Opinion
DOCKET NO. A-0356-12T2
03-17-2014
ALFRED LAWSON, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Alfred Lawson, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Maven.
On appeal from the New Jersey Department of Corrections.
Alfred Lawson, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief). PER CURIAM
Alfred Lawson is currently incarcerated at Northern State Prison, serving a thirteen-year maximum sentence for narcotics and weapons offenses. He appeals from a final agency decision adjudicating him guilty of prohibited act *.101, escape, N.J.A.C. 10A:4-4.1. We affirm.
Lawson was previously housed at the Kintock I halfway house. On January 13, 2012, the halfway house manager observed Lawson receive a cell phone from another inmate. When asked to surrender the cell phone, he refused and headed towards the lobby, escaping out the front door. Authorities were notified and an arrest warrant was issued January 17, 2012. He remained at large until June 6, 2012, when police learned of the arrest warrant during a routine traffic stop involving Lawson. He was held at the Union County jail until July 11, 2012, then returned to the custody of the Department of Corrections ("DOC"). The next day, prison officials served Lawson with the disciplinary report charging him with escape. Because he was charged with an asterisk offense, he was offered, and accepted, assignment of counsel substitute.
At the hearing, Lawson pled guilty to the charge. The hearing officer imposed the following sanctions: (1) fifteen days of detention; (2) a 180-day period of administrative segregation; and (3) a 365-day loss of commutation time. Lawson appealed to the prison administrator, seeking leniency. He claimed that he left the halfway house because his father, whom he just met in 2008 and from whom he had learned a lot, died and he wanted to attend his funeral. He expressed that he was truly sorry. The sanctions imposed by the hearing officer were upheld and the present appeal followed.
On appeal, he contends he was denied procedural due process because he was unaware of the nature of the charge against him for one month and six days. He additionally contends his assigned counsel substitute was ineffective. We reject both contentions.
N.J.A.C. 10A:4-9.2 states:
The disciplinary report shall be served upon the inmate within 48 hours after the violation unless there are exceptional circumstances. The report shall be delivered by the reporting staff member or the investigating custody staff member. The report shall be signed by the person delivering it and the date and time of delivery shall be noted. The inmate shall have 24 hours to prepare his or her defense.
It is undisputed that Lawson did not receive the disciplinary charge within 48 hours of his apprehension. He was not, however, returned to DOC custody until July 11, 2012, one month and six days following his apprehension. Within 48 hours of his transfer to DOC's custody, he was served with the disciplinary charge. In accordance with N.J.A.C. 10A:4-9.9(a), DOC's failure to adhere to time limits did not require dismissal of the disciplinary charge because (1) the length of the delay was not unreasonable given that Lawson was not in the custody of DOC; (2) Lawson failed to demonstrate any prejudice resulting from the delay in receiving notice of the charge; (3) given the nature of the charge, escape, he was well aware that, at the very least, he was facing a charge of escape; and (4) his escape constituted a serious offense. When the delay in receiving the charge is balanced against the serious nature of the charge and the absence of any prejudice to defendant, he suffered no denial of procedural due process.
Lawson next claims his assigned counsel substitute failed to provide effective assistance. Specifically, he contends he was expressly told not to challenge the disciplinary charge on due process grounds and counsel substitute failed to object to the hearing officer's refusal to permit him the opportunity to raise a defense.
Although counsel substitute in prison disciplinary hearings is not equivalent to the constitutional right to formal or retained counsel in non-institutional proceedings, Avant v. Clifford, 67 N.J. 496, 536-37 (1975), appointment of counsel substitute is among the procedural safeguards to which inmates are entitled when charged with asterisk offenses, as were the circumstances here. An inmate who receives assistance from a counsel substitute who is not "sufficiently competent" has been effectively denied the due process protections established by the applicable regulations. Id. at 529.
Counsel substitute expressed Lawson's remorse to the hearing officer. Lawson has not, in this appeal, advanced any defense to the charge or evidence of prejudice in the delay in receiving the charge. Consequently, even assuming counsel substitute's assistance fell below acceptable standards, Lawson has failed to establish that the outcome of the proceedings would have been different.
The scope of our review of administrative agency decisions is quite limited. We will reverse such a decision "only if it is arbitrary, capricious or unreasonable or 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). We are not to substitute our judgment for that of the agency, Brady v. Dep't. of Pers., 149 N.J. 244, 264 (1997), nor substitute our fact-finding for that of the agency. Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). We "must defer to the agency decision if the findings of fact are supported by substantial credible evidence in the record and are not so wide of the mark as to be manifestly mistaken." Ibid. (citations omitted). Judged by these standards, we are satisfied there is substantial credible evidence in the record to support the agency decision and discern no basis for our intervention.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION