SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

_____________________________

Submitted October 29, 2019

– Decided Before Judges Ostrer and Susswein. On appeal from the New Jersey Department of Corrections. Gregory Ravenell, appellant pro se. Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Nicholas A. Sullivan, Deputy Attorney General, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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December 3, 20192 A

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Almost twe nty

- eight years ago, Gregory Ravenell shot and killed a delivery truck driver after robbing him. Ravenell was twenty

- years old. He pleaded guilty to felony murder , N.J.S.A. 2C:11

- 3(a)(3); the State dismissed charges of purposeful murder, N.J.S.A. 2C:11

- 3 (a)(1), 3(a)(2) , and related offenses; and Ravenell received a thirty

- year prison term, with no possibility of parole. After serving virtually all his adult life in prison, Ravenell will soon rejoin the community

. His "max

- out" date is January 7, 2022. To ease his reentry, Ravenell sought a reduction in his custody status to "full minimum

. " With t hat status , he could w ork outs ide the main prison with minimal supervision. N.J.A.C. 10 A:9

- 4.3(e)

. He could also a pply for transfer to the Residential Community Release Program (RCRP), colloquially known as a halfway house , but acceptance would depend on satisfying additional requirements

. See N.J.A.C. 10A:9

- 4.3(f); N.J.A.C. 10A:20 ; Shabazz v. N.J. Dep't. of Corr. , 385 N.J. Super. 117, 124

- 2 5 (App. Div. 2006). The Institutional Classification Committee (ICC) of South Woods State
Prison (SWSP) approved Ravenell for full minimum status, but the prison's associate administrator reversed the decision

. He stated that the "circumstances" of Raven ell's 1991 crime "indicate [] a blatant disregard for human life as well as an extreme level of violence." Ravenell appealed

. In March 2019, we granted3 A

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the Department's motion for a temporary remand, " t o review, clarify and further explain " the decision. The following month , the ICC of N orthern State Prison (NSP) , to which Ravenell had been transferred, rejected full minimum status

. The NSP Administrator then approved that decision , which the Department's Central Office affirmed

. The two ad ministrators thereafter issue d a written decision explaining their opposition to full minimum status. The y reaffirmed the SWSP Associate Administrator's original reason ing . The y referred to Ravenell's pre

- sentence investigation report, which they said in dicated that Ravenell mercilessly killed his victim. The y stated that Ravenell reached into the truck, put the victim in a headlock, and fatally shot him, although "[t]here was no reported evidence of a struggle and/or resistance by the victim" and " [t]he re was no indication that the victim was armed with a weapon or was resisting the robbery." The case returns to us for decision. In his appeal , Ravenell challenges the SWSP A ssociate A dministrator's authority to override the ICC's decision. He also c ontends the decision denying him full minimum status is arbitrary, capricious or unreasonable. We are unpersuaded by the first point, but remand as to the second, because the two

a dministrators relied on contested facts about Ravenell's crime , and there i s4 A

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insufficient evidence that they considered other relevant factors as Departmental regulations mandate

. We first address Ravenell's challenge to an a dministrator's authority to override an ICC. N.J.A.C. 10A:9

- 4.4 (a) states that "[c]hanges in inmate custody status within a particular correctional facility shall be made by the Institutional Classification Committee." See also N.J.A.C. 10A:9

- 3.1 (stating that "[e]ach correctional facility shall establish an I

. C

. C

. , which shall be responsible for

. . . [r]eview of inmate applications for change in custody status"). In considering a custody status change, t he ICC must consider "all relevant factors," which "may
inclu d e, but are not limited to" the following:

1. Field account of the present offen se; 2. Prior criminal record; 3. Previous incarcerations; 4. Correctional facility adjustment; 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 A dministrator and the I.C.C., 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. [N.J.A.C. 10A:9

- 4.5(a).]5 A

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Under a separate provision, decisions on an inmate's "custody status . . . and residential community programs shall be made after consideration of" twenty

- one factors. N.J.A.C. 10A:9

- 3.3(a). We presume these apply to initial decisions regarding such matters, as well as regular reviews, required by N.J.A.C. 10A:9

- 3.5. The twenty

- one factors are:

1. The objective classification scoring results (excluding inmates committed to A.D.T.C.); 2. Needs and interests expressed by inmate; 3. Age; 4. Family status; 5. Social contacts with family and friends; 6. Correctional facility adjustment; 7. Re sidential community program adjustment; 8. Educational history and needs; 9. Vocational history and needs; 10. Military history; 11. Nature and circumstance of present offense; 12. Prior offense record; 13. Records from previous confinement; 1 4. Detainers on file or pending; 15. Substance dependency and/or involvement; 16. Sexual adjustment; 17. History of escape, attempted escape or propensity for escape; 18. Current psychological and/or psychiatric reports; 19. Medical history and recommendations; 20. Arson history; 21. A conviction for any offense that resulted in a life sentence when one or more of the following aggravating circumstances are in the i nmate's present or prior offense h istory (see N.J.S.A. 2C:44

- 1a.)

