On appeal from a Final Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2008
Before Judges Lintner and Sabatino.
William VanName, an inmate currently confined at Southern States Correctional Facility, appeals from a determination of the Department of Corrections (Department), finding him guilty of committing prohibited act *.205 (misuse of authorized medication), N.J.A.C. 10A:4-4.1(a). The Department imposed a sanction of 15 days detention, 180 days administrative segregation suspended for 60 days, and 60 days loss of commutation time.
On February 16, 2006, VanName requested additional medication, specifically, a muscle relaxant, Robaxin and Tylenol. The nurse checked VanName's medical records, which showed that he was to take two Robaxin pills three times daily. The nurse then performed a spot check and found that VanName had six pills remaining from the thirty pills he had previously received, when he should have had fourteen. When the nurse inquired about the missing pills, VanName stated, "I take two pills three times a day, maybe more."
VanName was consequently charged with violating *.205 and was provided counsel substitute. VanName signed two written statements. In the first, dated February 17, 2006, he stated, "I have . . . taken medication as prescribed I [believe] I have extra of all my . . . [RXs]." In a second statement, he stated, "I have to admit [I] must [have] taken one extra dose sometime on the 14th or 15th by mistake." He pled guilty at the hearing held on February 20, 2006. Counsel substitute argued that VanName misunderstood the dosage and did not intend to misuse his medication. He declined his right of confrontation.
Noting that VanName's statements were inconsistent, the hearing officer found him guilty of the infraction and imposed 15 days detention, with credit for time served, 180 days loss of commutation credit and 180 days of administrative segregation, suspended for 60 days. On administrative appeal, VanName sought leniency. The Associate Administrator modified the 180 days of lost commutation to 60 days. He upheld the detention and administrative segregation penalties imposed by the hearing officer.
VanName requested a new hearing, claiming that he was not guilty and that his counsel substitute knew nothing of the case. He asserted that his counsel substitute entered a guilty plea for him and filed an appeal, without his consent to either. He maintained that the nurse was mistaken and that he had not authored the written statement attributed to him. The Associate Administrator denied VanName's request, indicating that VanName had not provided him with any new information beyond the documentation that had been presented on the Administrative Appeal.
On appeal, VanName argues that his counsel substitute entered his guilty plea without notifying him or getting his authorization and that his administrative appeal was submitted without his knowledge or permission. He also asserts for the first time that he had removed pills so that he could remember to take them that evening and that the Associate Administrator failed to acknowledge that new information. Finally, he contends that he received ineffective assistance of counsel substitute who failed to seek a confrontation hearing.
"Normally, we decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . ." Monek v. Borough of South River, 354 N.J. Super. 442, 456 (App. Div. 2002). Exceptions include when "the issue is of special significance to the litigant, to the public, or to the achievement of substantial justice, and the record is sufficiently complete to permit its adjudication." Borough of Keyport v. Maropakis, 332 N.J. Super. 210, 216 (App. Div. 2000). Another exception is when the questions "'raised on appeal go to the jurisdiction of the trial court.'" Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 501 (App. Div.) (quoting Skripek v. Bergamo, 200 N.J. Super. 620, 629 (App. Div.), certif. denied, 102 N.J. 303 (1985)), certif. denied, 162 N.J. 131 (1999). None of those exceptions apply here.
Moreover, VanName's contentions lack merit. He was present when his guilty plea was entered. He did not seek to retract it or indicate to the hearing officers that counsel substitute lacked authority. Beyond that, in his response to the nurse and in one of his written statements, he admitted that he had taken extra medication. At the hearing, he declined calling any witnesses and the opportunity to confront the adverse witness. His claims raised here for the first time lack sufficient documentation and factual support for further consideration and are without sufficient merit to warrant further comment. R. 2:11-3(e)(1)(D) and (E).
The decision of the Department is supported by substantial credible evidence in the administrative record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We are satisfied, from our review of the record, that VanName was accorded the appropriate safeguards and protections during the ...