NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5490-11T3
W.B., APPROVED FOR PUBLICATION Appellant, January 29, 2014 v. APPELLATE DIVISION NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent.
________________________________________________________________
Submitted October 1, 2013 – Decided January 29, 2014
Before Judges Espinosa, Koblitz and O'Connor.
On appeal from the New Jersey Department of Corrections.
W.B., appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Justin L. Conforti, Deputy Attorney General, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
In Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176
(App. Div. 2011), we considered whether the Commissioner's broad
authority to select the appropriate institution to house inmates, N.J.S.A. 30:4-91.2, is limited by the Sex Offender Act
(SOA), N.J.S.A. 2C:47-1 to -10. In deciding the appeal of an
inmate who challenged his transfer from the general prison
population to the Adult Diagnostic Treatment Center (ADTC), we
concluded that the Commissioner of the Department of Corrections
(DOC) lacked the discretion to transfer inmates to the ADTC who
did not meet the sentencing parameters of the SOA. Williams,
supra, 423 N.J. Super. at 186. W.B.'s appeal entails a
different challenge to the authority of the Commissioner
regarding assignment to the ADTC. Convicted as a sex offender
in New Hampshire, his custody was transferred to New Jersey
pursuant to the Interstate Corrections Compact (the Compact),
N.J.S.A. 30:7C-1 to -12;1 N.H. Rev. Stat. Ann. §§ 622-B:1 to -B:3
(2013), where he was assigned to the ADTC. Following Williams,
however, he was reassigned to a wing for inmates who were not
sentenced under the SOA and appealed that decision, arguing that
the Compact required that he be treated as an ADTC-eligible
offender. For the reasons that follow, we affirm.
1 As codified, the Compact "empowers New Jersey to enter into contracts with other states 'for the confinement of inmates on behalf of a sending state in institutions situated within receiving states.'" Van Wickle v. N.J. Dep't of Corr., 370 N.J. Super. 40, 45 (App. Div. 2004) (quoting N.J.S.A. 30:7C-4(a)).
2 A-5490-11T3 I.
In April 2009, W.B. pled guilty to aggravated felonious
sexual assault of a victim under the age of thirteen, and
aggravated felonious sexual assault, N.H. Rev. Stat. Ann. § 632-
A:2(II), for offenses committed against his granddaughter and
his daughter. He was sentenced to an aggregate prison term of
five to fifteen years and ordered to "participate meaningfully
and complete any counseling, treatment and educational programs
as directed by the correctional authority or Probation/Parole
Officer." The New Hampshire Department of Corrections Initial
Assessment Recommendations & Pre-release Plan Authorization Form
referred W.B. to the Sex Offender Treatment Program and included
the recommendation that W.B. needed "Sex Offender Evaluation &
Treatment as Directed," "Substance Abuse Eval. & Treatment as
Directed," and "Self-Help" as recommended by the court or the
New Hampshire Department of Corrections.
Due to a potential conflict of interest involving the
director of the New Hampshire Sex Offender Treatment Program,
New Hampshire's Deputy Compact Administrator made a request to
New Jersey to house W.B. pursuant to the Compact, noting that
W.B. "needs Sex Offender Treatment and we are requesting that he
do it while housed at your facility." The DOC approved the
transfer.
3 A-5490-11T3 W.B. was transferred to the custody of the DOC on January
13, 2010, and assigned to the ADTC. The ADTC is defined as "the
correctional facility designated to house persons who have been
sentenced pursuant to N.J.S.A. 2C:47-1 et seq. and 2A:164-1 et
seq.," N.J.A.C. 10A:1-2.2, and includes a Therapeutic Community
for sex offenders who have been found clinically eligible for
the specific treatment program under the SOA. W.B. was placed
in the Therapeutic Community with sex offenders found clinically
eligible under the SOA. However, because W.B. was sentenced
under New Hampshire's sex offender statute and not under the
SOA, he was classified as a Not Under the Act (NUA) inmate. DOC
has defined that term as one who is "not eligible for
specialized treatment under N.J.S.A. 2C:47-3(h)." See Williams,
supra, 423 N.J. Super. at 180.
Treatment updates for W.B. dated September 24, 2010,
February 3, 2011, July 7, 2011, January 25, 2012, and October
23, 2012, which include updates before and after our decision in
Williams, uniformly begin with a statement noting W.B. was not
sentenced under the SOA "and therefore is not mandated to
participate in the sex offender treatment program at the ADTC."
