ARCHIE M. HICKOX v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2191-17T3

ARCHIE M. HICKOX,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

          Respondent.


                    Submitted October 29, 2019 – Decided December 13, 2019

                    Before Judges Yannotti and Currier.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Archie Hickox, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Jane C. Schuster, Assistant Attorney
                    General, of counsel; Michael Ezra Vomacka, Deputy
                    Attorney General, on the brief).

PER CURIAM
        Appellant Archie Hickox, an inmate, appeals from a decision of the New

Jersey Department of Corrections (DOC) denying his reclassification request

from gang minimum custody status to full minimum custody status. The DOC

denied the reclassification because of the severe nature and violence of his

offense; after striking his victim, appellant strangled him manually and with a

belt, and buried him.

        Appellant argues on appeal that the DOC violated his right to due process

and its decision was not in accordance with administrative regulations.

Appellant also challenges the DOC's articulation of the reasons for the decision.

We affirm.

        Appellant is serving a twenty-three-year sentence after his conviction on

first-degree aggravated manslaughter in 2001. In 2017, he requested to change

his classification from gang minimum custody status to full minimum custody

status. After a review by the prison's institutional classification committee

(ICC), the ICC voted to deny the reclassification. The ICC members advised

their denial was due to the extreme violent nature of appellant's offense.

Appellant was informed he could re-apply in a year or submit a transfer request

to another institution.1


1
    Appellant's release date is March 30, 2020.
                                                                         A-2191-17T3
                                         2
      We have "a limited role in reviewing a decision of a state administrative

agency." Henry v. Rahway State Prison,  81 N.J. 571, 579 (1980). We will

sustain the decision of an administrative agency "unless there is a clear showing

that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the

record." In re Herrmann,  192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't

of Civil Serv.,  39 N.J. 556, 562 (1963)). 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)).

      The classification of prisoners and decisions on custody status rests solely

within the discretion of the DOC. See, e.g.,  N.J.S.A. 30:1B-6, -9, 30:4-91.1 to

-91.3; see also Smith v. N.J. Dep't of Corr.,  346 N.J. Super. 24, 30 (App. Div.

2001) (citations omitted).     Inmates in correctional facilities do not have a

constitutionally protected liberty interest in a reduced custody status. Smith,

 346 N.J. Super. at 29. Indeed, "a reduction in custody status is a matter of

privilege, not of right." Id. at 30 (citing N.J.A.C. 10A:9-4.2).




                                                                               A-2191-17T3
                                          3
      The ICCs are charged with the assignment and reassignment of inmates to

specific custody levels. There are six categories of custody status within the

DOC: close custody, maximum custody, medium custody, gang minimum

custody, full minimum custody, and community custody.         N.J.A.C. 10A:9-

4.1(a).

      Here, appellant sought reclassification from gang minimum to full

minimum. Inmates classified as gang minimum custody remain on the grounds

of the facility and under supervision. N.J.A.C. 10A:9-4.3(d). In contrast, those

classified as full minimum custody may be assigned to "[w]ork details, jobs or

programs outside the main correctional facility, . . . with minimal supervision

. . . ." N.J.A.C. 10A:9-4.3(e)(1).

      The ICC does not have "unbridled discretion" in assigning a particular

custody level. Smith,  346 N.J. Super. at 33. When deciding whether to reduce

an inmate's custody status, the ICC must take into consideration all relevant

factors. N.J.A.C. 10A:9-4.5(a). Those factors include:

            1. Field account of the present offense;

            2. Prior criminal record;

            3. Previous incarcerations;

            4. Correctional facility adjustment;


                                                                        A-2191-17T3
                                          4
              5. Residential community program adjustment;

              6. The objective classification score;

              7. Reports from professional and custody staff;

              8. A conviction for a present or prior offense that
              resulted in a life sentence; and

              9. Any reason which, in the opinion of the
              Administrator and the [ICC], relates to the best interests
              of the inmate or the safe, orderly operation of the
              correctional facility or the safety of the community or
              public at large.

              [Ibid. (emphasis added).]

Additionally, the ICC may consider the "[n]ature and circumstance of [an

inmate's] present offense" when determining custody status. N.J.A.C. 10A:9-

3.3(a)(11).

      The ICC denied appellant's request based on the field account, or

circumstances, of his present offense and his criminal record. In doing so, the

ICC acted within its authority and in accordance with N.J.A.C. 10A:9-4.5(a) and

-4.8. The ICC fully considered appellant's application; he was accorded his full

due process rights.

      Appellant further challenges the ICC's articulation of the reasons for the

denial, claiming it mischaracterized his conduct while in the custody of the



                                                                           A-2191-17T3
                                          5
DOC, because he has never exhibited any violent behavior while in prison. We

see no merit to this contention.

      The record clearly shows the ICC's finding was not based on appellant's

institutional adjustment, his behavior while in prison, but instead was based on

his criminal record and the field account of the offense for which he was

convicted. See N.J.A.C. 10A:9-4.5(a)(1) to (2), (4).

      The DOC's denial was properly based on the violent nature of appellant's

underlying offense under N.J.A.C. 10A:9-3.3(a) and -4.5(a). We are satisfied

the DOC's determination was supported by the credible evidence in the record

and was not arbitrary or capricious.

      Affirmed.




                                                                        A-2191-17T3
                                       6