegal and counsel substitute to other prisoners. According to appellant, his adjudication in this matter negatively impacts his New Hampshire parole eligibility.

2 The noted reason for the postponement was the hearing officer's need to review "D-2," which consisted of a written submission on behalf of appellant that included various definitions of "business" and "enterprise," and legal arguments regarding notice to inmates of charges brought against them. It was submitted by counsel substitute in support of a motion to dismiss the charge. The hearing officer denied the motion in a written statement on March 20, 2014, noting that the submission had "no value," appellant had been an inmate for "a number of years," and acted as counsel substitute in his capacity as a paralegal at the ADTC. As a result, the hearing officer found appellant was "acutely aware of the rules and regulations of the institution as well as those set forth in N.J.A.C. 10A."

3 The modification was required because appellant was no longer an inmate in New Jersey.