Despite the lack of a mandate, W.B. voluntarily and actively
participated in the One Wing Therapeutic Community, which was
described as "the most intense level of treatment offered." His
4 A-5490-11T3 progress in therapy was duly noted and, in February 2011, it was
recommended that he advance from a Level III group to Phase II
status.
Williams was decided in December 2011. In addition to
holding that the Commissioner lacked authority to assign NUA
inmates to the ADTC for treatment and housing with ADTC-eligible
inmates, Williams, supra, 423 N.J. Super. at 189, we ordered the
Commissioner to review the status of NUA inmates at the ADTC and
"take the steps necessary to ensure that only ADTC-eligible
offenders are incarcerated there, unless it is administratively
feasible to establish a separate program" for the non-ADTC-
eligible inmates at the ADTC. Ibid.
W.B. remained in the ADTC Therapeutic Community until April
4, 2012, when he was moved from a wing housing ADTC-sentenced
inmates participating in the Therapeutic Community, and
reassigned to a wing designated for NUA inmates. W.B. requested
that a psychological examination be conducted of him so that his
eligibility for sex-offender-specific treatment in the
Therapeutic Community might be reconsidered. His request was
denied on the ground that the requisite testing "could only be
completed in response to a court order or as a courtesy to the
[DOC], should they request it."
5 A-5490-11T3 In May 2012, W.B. filed an Inmate Remedy System Form,
challenging DOC's decision to classify him as an NUA inmate. He
stated,
Under the Interstate Compact, I am to be treated as if I had committed my offense in New Jersey. I am supposed to be participating in the same education and work programs as ADTC-sentenced inmates. It is the responsibility of the ADTC Administration to make available treatment programs consistent with my individual needs, as well as to ensure that my committing court's sentences and orders are faithfully executed.
In its response, the ADTC administration stated W.B.'s
"assertion that the Compact is being violated is unfounded,"
that his "current housing is appropriate," and that he would be
housed as NUA.2 The administration suggested that W.B. could
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5490-11T3
W.B., APPROVED FOR PUBLICATION Appellant, January 29, 2014 v. APPELLATE DIVISION NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent.
________________________________________________________________
Submitted October 1, 2013 – Decided January 29, 2014
Before Judges Espinosa, Koblitz and O'Connor.
On appeal from the New Jersey Department of Corrections.
W.B., appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Justin L. Conforti, Deputy Attorney General, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
In Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176
(App. Div. 2011), we considered whether the Commissioner's broad
authority to select the appropriate institution to house inmates, N.J.S.A. 30:4-91.2, is limited by the Sex Offender Act
(SOA), N.J.S.A. 2C:47-1 to -10. In deciding the appeal of an
inmate who challenged his transfer from the general prison
population to the Adult Diagnostic Treatment Center (ADTC), we
concluded that the Commissioner of the Department of Corrections
(DOC) lacked the discretion to transfer inmates to the ADTC who
did not meet the sentencing parameters of the SOA. Williams,
supra, 423 N.J. Super. at 186. W.B.'s appeal entails a
different challenge to the authority of the Commissioner
regarding assignment to the ADTC. Convicted as a sex offender
in New Hampshire, his custody was transferred to New Jersey
pursuant to the Interstate Corrections Compact (the Compact),
N.J.S.A. 30:7C-1 to -12;1 N.H. Rev. Stat. Ann. §§ 622-B:1 to -B:3
(2013), where he was assigned to the ADTC. Following Williams,
however, he was reassigned to a wing for inmates who were not
sentenced under the SOA and appealed that decision, arguing that
the Compact required that he be treated as an ADTC-eligible
offender. For the reasons that follow, we affirm.
1 As codified, the Compact "empowers New Jersey to enter into contracts with other states 'for the confinement of inmates on behalf of a sending state in institutions situated within receiving states.'" Van Wickle v. N.J. Dep't of Corr., 370 N.J. Super. 40, 45 (App. Div. 2004) (quoting N.J.S.A. 30:7C-4(a)).
2 A-5490-11T3 I.
In April 2009, W.B. pled guilty to aggravated felonious
sexual assault of a victim under the age of thirteen, and
aggravated felonious sexual assault, N.H. Rev. Stat. Ann. § 632-
A:2(II), for offenses committed against his granddaughter and
his daughter. He was sentenced to an aggregate prison term of
five to fifteen years and ordered to "participate meaningfully
and complete any counseling, treatment and educational programs
as directed by the correctional authority or Probation/Parole
Officer." The New Hampshire Department of Corrections Initial
Assessment Recommendations & Pre-release Plan Authorization Form
referred W.B. to the Sex Offender Treatment Program and included
the recommendation that W.B. needed "Sex Offender Evaluation &
Treatment as Directed," "Substance Abuse Eval. & Treatment as
Directed," and "Self-Help" as recommended by the court or the
New Hampshire Department of Corrections.