. . . . [N.J.A.C. 10A:9

- 3.3 (a).]6 A

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As t he Acting Commissioner recently recognized , the regulation s say nothing about an a dministrator 's power to override an ICC

. Indeed, a prior Departmental standard vested in the ICC ' s "sole authority to reduce or increase an inmate's custody status." Jenkins v. Fauver , 108 N.J. 239, 2 45 (1987) (citing Standard 853); see also Shabazz , 385 N.J. Super. at 122 n.1 (noting that "[d]ecisions a s to custody status . . . are made by the Institutional Classification Committee"); Smith v. N.J. Dep't of Corr

. , 346 N.J. Super. 24, 31 (App. Div. 2001) (noting that a Department brief "explain[ed] that 'custody status' decisions are made by the Institutio nal Classification Committee"). Nonetheless, "the Commissioner possesses the residual authority to supersede the custodial classification standards." Jenkins , 108 N.J. at 255

. U sing hi s authority under N.J.A.C. 10A:1

- 2.4, the Acting Commissioner issued

a rule exemption on February 2, 2019, clarifying that an a dministrator could overrule ICC decisions to grant full minimum status. 1 The Acting Commissioner also authorized the Central Office to review any a dministrator's decision. The Acting Commissione r e xpressed the intention to incorporate th ese

1 T he rule exemption has not been published in the New Jersey Register, n or , as best we can tell, has it been posted on the Department's website . Therefore, we attach it , incl uding the Department's redactions, as an exhibit to the court's opinion.7 A

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clarification s in a formal rulemaking. See Jenkins , 108 N.J. at 2 5 5 (highlighting the need to adopt formal regulations). We discern no legal impediment to the Acting Commissioner's temporary clarification

. An agency may expressly reserve unto itself the power to waive a regulation. In re CAFRA Permit No. 87

- 0959

- 5 , 152 N.J. 287, 308 (1997). Here, the Department authorized the Commissioner to "exempt rules and regulations for the administrat ion of correctional facilities," and to "relax certain requirements of a rule for good cause ." N.J.A.C. 10A:1

- 2.4(a), (c). Recently,
our court ordered the Department to adopt formal regulations within 120 days "to codify the procedures and standards used in their review of classification decisions". Smith v. Dept. of Corr. , No. A

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- 17 (App. Div. Nov. 4, 2019) (slip op. at 11

- 12)

. 2 Ravenell contends that applying the Commissioner's clarification to his case violates the prohibition of ex post facto l aws . We disagree. We have noted that, in practice, an ICC decision has been subject to an administrator's review.
See Smith , 346 N.J. Super. at 27

- 28. Even assuming the Acting Commissioner has retroactively relaxed or changed the law, as opposed to c la rifying pre

2 W e cite this opinion, although not approved for publication, for its preclusionary effect on the issue of promulgating a formal regulation. See R. 1:36

- 3.8 A

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existing policy, authorizing administrators to override ICC s does not "impose[] additional punishment to an already completed crime." See Riley v. N.J. State Parole Bd. , 219 N.J. 270, 285 (2014) (addressing prohibition of ex post facto laws). A change in c ustody status generally does not implicate a liberty interest protected by the Due Process Clause , unless it involve s an "atypical , significant deprivation." Sandin v. Conner , 515 U.S. 472, 486 (1995); see also Shabazz , 385 N.J. Super. at 123. A bsent punitive intent, "the Ex Post Facto C lause does not bar a prison from changing the regulations governing their internal classification of prisoners

. " Dyke v. Meachum , 785 F.2d 267, 268 (10th Cir. 1986)

. Ravenell's challenge to the custody sta tus decision itself rests on firmer ground. Although t he Commissioner has "complete discretion" to determine an inmate's placement and custody statu s , the Commissioner has circumscribed that discretion as delegated to the ICC and prison administrators. S mith , 346 N.J. Super. at 29, 33. W e may disturb a final agency action if it is arbitrary, capricious or unreasonable, or it clearly violates its statute or State policy

. Will iams v. N.J. Dep't of Corr. , 423 N.J. Super. 176, 182 (App. Div. 2011)

. Also , " an administrative agency ordinarily must enforce and adhere to, and may not disregard, the regulations it has promulgated." Cnty. of Hudson v. N.J. Dep't9 A

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of Corr

. , 152 N.J. 60, 70 (1997) (citations omitted)

. The Commissio ner has not exempted ICCs or admi nistrators from applying the factors set forth in N.J.A.C. 10A:9

- 3.3 and N.J.A.C. 10A:9

- 4.5. The two administrators stated in their joint written decision in this case that an administrator's review of an ICC decision "must be based on criteria articulated in the regulations." 3
As we held in Smith , regarding future reviews of an inmate's custod y status, the decision

- maker "must consider all of the factors pertinent to [the inmate's] status in making its decision . . . ." 346 N.J. Super. at 32. T here is insufficient evidence in the two administrators' written decision that they
considered any o f the nine factors o ther than the "[f]ield account of the present offense, " N.J.A.C. 10A:9

- 4.5(a)(1)

. 4 "Field account" is not defined, but in connection with that factor, the administrators focused on the circumstances

3 They also said that the decision must be based on "internal management procedures as well as any potential safety and security risks." We question whether reliance on non

- p romulgated internal procedures would run afoul of the recent order in Smith , slip op. at 11

- 12, as well as Jenkins , 108 N.J. at 255 , and Metromedia, Inc. v. Dir., Div. of Taxation , 97 N.J. 313, 330 (1984). We note that safety and security considerations are already addressed in the existing regulation governing the ICC. N.J.A.C. 10A:9

- 4.5(a)(9).

