Opinion
DOCKET NO. A-4943-13T4
11-25-2015
KHALIL PATRICK, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Khalil Patrick, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, Of Counsel; Gregory R. Bueno, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the New Jersey Department of Corrections. Khalil Patrick, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, Of Counsel; Gregory R. Bueno, Deputy Attorney General, on the brief). PER CURIAM
Inmate Khalil Patrick (Patrick) appeals from an order by the New Jersey Department of Corrections (DOC) upholding an adjudication imposing disciplinary sanctions. We affirm.
I.
Patrick is incarcerated at New Jersey State Prison in Trenton. He is currently serving a fifty-five-year sentence for various aggravated assault and weapons offenses.
On April 30, 2014, the prison's Special Investigations Division (SID) discovered that Patrick sent a letter to an inmate in another correctional facility containing what the SID believed to be gang-related material. Although the letter was undated, the confiscated envelope showed the letter was sent on April 21, 2014. While the letter itself did not identify the sender or recipient, the envelope bore both Patrick's name as the sender, and the name of the inmate to whom Patrick sent the letter. The SID's Senior Investigator concluded that the letter related to a Security Threat Group known as the "Bloods," and contained "code words" that indicated gang activity. For example, Patrick used known code language to: refer to a subordinate in the Bloods; promote the inmate receiving the letter to the rank of "Original Gangster;" ask the inmate if he understood the responsibilities that come with the rank of "Original Gangster;" and to indicate that a certain individual "is to be assaulted by the gang." The Senior Investigator based that conclusion on his more than thirteen years of specialized training and expertise.
"'Security Threat Group' means a group of inmates possessing common characteristics, interests and goals which serve to distinguish the group or group members from other inmate groups or other inmates and which, as a discrete entity, poses a threat to the safety of the staff, other inmates, the community or causes damage to or destruction of property, or interrupts the safe, secure and orderly operation of the correctional facility(ies)." N.J.A.C. 10A:3-11.2.
As a result, on May 1, 2014, Patrick was charged with "participating in an activity related to a Security Threat Group," in violation of N.J.A.C. 10A:4-4.1(a), Prohibited Act *.010. At 9:30 a.m. on May 1, Patrick was served with notice of the disciplinary charge. An inmate paralegal was appointed as Patrick's counsel substitute pursuant to N.J.A.C. 10A:4-9.12(a).
A disciplinary hearing was held on May 2, 2014 at about 12:15 p.m. The adjudication report indicates that the Disciplinary Hearing Officer (DHO) considered staff seizure reports documenting the seizure of the letter, and SID reports determining the letter used numerous phrases and references associated with the Security Threat Group. The DHO held that the Senior Investigator's training and experience made him "qualified to render an expert opinion" on deciphering the confiscated letter. Patrick and his counsel substitute made statements before the DHO arguing that because the date of the infraction was unknown, Patrick's due process rights had been violated. However, during the hearing, Patrick pleaded guilty and admitted his guilt. The DHO accepted Patrick's guilty plea and imposed sanctions of 210 days in administrative segregation, 15 days in detention with credit for time served, and 180 days' loss of phone, television, and radio privileges.
The report erroneously states that the hearing took place at 12:15 a.m. --------
On May 4, 2014, Patrick filed an administrative appeal of the disciplinary decision. On May 22, 2014, the Assistant Superintendent upheld the decision, finding that the adjudication complied "with the New Jersey Administrative Code on inmate discipline," and that the "preponderance of evidence supports the decision[.]" Patrick appeals to this court.
II.
"'Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.'" Jenkins v. Fauver, 108 N.J. 239, 248-49 (1987) (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935, 951 (1974)). In Avant v. Clifford, 67 N.J. 496, 525-46 (1975), our Supreme Court set forth those due process rights that must be afforded to inmates, and those rights are now codified in a comprehensive set of DOC regulations, N.J.A.C. 10A:4-9.1 to -9.28. Those regulations "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due-process rights of the inmates." Williams v. Dep't of Corr., 330 N.J. Super. 197, 203 (App. Div. 2000) (citing McDonald v. Pinchak, 139 N.J. 188, 202 (1995)).
"Our role in reviewing the decision of an administrative agency is limited." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). "We defer to an agency decision and do not reverse unless it is arbitrary, capricious or unreasonable or not supported by substantial credible evidence in the record." Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259 (App. Div. 2010). Nonetheless, we must "engage in a 'careful and principled consideration of the agency record and findings.'" Williams, supra, 330 N.J. Super. at 204 (quoting Mayflower Secs. v. Bureau of Secs., 64 N.J. 85, 93 (1973)). We must hew to our standard of review.
III.
On appeal, Patrick raises the following claims:
POINT I: THE DISCIPLINARY HEARING OFFICER ABUSED HIS DISCRETION WHEN HE FAILED TO POSTPONE THE PROCEEDINGS TO CONDUCT FURTHER INVESTIGATION AS REQUIRED BY N.J.A.C. 10A:4-9.12. (Raised Below)
POINT II: THE DISCIPLINARY HEARING OFFICER ABUSED HIS DISCRETION AND VIOLATED PATRICK'S RIGHT TO DUE PROCESS WHEN HE IMPERMISSIBILY INJECTED EXTRANEOUS EVIDENCE INTO THE PROCEEDINGS TO SECURE A GUILTY PLEA. (Raised Below)
POINT III: THE [SIC] WAS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE FACTUAL ALLEGATIONS. (Raised Below)
POINT IV: COUNSEL SUBSTITUTE WAS INEFFECTIVE FOR FAILING TO ENSURE THE RECORD ACCURATELY REFLECTED WHAT TOOK PLACE AT THE DISCIPLINARY HEARING. (Not Raised Below)
POINT V: THE ERRORS COMPLAINED OF HEREIN CAN NOT BE DEEMED HARMLESS. (Not Raised Below)
Patrick's first three claims arose before he pled guilty. However, he waived his right to assert those claims by pleading guilty.
While a disciplinary hearing "'is not part of a criminal prosecution,'" Avant, supra, 67 N.J. at 522 (citation omitted), we draw guidance from the criminal context. The United States Supreme Court "dealt at some length with the effect of a plea of guilty on the later assertion of claimed violations of constitutional rights" in Brady, McMann, and Parker. Tollett v. Henderson, 411 U.S. 258, 262-63, 93 S. Ct. 1602, 1606, 36 L. Ed. 2d 235, 241 (1973) (citing Brady v. United States, 397 U.S. 742, 750, 90 S. Ct. 1463, 1470, 25 L. Ed. 2d 747, 757 (1970); McMann v. Richardson, 397 U.S. 759, 770, 90 S. Ct. 1441, 1448, 25 L. Ed. 2d 763, 773 (1970); and Parker v. North Carolina, 397 U.S. 790, 795, 90 S. Ct. 1458, 1461, 25 L. Ed. 2d 785, 791 (1970)). Those three cases have become known as the "Brady trilogy." Id. at 265, 93 S. Ct. at 1607, 36 L. Ed. 2d at 242.
"In each of those cases the habeas petitioner alleged some deprivation of constitutional rights that preceded his decision to plead guilty." Ibid. When "the guilty plea had been made intelligently and voluntarily with the advice of competent counsel," it served as a bar on later claims. Ibid. A guilty plea is also "a waiver of the right to contest the admissibility of any evidence the State might have offered against the defendant." McMann, supra, 397 U.S. at 766, 90 S. Ct. at 1446, 25 L. Ed. 2d at 771. This is because a guilty "plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial — a waiver of his right to trial before a jury or a judge." Brady, supra, 397 U.S. at 748, 90 S. Ct. at 1469, 25 L. Ed. 2d at 756. Moreover, a plea of guilty "is itself a conviction; nothing remains but to give judgment and determine punishment." Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1711-12, 23 Ed. 2d 274, 279 (1969).
Similarly, in New Jersey, "[t]he waiver effect of a guilty plea has been uniformly recognized by our courts." State v. Kaye, 176 N.J. Super. 484, 488 (App. Div. 1980). "'Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.'" State v. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997); citing Tollett, supra, 411 U.S. at 267, 93 S. Ct. at 1608, 36 L. Ed. 2d at 243). Indeed, "[a] plea of guilty amounts to a waiver of all issues, including constitutional claims, that were or could have been raised in prior proceedings." State v. Marolda, 394 N.J. Super. 430, 435 (App. Div.), certif. denied, 192 N.J. 482 (2007). When a defendant pleads guilty, "the principles enunciated in Tollett, Knight and Crawley apply to bar his claims based upon errors or defects in the proceedings that preceded his plea." State v. Owens, 381 N.J. Super. 503, 510 (App. Div. 2005).