Due to a potential conflict of interest involving the
director of the New Hampshire Sex Offender Treatment Program,
New Hampshire's Deputy Compact Administrator made a request to
New Jersey to house W.B. pursuant to the Compact, noting that
W.B. "needs Sex Offender Treatment and we are requesting that he
do it while housed at your facility." The DOC approved the
transfer.
3 A-5490-11T3 W.B. was transferred to the custody of the DOC on January
13, 2010, and assigned to the ADTC. The ADTC is defined as "the
correctional facility designated to house persons who have been
sentenced pursuant to N.J.S.A. 2C:47-1 et seq. and 2A:164-1 et
seq.," N.J.A.C. 10A:1-2.2, and includes a Therapeutic Community
for sex offenders who have been found clinically eligible for
the specific treatment program under the SOA. W.B. was placed
in the Therapeutic Community with sex offenders found clinically
eligible under the SOA. However, because W.B. was sentenced
under New Hampshire's sex offender statute and not under the
SOA, he was classified as a Not Under the Act (NUA) inmate. DOC
has defined that term as one who is "not eligible for
specialized treatment under N.J.S.A. 2C:47-3(h)." See Williams,
supra, 423 N.J. Super. at 180.
Treatment updates for W.B. dated September 24, 2010,
February 3, 2011, July 7, 2011, January 25, 2012, and October
23, 2012, which include updates before and after our decision in
Williams, uniformly begin with a statement noting W.B. was not
sentenced under the SOA "and therefore is not mandated to
participate in the sex offender treatment program at the ADTC."
Despite the lack of a mandate, W.B. voluntarily and actively
participated in the One Wing Therapeutic Community, which was
described as "the most intense level of treatment offered." His
4 A-5490-11T3 progress in therapy was duly noted and, in February 2011, it was
recommended that he advance from a Level III group to Phase II
status.
Williams was decided in December 2011. In addition to
holding that the Commissioner lacked authority to assign NUA
inmates to the ADTC for treatment and housing with ADTC-eligible
inmates, Williams, supra, 423 N.J. Super. at 189, we ordered the
Commissioner to review the status of NUA inmates at the ADTC and
"take the steps necessary to ensure that only ADTC-eligible
offenders are incarcerated there, unless it is administratively
feasible to establish a separate program" for the non-ADTC-
eligible inmates at the ADTC. Ibid.
W.B. remained in the ADTC Therapeutic Community until April
4, 2012, when he was moved from a wing housing ADTC-sentenced
inmates participating in the Therapeutic Community, and
reassigned to a wing designated for NUA inmates. W.B. requested
that a psychological examination be conducted of him so that his
eligibility for sex-offender-specific treatment in the
Therapeutic Community might be reconsidered. His request was
denied on the ground that the requisite testing "could only be
completed in response to a court order or as a courtesy to the
[DOC], should they request it."
5 A-5490-11T3 In May 2012, W.B. filed an Inmate Remedy System Form,
challenging DOC's decision to classify him as an NUA inmate. He
stated,
Under the Interstate Compact, I am to be treated as if I had committed my offense in New Jersey. I am supposed to be participating in the same education and work programs as ADTC-sentenced inmates. It is the responsibility of the ADTC Administration to make available treatment programs consistent with my individual needs, as well as to ensure that my committing court's sentences and orders are faithfully executed.
In its response, the ADTC administration stated W.B.'s
"assertion that the Compact is being violated is unfounded,"
that his "current housing is appropriate," and that he would be
housed as NUA.2 The administration suggested that W.B. could
write to the Interstate Services at the Central Office regarding
the provisions of the Compact.
The treatment update dated October 23, 2012 reported that,
after W.B. was reassigned to a group for NUA inmates in April
2012, he participated in sex offender treatment. The update
provided a review of that treatment for the period from June 25
2 W.B. submitted a similar complaint by another inmate transferred to the ADTC under the Compact with a response from the ADTC that allegedly contradicted the response to his Inmate Remedy System Form. However, conflicting statements within that response preclude any determination as to whether the response was contradictory.
6 A-5490-11T3 through October 23, 2012, and identified his treatment goals for
the next six months.
W.B. appealed from the administrator's decision. After
that decision was upheld, he filed an appeal from the final
agency decision and presents the following issues for our
consideration:
POINT I
THE WILLIAMS RULING DID NOT DISCUSS HOW THE RULING SHOULD APPLY TO OUT-OF-STATE TRANSFERS, AND IS BEING APPLIED IMPROPERLY TO TRANSFERRED INMATES.
POINT II
THE DEPARTMENT'S DECISION TO APPLY WILLIAMS TO OUT-OF-STATE INMATES VIOLATES THE INTERSTATE COMPACT.
POINT III
APPELLANT HAS A LIBERTY INTEREST ATTACHED TO BEING OFFERED THE SAME SEX OFFENDER TREATMENT PROGRAM BEING OFFERED TO NEW JERSEY INMATES SENTENCED UNDER THE NEW JERSEY SEX OFFENDER ACT.
"The judicial capacity to review administrative agency
decisions is limited." Brady v. Bd. of Review, 152 N.J. 197,
210 (1997). An appellate court can reverse only if the agency's
decision was "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); Brady, supra, 152 N.J. at 210. "[I]nterpretations of
7 A-5490-11T3 the statute and cognate enactments by agencies empowered to
enforce them are given substantial deference. . . ." Williams,
supra, 423 N.J. Super. at 182-83; (quoting Klumb v. Bd. of Educ.
of the Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14,
24 (2009)). However, an agency's interpretations "'cannot alter
the terms of a legislative enactment nor can they frustrate the
policy embodied in [a] statute.'" Williams, supra, 423 N.J.
Super. at 183 (alteration in original) (citations omitted).
Furthermore, "[a]n appellate tribunal is . . . in no way bound
by the agency's interpretation of a statute or its determination
of a strictly legal issue." Mayflower Sec. Co. v. Bureau of
Sec., 64 N.J. 85, 93 (1973); see also Shim v. Rutgers, 191 N.J.
374, 384 (2007).
II.
It is evident that the DOC's decision to move W.B. from the
wing designated for ADTC inmates was prompted by our decision in
Williams. Although we did not explicitly address the
circumstances of an out-of-state sex offender who has been
transferred to the custody of the DOC, our reasoning for the
limitations upon the Commissioner's discretion to assign inmates
to the ADTC remains applicable.
As we observed in Williams, the SOA "created a detailed
sentencing program for certain types of sex offenders." 423
8 A-5490-11T3 N.J. Super. at 178. Although we recognized the broad discretion
and authority of the Commissioner to "designate as a place of
confinement any available, suitable, and appropriate institution
or facility" for an inmate and to transfer the inmate "at any
time," id. at 181, we nonetheless found ourselves "constrained"
to apply the legislatively mandated restrictions on the
Commissioner's discretion and authority imposed by the specific
language of the SOA. The program created by the legislature
permits the confinement of an offender at the ADTC only if
specific criteria are met: (1) the offender must be convicted of
one of the SOA's enumerated offenses; (2) there must be a
finding, following a psychological examination, that "the
offender's conduct was characterized by a pattern of repetitive,
compulsive behavior"; (3) the offender must be both amendable to
sex offender treatment and willing to participate in such
treatment; and (4) following review, a judge must confirm the
requisite findings. N.J.S.A. 2C:47-1; N.J.S.A. 2C:47-3(a).
In In re Civil Commitment of W.X.C., 204 N.J. 179 (2010),
cert. denied, __ U.S. __, 131 S. Ct. 1702, 179 L. Ed. 2d. 635
(2011), the Supreme Court compared the scope of the Sexually
Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38 with
that of the SOA, noting that the Legislature used "far narrower"
defining statutory language in the SOA. W.X.C., supra, 204 N.J.
9 A-5490-11T3 at 199. The Court found that, "[a]s defined by statute, ADTC
treatment . . . is directed only at specific offenders" and
further, that the treatment "is particularized and is designed
to meet the needs of the specific population of sex offenders
that it intentionally targets." Id. at 198. The Court
described the Legislature's purpose and the practical
considerations that influenced its reasoning:
[W]hen creating the ADTC, the Legislature intentionally designed a program that could most effectively target a particular population that available treatment modalities could benefit. In that context, making certain that the offenders admitted into the program are only those who meet the statute's diagnostic criteria is a critical ingredient in the program's success. More to the point, the program operates with limited numbers of beds, for clinically significant reasons, and highly trained, but limited, numbers of personnel, with the result that it is not appropriate to expand it to offenders . . . who do not meet the admission criteria.
[Id. at 199 (emphasis added).]
From the outset, W.B. was identified as an NUA inmate who
had not been sentenced under the Act. Although W.B. pled guilty
to offenses comparable to those enumerated in the SOA and has
manifested his amenability and willingness to participate in sex
offender treatment at the ADTC, he was not sentenced pursuant to
the detailed sentencing program that required both a
psychological determination and judicial confirmation, following
10 A-5490-11T3 review, that he satisfied the statutory criteria. The
legislative purpose in limiting ADTC treatment to a carefully
targeted population of offenders, a "critical ingredient in the
program's success," ibid., applies equally to a potential
expansion of the ADTC program to him. As we have noted, the DOC
has implemented a program of sex offender treatment for NUA
offenders in which W.B. has participated. Particularly in light
of our decision in Williams, it was not arbitrary, capricious,
or unreasonable for the Commissioner to classify W.B. as an NUA
inmate and designate his confinement accordingly.
III.
We next consider W.B.'s argument that the Compact and the
Contract for Services between the State of New Hampshire and the
State of New Jersey for the Implementation of the Interstate
Corrections Compact (the Contract) both require the DOC to treat
him as an ADTC-eligible offender. He contends that the failure
to provide him with treatment provided to ADTC-eligible
offenders effectively alters his sentence, in violation of the
Compact. He also argues that the Compact requires New Jersey to
treat him as if he committed his offenses in New Jersey. We
disagree with each of these propositions.
N.J.S.A. 30:7C-5(e) provides, in pertinent part, "All
inmates who may be confined in an institution pursuant to the
11 A-5490-11T3 provisions of this compact shall be treated in a reasonable and
humane manner and shall be treated equally with such similar
inmates of the receiving state as may be confined in the same
institution." (Emphasis added). Similarly, the Contract
requires the receiving state "to make available to [transferred
inmates] the programs of training and treatment which are
consistent with their individual needs." However, Paragraph 12
of the Contract limits the scope of the obligation, stating,
Nothing herein contained shall be construed to require the receiving state or any of its institutions to provide treatment, facilities, or programs for any inmate confined pursuant to the Interstate Corrections Compact which it does not provide for similar inmates of the receiving state.
The thrust of W.B.'s argument is that the "similar inmates
of the receiving state" with whom he is on par are the ADTC-
eligible offenders. As we have noted, although W.B. shares some
of the attributes of ADTC-eligible offenders, he does not meet
all the criteria established by the Legislature as prerequisites
to ADTC status. Therefore, just as the DOC identified him at
the outset, W.B. is similarly situated to the NUA offenders
housed separately at the ADTC. We therefore conclude that no
violation of the Compact has occurred by virtue of a failure to
treat him equally with similar inmates in New Jersey.
12 A-5490-11T3 W.B. was sentenced under New Hampshire's statutes, which
govern "any matter relating to an inmate confined pursuant to"
the Contract. See also N.J.S.A. 30:7C-5(c). He has identified
no New Hampshire statute analogous to the SOA in terms of its
specific and detailed sentencing program that would require New
Jersey to afford him the treatment explicitly provided to
offenders who satisfy the SOA criteria. Moreover, the actions
of the DOC here did not derogate the sentence imposed upon him,
which ordered him to "participate meaningfully and complete any
counseling, treatment and educational programs as directed by
the correctional authority or Probation/Parole Officer." Thus,
the nature of sex offender treatment W.B. was to receive in New
Hampshire as part of his sentence was to be determined by the
correctional authority, not mandated by either a New Hampshire
statute or the sentence imposed. The New Hampshire Department
of Corrections referred him to its Sex Offender Treatment
program. However, W.B. has not identified any recommended
treatment that has not been provided to him in New Jersey.
Further, although not dispositive to our analysis, we note
that the New Hampshire Department of Corrections rebuffed W.B.'s
complaint that he was being denied treatment due him pursuant to
the Compact. In a letter to W.B. dated June 27, 2012, the New
13 A-5490-11T3 Hampshire Department of Corrections Administrator of
Classification stated:
It is our understanding that you are still being afforded the opportunity to participate in Sex Offender Programming. That is the word we have received from New Jersey. Although you may be housed separately due to recent litigation it has not affected your ability to continue programming. New Jersey is aware that you are required by New Hampshire to participate and satisfactorily complete Sex Offender Programming. They have received all pertinent information regarding you and your sentence and requirements prior to you going there.
In sum, we are satisfied that the Commissioner's actions
here did not violate the Compact or the Contract.
IV.
Finally, W.B. argues that the disparity between the
treatment he receives as an NUA inmate and that afforded ADTC-
eligible offenders deprives him of a fundamental liberty
interest and the equal protection of the laws. This argument
lacks sufficient merit to warrant discussion in a written
opinion, R. 2:11-3(e)(1)(E).
Affirmed.
14 A-5490-11T3