4 The administrators also noted that they considered one of the twenty

- one factors, the "nature and circumstance of present offens e. " N.J.A.C. 10A:9

- 3.3(a)(11).10 A

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surrounding Ravenell's offense

. 5 No netheless, the administrators did not address other factors that are plainly relevant, including Ravenell's positive adjustment to prison life in recent years, see N.J.A.C. 10A:9

- 4.5(a)( 4); his favorable objective classification score of zero, see N.J.A.C. 10A:9

- 4.5(a)( 6); and the views

– pro or con

– of professional and custody staff, see N.J.A.C. 10A:9

- 4.5(7). Additional factors may have militated for or against reducing his custody status. Our requirement that the administrators and the ICC clearly state which factors they considered, and which factor(s) helped tip the scale in either direction, is no t rooted solely in formalism. Rather , i t is premised on the well

settled principle that an agency decision must clearly state it s reasoning and conclusion. Put another way, an agency must "show its work , " so that a reviewing court can understand how it came to its conclusion. See Balagun v. N.J. Dep't of Corr. , 361 N.J. Super. 199, 202

- 203 (App. Div. 2003) ("We cannot accept without question an agency's conclusory statements, even when they

5 Except for offenses specifically excluded, and Ravenell's offense is not one of them, see N.J.A.C. 10A:9

- 4.8, the administrator may not rely on the inmate's crime to permanently disqualify him or her from full minimum status. Smith , 346 N.J. Super. at 32. In particular, a 2006 Department memorandum advised administrators that a murder convic tion may not be used "as the sole reason for denial of full minimum."11 A

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represent an exercise in agency expertise. The agency is obliged

. . . to tell us why") (internal quota tion mark s and citations omitted). By stating only that
"circumstances

. . . indicate[] a blatant disreg ard for human life as well as an extreme level of violence," a reviewing court has no way to know whether the ICC and a dministrator considere d any of the other relevant factors in N.J.A. C. 10A:9

- 4.5(a) , and what weight they attributed to them. 6
Furthermor e, the administrators accepted a disputed version of the offense, purportedly set forth in the PSI report. 7 They concluded that Ravenell mercilessly and wantonly killed his robbery victim, who did not struggle or resist. In effect, the administrators ass umed that Ravenell committed purposeful murder, a charge that the State ultimately dismissed. However, a ccording to the PSI report, Ravenell "claim [ed] that he shot the victim because he was reaching for what the defendant believed to be a weapon. The de fendant claim [ed] he fired his weapon in self

- defense ."

6 We note that the Department used a form entitled "Final Approval for Reduced Custody FM Reason for 'No' Vote" that encourages an ICC member or administrator to identify a single reas on for denial, rather than address all "relevant factors" as N.J.A.C. 10A:9

- 4.5(a) requires.

7 T he copy of the PSI that the Department has included in the record before us does not include the details that the administrators attribute to it. We surmised that an attachment, incorporating the "offense circumstances" section, w as inadvertently omitted ; however , we have been assured nothing is missing

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A court may not rely on disputed material in a presentence report. State v. Hupka , 203 N.J. 222, 241 (2010) ; see also In re Kollman , 210 N.J. 557, 5 76 (2012) . If a defendant who pleads guilty denies factual allegations in a PSI report that fall outside his allocution, then the disputed facts must be omitted, or resolved based on cognizable evidence after a hearing. Hupka , 203 N.J. at 241; see also Kollman , 2 10 N.J. at 476

- 77. As the Chief Justice explained , " To the extent there is a material dispute [regarding details of offense to which defendant pled guilty], the judge should conduct an appropriate review of the facts

. . . and make relevant findings after a hearing. " Hupka , 203 N.J. at 250 (Rab ner, C.J., dissenting). We discern no reason that an administrative agency, utilizing a presentence report, should be subject to a different standard. Ravenell pleaded gui lty to felony murder, not purposeful murd er. H e disputed that his offense was as egregious as purportedly alleged in his PSI report. T he administrators were not free to rely on that unfavorable version of the crime. 8 In sum, we remand for reconsideration by the ICC of the correctional institution where Ravenell is now assigned. It shall consider all pertinent factors

8 Furthermore, Ravenell's allocution is not part of the record and there is no evidence that the administrator s relied upon it in characterizing the nature of Ravenell's crime.13 A

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set forth in the regulations, present its reasoning, and may not rely on disputed material in Ravenell 's PSI report absent a fact

- finding hearing. Remanded. The ICC shall issue a new decision within 30 days. Any subsequent review by the appropriate a dministrator and Central Office shall be completed within an additional 30 days thereafter. We retain j urisdiction.14 A

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# EXHIBIT15 A

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