December 28, 2009
DAVID BATTLE, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Lisa and Baxter.
This is an appeal from an August 13, 2008 final agency decision of the New Jersey Department of Corrections (DOC), in which DOC imposed disciplinary sanctions upon David Battle, an inmate at New Jersey State Prison in Trenton, for committing an act prohibited by N.J.A.C. 10A:4-4.1(a). In particular, on June 18, 2008, the hearing officer found Battle guilty of *.009, possession of an unauthorized cell phone. The hearing officer imposed a sanction of fifteen days detention, 365 days loss of commutation credits, 365 days of administrative segregation and 365 days loss of telephone privileges.
On appeal, Battle maintains that because he had been found guilty of a different *.009 infraction a month earlier, on May 25, 2008, which involved unauthorized possession of a cell phone charger, he should have received a concurrent sentence when he was found guilty of possession of the cell phone in June. He also maintains that the discipline imposed on him on June 18, 2008 should be vacated because counsel substitute rendered ineffective assistance. We reject those contentions and affirm.
We first describe the May 18, 2008 infraction. The facts are not disputed.*fn1 Battle was observed inserting what appeared to be contraband into his rectal area while in a visitors area. He was immediately escorted from the visitors hall and strip searched, at which time an unknown object was visible. He was ordered several times to remove the object, but refused to comply. When corrections officers removed and unwrapped the object, they determined that it was a cell phone charger.
As a result, Battle was charged the next day and found guilty on May 25, 2008 of.256, refusing to obey an order of a staff member; *.708, refusing to submit to a search; and *.009, unauthorized possession of an electronic device. The hearing officer ordered that the sentences imposed on the.256 and *.708 infractions run concurrent to the *.009 infraction. The hearing officer sentenced Battle to 15 days detention, 365 days loss of commutation time, 365 days of administrative segregation and 365 days loss of phone privileges.
After Battle was charged on May 18, 2008, and removed from his cell, corrections officers apparently continued to search his cell looking for the cell phone, but were unable to find it; however, the special investigations division sent all of Battle's property to the designated property officer, who found the cell phone hidden inside a jar.
Once the cell phone was found, DOC filed another *.009 charge against Battle, this time charging him with unauthorized possession of the cell phone. At the June 18, 2008 hearing, Battle apparently did not present or confront any witnesses. Instead, he argued that the two charges should be merged for sentencing purposes. He also argued that because the cell phone was not found by corrections officers in their initial search in May, the finding of the cell phone later was "suspect."
On appeal, the administrator rejected Battle's contentions, concluding that the guilty finding on June 18, 2008 was supported by substantial credible evidence. The administrator also rejected Battle's request for concurrent sentencing, reasoning that "[t]he two devices were found on separate occasions and in separate places, thus making them individual charges." Last, the administrator rejected Battle's suggestion that because the cell phone was not found in the initial search, the finding of it later was suspicious. The administrator reasoned that the cell phone "was hidden very well and was discovered by an Officer in the property room during a subsequent search."
On appeal, Battle maintains that "the original charges stemming from the incident with the cell phone charger and the final charges stemming from the cell phone should have been merged." He maintains that "although each item was found at different times, the investigation of finding the cell phone was a continuous [sic] from the charger."
Courts should intervene when arbitrary and capricious action by prison officials results in "unwarranted loss of privileges or the imposition of unduly harsh" sanctions. Avant v. Clifford, 67 N.J. 496, 533 (1975). But when the punishment is within the range authorized by the Department's regulations, courts generally defer to the exercise of discretion by those who are responsible for maintaining order in our prisons. See Negron v. N.J. Dep't of Corr., 220 N.J. Super. 425, 431 (App. Div. 1987). Here, the sanctions imposed for each *.009 infraction were within the authorized range established by N.J.A.C. 10A:4-5.1(a) and (e). Another section, N.J.A.C. 10A:4-5.3(a), imposes limitations on DOC's ability to impose consecutive sentences by establishing a thirty-day maximum for time to be served in disciplinary detention when more than one infraction is involved. Because the two consecutive sentences that were imposed resulted in an aggregate total of thirty days detention, the provisions of N.J.A.C. 10A:4-5.3 are not violated.
Battle's claim that he was entitled to be sentenced concurrently is premised on his assertion that because the two prohibited items were found during one "continuous search," only one sentence should have been imposed. We disagree. His charges were not based on a single incident. The charges in question were not filed within hours or days of each other, but were instead filed one month apart. Thus, these were two separate incidents, each involving its own search and each involving a separate expenditure of time and resources by institutional staff. The record supports DOC's conclusion that the two devices "were found on separate occasions and in separate places, thus making them individual charges." The charger was found as a result of a body search in May 2008. The cell phone was not found until one month later during a separate search of Battle's property after it was removed by the special investigations division for a more exhaustive search by the specially-designated property officer. We have no occasion to quarrel with DOC's conclusion that, under the circumstances presented, separate and consecutive sanctions were warranted.
Next, Battle maintains that the counsel substitute who was assigned to represent him rendered ineffective assistance because he failed to effectively press the issue of merger or concurrent sentences. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say, counsel substitute pressed Battle's claim that he was entitled to a concurrent sentence, but the hearing officer, and later the prison administrator, rejected it.