Opinion
DOCKET NO. A-4761-13T2
10-16-2015
CARMELLO PANTIAGUA, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Carmello Pantiagua, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Randy Miller, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Higbee. On appeal from the New Jersey Department of Corrections. Carmello Pantiagua, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Randy Miller, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Appellant Carmello Pantiagua ("appellant" henceforth) appeals from a final agency decision of the New Jersey Department of Corrections (DOC) upholding an adjudication imposing disciplinary sanctions. We affirm.
Appellant spelled his name "Pantiagua" on the Notice of Appeal. However, he spelled it as "Patioungua" on his appellate brief, and that spelling is used in many DOC documents in the record, including the final agency decision.
I.
Appellant was convicted of murder. He is incarcerated at a New Jersey State Prison in Trenton (NJSP). He is currently serving a forty-five-year sentence, with a thirty-eight years and three months of parole ineligibility.
In 2012, the Special Investigations Division (SID) began a long-term investigation into a conspiracy involving numerous inmates to obtain contraband, including narcotics and tobacco, using bribed prison staff and a money laundering operation. As the result of the investigation, the NJSP issued disciplinary reports alleging appellant distributed narcotics on numerous occasions. The reports also alleged appellant conspired with other inmates and civilians to bribe corrections officers, to receive the proceeds of this criminal activity, and to conceal the monetary transactions made to cover debts associated with acquiring narcotics and bribing corrections officers. The SID relied on the statements of five confidential witnesses, as well as evidence of money laundering via money orders deposited to appellant's inmate trust fund.
On April 5, 2014, appellant was served with multiple administrative disciplinary charges. Appellant made requests for legal assistance. An inmate paralegal was appointed as counsel substitute. A disciplinary hearing was held on April 23, 2014. The individual adjudication report for each charge stated that appellant declines to enter a plea for any of the charges, that he did not wish to make a statement, and that he neither presented nor requested to confront any witnesses.
The DHO found appellant guilty of the following charges under N.J.A.C. 10A:4-4.1(a): *.215 - possession with intent to distribute or sell prohibited substances such as drugs, intoxicants or related paraphernalia; *.216 - distribution or sale of prohibited substances; *.803/*.306 - attempt to disrupt or interfere with security or orderly running of the correctional facility; three counts of *.803/.*704 - conspiracy to perpetrate a fraud, deception, confidence game, riot, or escape plot; and *.803/*.751 - conspiracy to bribe a staff member.
The DHO modified this charge from a straight *.306 charge.
The DHO applied this "more appropriate charge" rather than the original charge of *.803/*.207- conspiracy to possess money or currency in excess of $50.00 unless specifically authorized.
Appellant was also charged, but found not guilty of, the following offenses under N.J.A.C. 10A:4-4.1(a): *.006-extortion, blackmail, protection: demanding or receiving favors, money, or anything of value in return for protection against others, to avoid bodily harm, or under threat of informing; another count of *.215 - possession with intent to distribute or sell prohibited substances; *.803/*.216 - attempting to distribute or sell prohibited substances such as drugs; and two counts of *.803/*.751 - attempting to give or offer any official or staff member a bribe or anything of value.
For possession with intent to distribute prohibited substances, appellant was sanctioned with 10 days in detention, 365 days in administrative segregation, and 365 days' loss of commutation time. He received the same sanction for each of the following offenses: distribution of prohibited substances; attempt to disrupt or interfere with the security or orderly running of the correctional facility; and conspiracy to bribe a staff member. Each of those sanctions was imposed consecutively. For his three counts of attempting to perpetrate a fraud or deception, he was sanctioned with 10 days in detention, and confiscation of $200, $400, and $600, for a total of $1200.
That same day, appellant filed an administrative appeal of the disciplinary decision. On May 14, 2014, the NJSP's Assistant Superintendent upheld the decision, finding that "there was compliance with procedural safeguards," and that the "evidence presented, support[ed] the hearing officer's decision."
Appellant appeals, raising the following arguments:
POINT I: THE APPELLANT WAS NOT AFFORDED HIS DUE PROCESS RIGHT TO A PROPER HEARING AS STATED IN AVANT V. CLIFFORD, 67 N.J. 496, 525-30, 341 A.2d 629 (1975).
POINT II: APPELLANT WAS DENIED EFFECTIVE REPRESENTATION BY COUNSEL SUBSTITUTE.
POINT III: THE DECISION TO CONFISCATE MONEY FROM APPELLANT STATING THAT NAMES AND/OR ADDRESSES ARE FICTIOUS [SIC] CONCERNING THE MONEY SENT TO MS. HAROLD.