We also find guidance from civil cases, where similar principles govern. "It is axiomatic . . . that a party cannot appeal from a judgment or order to which he consented." Bass ex rel. Will of Bass v. DeVink, 336 N.J. Super. 450, 455 (App. Div.), certif. denied, 168 N.J. 292 (2001) (citing Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877 , 71 S. Ct. 123, 95 L. Ed. 638 (1950)). Thus, "a judgment or order entered with the consent of the parties is ordinarily not appealable for the purpose of challenging its substantive provisions." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 618-19 (App. Div. 2010). Further, a party who consents to "a final judgment cannot thereafter obtain an advisory appellate determination regarding an alleged interlocutory error." Id. at 619. "This is because the rule allowing an appeal as of right from a final judgment contemplates a judgment entered involuntarily against the losing party." N.J. Schs. Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308-09 (App. Div. 2010).
Based on that guidance, we hold that an inmate who voluntarily pleads guilty at a disciplinary hearing cannot challenge on appeal purported violations of his rights or other errors that occurred prior to his guilty plea, or challenge the admissibility of the evidence that would have been used against him had he not pled guilty. Here, Patrick voluntarily pleaded guilty to the disciplinary violation, and does not deny committing it. Thus, Patrick is prohibited from raising such claims of prior error.
Therefore, Patrick's first three claims are barred by his guilty plea and ineligible for review. However, for the sake of completeness, we agree that those claims were properly rejected in his administrative appeal.
A.
First, Patrick argues that his right to due process was violated because the DHO failed to postpone the hearing. Patrick cites N.J.A.C. 10A:4-9.12(d), which provides that "counsel substitute shall be permitted reasonable time to speak to the inmate and shall be given at least 24 hours to prepare the inmate's defense."
Patrick alleges that he was not assigned and did not meet with his counsel substitute until minutes before the disciplinary hearing. However, there is nothing in the record to support that allegation. The record shows Patrick had more than twenty-four hours between service of the disciplinary notice and the hearing in which to prepare a defense. In addition, the record does not show, and Patrick does not claim, that either Patrick or his counsel substitute requested additional time to prepare. Moreover, Patrick's counsel substitute did present a defense, as shown by his statements during the hearing arguing that the DOC's failure to allege a date and time of the infraction was a violation of Patrick's due process rights. Accordingly, we find no basis in the record for Patrick's argument that he did not have sufficient time to meet with his counsel substitute to review the evidence, consult, and prepare a defense.
In any event, Patrick does not claim that the lack of a postponement made his guilty plea involuntary. Thus, this claim of prior error is barred by his guilty plea.
B.
Second, Patrick contends that the DHO improperly injected extraneous evidence into the proceedings. Patrick alleges that during the hearing, when he noted that the letter was unsigned, the DHO stated that the SID had an intercept on Patrick's mail. Again, there is nothing in the record that indicates that the DHO made this remark.
Even without evidence of an intercept, it should have come as no surprise to Patrick that the prison knew who sent the letter. The letter's envelope listed "Mr. Khalil Patrick" as the sender of the letter, along with his inmate number and correctional institution, as required by N.J.A.C. 10A:18-2.9. Inmates are informed of DOC rules and regulations regarding the mailing and receiving of correspondences. N.J.A.C. 10A:18-2.1. These regulations state that "[o]utgoing correspondence shall be reviewed by designated correctional facility staff to determine the sender." N.J.A.C. 10A:18-2.7(a). Furthermore, DOC regulations warn that "[a]ll inmate correspondence to or from other incarcerated inmates may be read to ensure that the correspondence does not contain any content prohibited by N.J.A.C. 10A:18-2.14." N.J.A.C. 10A:18-2.5(a). N.J.A.C. 10A:18-2.14(a)(2)(vii) provides correspondence may be seized if it contains information on "[a]nything that might pose a threat to the safety, security or orderly operation of the correctional facility." The seizure reports offered into evidence at the hearing told Patrick the letter was seized because it posed just such a threat.