POINT IV: THE DECISION OF THE HEARING OFFICER WAS NOT BASED ON SUBSTANTIAL EVIDENCE.
II.
Appellant's first two arguments allege violation of his procedural rights. Our Supreme Court has explained that while inmates are not stripped of their due process rights, there is a relevant distinction in the extent of due process inmates must be afforded. "'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 explained what due process rights 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, 196-99 (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 Securities v. Bureau of Securities, 64 N.J. 85, 93 (1973)). We must hew to our standard of review.
A.
Appellant first argues that he did not receive a proper hearing, as defined in Avant, supra, 67 N.J. at 525-30. Under Avant, inmates must receive: (1) written notice of the charges at least twenty-four hours before the hearing; (2) an impartial tribunal, which may be a superior officer from the central prison staff; (3) a limited right of the inmate to call witnesses and present documentary evidence; (4) a limited right to confront and cross-examine adverse witnesses in appropriate cases; (5) a written statement of the evidence relied upon and the reasons for the sanctions imposed; and (6) a limited right to the assistance of counsel substitute. Id. at 525-39; see N.J.A.C. 10A:4-9.1 to -9.28; McDonald, supra, 139 N.J. 188 at 194-95. We are satisfied that appellant received all these rights, and that appellant's administrative adjudication complied with his right to a fair hearing under Avant.
Generally, "[a]n inmate shall be permitted to be present throughout the disciplinary hearing." N.J.A.C. 10A:4-9.10(a). However, appellant asserts that he "was not present as shown by the [absence of his] signature on the adjudication forms." However, the adjudication reports indicated that he was in fact present as generally required under N.J.A.C. 10A:4-9.10(a). The reports stated that appellant was advised of certain rights by the DHO, and was asked if he wanted to make a statement, to request a witness, or to confront any adverse witness. Moreover, the adjudication reports permit either the "inmate or counsel substitute" to sign. Though the adjudication reports do not contain appellant's signature, his counsel substitute signed each form acknowledging that the information accurately reflected what took place at the hearing.
Further, if appellant had been absent from the hearing, the DHO was required to document his absence and reason for his absence. "The reasons for excluding an inmate from the disciplinary hearing must be well documented in the record." N.J.A.C. 10A:4-9.10(b). If an inmate refuses to attend the hearing, the DHO is required to conduct an "in absentia hearing," which requires the escorting custody staff member to report the inmate's refusal and have the inmate sign a refusal notice. N.J.A.C. 10A:4-9.11(a), (b). If the inmate refuses to sign, the DHO is required to make a notation in the adjudication report. Ibid. Here, there is nothing in the adjudication report that indicates appellant did not attend his hearing. See N.J.R.E. 803(c)(10) (allowing admission of proof of the absence of entries in public records). Accordingly, we reject appellant's argument that he did not attend his hearing.
B.
In his second procedural argument, appellant alleges that he did not receive effective representation by his counsel substitute. Inmates like appellant who are charged with "asterisk offenses" have the right to "request representation by a counsel substitute." N.J.A.C. 10A:4-9.12(a). "'Counsel substitute' means an individual, such as an inmate paralegal, teacher or social worker, who represents and defends an inmate at a disciplinary hearing proceeding that is conducted within a correctional facility under the jurisdiction of the Department of Corrections." N.J.A.C. 10A:1-2.2. Here, appellant received an inmate paralegal. All inmate paralegals receive some legal training pursuant to N.J.A.C. 10A:6-2.13.
However, inmate paralegals and counsel substitutes are not attorneys. See Avant, supra, 67 N.J. at 529, 537. They are not held to the same standards as attorneys. Instead, an inmate facing certain disciplinary charges is simply entitled to a counsel substitute who is "sufficiently competent" to provide assistance if the inmate is illiterate "or where the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case." Wolff, supra, 418 U.S. at 570, 94 S. Ct. at 2982, 41 L. Ed. 2d at 959; accord Avant, supra, 67 N.J. at 529.
There is no indication that appellant was not provided a counsel substitute that was "sufficiently competent" to provide such assistance. Avant, supra, 67 N.J. at 529.
Indeed, the record reflects that the inmate paralegal attended appellant's hearing. The inmate paralegal consented on appellant's behalf to the substitutions of more appropriate charges. The inmate paralegal requested leniency on his behalf. The inmate paralegal also signed off on the adjudication report to acknowledge the accuracy of the proceedings. In addition, according to appellant, the inmate paralegal helped appellant file a timely administrative appeal and provided appellant with documents. In his administrative appeal, appellant did not make any argument about failing to receive any assistance from his inmate paralegal.
Furthermore, even assuming that an inmate can claim he did not receive "the effective assistance of counsel-substitute," Sheika v. NJDOC, 395 N.J. Super. 266, 276 (App. Div. 2007), appellant has failed to make out such a claim.
Appellant argues that his inmate paralegal never met with him to discuss charges or the evidence presented against him. However, there is nothing in the record to support the claim that he never met with the counsel substitute. Given that appellant requested a counsel substitute at least ten days before the hearing, it appears there was ample opportunity for such discussion.
Appellant also contends that the inmate paralegal failed to assert his right to confront his accusers. However, the adjudication report reflects that when asked what adverse witnesses appellant requested to confront and cross-examine, "none [were] requested." See N.J.A.C. 10A:4-9.14. Moreover, as set forth above, appellant was offered the opportunity to make a statement and call witnesses but declined to do so.
For these reasons, we reject appellant's claim that counsel substitute deprived him of the opportunity to put forward a defense.
III.
Next, appellant contends that his money was wrongly confiscated, because he received it through proper channels, via the U.S. Postal Service, from his mother Ms. Harold, who was his emergency contact. However, an inmate who commits "any offense preceded by an asterisk (*)" may be sanctioned with "[c]onfiscation." N.J.A.C. 10A:4-5.1(a)(8). If a DHO concludes that money, checks, or currency have "been acquired through improper means," the DHO can recommend that they be forfeited. N.J.A.C. 10A:3-6.6(a)(3). Here, the DHO found that defendant purchased and sold prohibited substances, and perpetrated a fraud or deception with regard to the money. These findings were based on confidential witnesses who "confirm[ed] that monies were sent to addresses, provided by [appellant], as payment for the illegal contraband," and that "after being laundered by the street-to-street transactions, . . . the money was returned to [appellant] and his coconspirators." Thus, there was substantial credible evidence in the record showing appellant received the funds through improper means.
IV.
Lastly, we address appellant's argument that the adjudication was not supported by substantial evidence. DOC regulations require that "[a] finding of guilt at a disciplinary hearing shall be based upon 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); Avant, supra, 67 N.J. at 530. "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa, supra, 414 N.J. Super. at 192 (citation omitted).
The DHO considered staff reports indicating that appellant possessed narcotics with the intent to distribute them, and that he "engaged in a pattern of illegal conduct designed to conceal monetary transactions[,] which were made to cover debts associated with acquiring narcotics and bribing sworn officers." In addition, the staff reported appellant was involved with a corrupt officer who smuggled contraband that appellant would sell to other inmates.
The DHO also considered information from five confidential informants. They confirmed that appellant was involved with the smuggling and distribution of narcotics and tobacco. They also confirmed that appellant devised a system to launder the money he received in payment for the contraband. They said that appellant provided addresses to which inmates sent their money, and that he would then have that money returned to him and his co-conspirators in prison to pay for the illegal contraband. Furthermore, the confidential informants confirmed that money was also paid to the corrupt officer.
A prison disciplinary adjudication may be based on confidential information. N.J.A.C. 10A:4-9.15(b)(1). While the specifics of the confidential evidence was withheld from appellant, to protect the ongoing criminal investigation and to avoid retaliation against witnesses, the DHO provided appellant a list of the confidential documents and a summary of the confidential evidence pursuant to N.J.A.C. 10A:4-5.15(b)(1). --------
Lastly, the DHO relied on appellant's trust account statements, copies of money orders that he received, and letters found in his cell. This documentary evidence confirmed the statements made by the staff and confidential informants. For example, the DHO found one letter made "several references to obtaining and distributing narcotics within the prison[,] as well as references to the transporter and the payments to the transporter for smuggling contraband." That letter also confirmed appellant's involvement with the corrupt officer and the smuggling of illegal contraband. The DHO found that the money orders had been sent using fictitious names and addresses, in an attempt to launder the profits from the illegal operation.
Appellant asserts that the "confidential informants were not credible which is portrayed by the adjudication forms." Appellant apparently refers to the DHO's failure to check the "yes" or "no" box regarding whether the DHO "conclude[d] that the informant was credible and/or the information was reliable." However, in the DHO's summary of the evidence on which he relied in reaching his decision of guilt, he stated that the "DHO relies on the confidential evidence." Indeed, the DHO stressed that the "[inmate's] trust account statement and copies of money orders that were received by [appellant] confirm[ed] the statements made by the multiple confidential witnesses."
We find that the information provided by the confidential informants and staff, and the documentation found confirming their information, provided substantial credible evidence of appellant's guilt. Avant, supra, 67 N.J. at 530.
We find appellant's remaining argument 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