In any event, it is unclear that such a comment would be improper. Our traditional criminal evidentiary standards do not apply in the prison disciplinary hearing context, where evidentiary standards are significantly lower. See Jacobs v. Stephens, 139 N.J. 212, 222 (1995). Since DOC disciplinary hearings are administrative hearings, the Administrative Procedures Act (APA) provides they are not "bound by rules of evidence." N.J.S.A. 52:14B-10(a); see also Hampton v. Dep't of Corr., 336 N.J. Super. 520, 529 (App. Div. 2001) ("the Department of Corrections is an agency to which the APA applies"). Even hearsay evidence is permitted, Weston v. State, 60 N.J. 36, 50-51 (1972), though "an adjudication may not be based solely on hearsay," Negron v. N.J. Dep't of Corr., 220 N.J. Super. 425, 432 (App. Div. 1987). A DHO has "the authority to summon witnesses, take testimony, receive documentary evidence and shall have access to all correctional facility records which are relevant and necessary to the adjudication of any disciplinary case." N.J.A.C. 10A:4-8.4(a). Thus, even if the DHO made the comment, it may have been based on relevant correctional facility records accessible to the DHO which would have been admitted if Patrick had not pled guilty.
Patrick argues it is a reasonable inference that the DHO told him SID had an intercept on his mail in an effort to persuade him to plead guilty. Revelation of potential evidence to an accused to encourage a guilty plea is neither uncommon nor improper. Nor is there any indication the DHO was biased if he informed Patrick of the potential evidence against him. We reject Patrick's argument that any reference to such evidence rendered Patrick's guilty plea involuntary.
C.
Third, Patrick argues the adjudication was not supported by substantial evidence. However, the documents entered into evidence before Patrick pled guilty provided "substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a); see Jacobs v. Stephens, 139 N.J. 212, 222 (1995). Indeed, Patrick declined to confront or introduce any witnesses to counter those documents. Moreover, we have recognized "that determining whether prison materials are gang related constitutes a particular Department of Corrections' expertise that is usually exercised by staff members[.]" Balagun v. Dept. of Corrs., 361 N.J. Super. 199, 202 (App. Div. 2003).
Patrick argues that there was no chain of custody form that demonstrated where the letter was found or who had possession of it. However, DOC regulations require the staff member that made the seizure to submit the contraband to SID with a completed Seizure of Contraband Report. N.J.A.C. 10A:3-6.1(a)(1). Here, a completed Seizure of Contraband Report was introduced into evidence and considered by the DHO. The report stated where the envelope and letter were seized, and showed that the investigator who made the seizure sent the letter directly to the SID Senior Investigator who drafted Patrick's disciplinary charge and whose report on its contents was considered by the DHO. Thus, the report complied with N.J.A.C. 10A:3-6.1(a)(1).
Accordingly, we find that substantial credible evidence of Patrick's guilt was introduced before he pleaded guilty. That evidence was sufficient even without Patrick's guilty plea. Moreover, Patrick's admission of guilt added to the already-sufficient evidence, and he does not deny committing the disciplinary violation. In any event, his guilty plea removed the need for proof by substantial evidence, or for the DHO to "direct a further investigation" under N.J.A.C. 10A:4-9.6. Moreover, Patrick's guilty plea bars him from raising such a claim.
IV.
Patrick's fourth claim argument alleges an error arising after, and not barred by, his plea of guilty. Patrick contends that his counsel substitute was ineffective in failing to ensure the adjudication report accurately reflected what took place at the hearing. However, Patrick's argument points to no specific inaccuracy in the adjudication report, and he has shown none.
Furthermore, Patrick admittedly failed to raise this argument in his administrative appeal. "The obligation to exhaust 'administrative remedies before resort to the courts is a firmly embedded judicial principle.'" Ortiz v. N.J. Dep't. of Corrs., 406 N.J. Super. 63, 69 (App. Div. 2009) (citation omitted). Moreover, this court generally "will decline to consider an issue not presented to the trial judge unless it goes to the jurisdiction of the court, or concerns a matter of substantial public interest." Hill v. N.J. Dep't. of Corrs. Comm'r Fauver, 342 N.J. Super. 273, 293 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002) (citing, e.g., Nieder v. Royal Dem. Ins. Co., 62 N.J. 229, 234 (1973)). Thus, Patrick has failed to preserve or establish that counsel-substitute was "ineffective," even assuming an inmate can make such a claim. Cf. Avant, supra, 67 N.J. at 529, 537 (counsel substitutes are not attorneys).
We find Patrick's remaining arguments to be without sufficient merit to warrant further discussion. See R. 2:11-3(e)(1)(E), (e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION