                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although 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. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4221-17T3

GREGORY RAVENELL,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

                   Submitted October 29, 2019 – Decided December 3, 2019

                   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
      Almost twenty-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 that status, he could work outside the main prison with minimal

supervision. N.J.A.C. 10A:9-4.3(e). He could also apply 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, 124-25 (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 Ravenell's 1991 crime "indicate[] a blatant disregard for human life as well

as an extreme level of violence." Ravenell appealed. In March 2019, we granted


                                                                         A-4221-17T3
                                       2
the Department's motion for a temporary remand, "to review, clarify and further

explain" the decision. The following month, the ICC of Northern 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 administrators thereafter issued a written decision explaining

their opposition to full minimum status. They reaffirmed the SWSP Associate

Administrator's original reasoning. They referred to Ravenell's pre-sentence

investigation report, which they said indicated that Ravenell mercilessly killed

his victim. They 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]here 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 Associate Administrator's

authority to override the ICC's decision. He also contends 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

administrators relied on contested facts about Ravenell's crime, and there is


                                                                         A-4221-17T3
                                        3
insufficient evidence that they considered other relevant factors as Departmental

regulations mandate.

      We first address Ravenell's challenge to an administrator'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, the ICC must consider "all relevant factors," which "may

include, but are not limited to" the following:

             1. Field account of the present offense;
             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
             Administrator 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).]



                                                                             A-4221-17T3
                                         4
     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. Residential 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;
           14. 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 inmate's present
           or prior offense history (see N.J.S.A. 2C:44-1a.). . . .

           [N.J.A.C. 10A:9-3.3(a).]

                                                                       A-4221-17T3
                                      5
      As the Acting Commissioner recently recognized, the regulations say

nothing about an administrator'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, 245 (1987) (citing

Standard 853); see also Shabazz, 385 N.J. Super. at 122 n.1 (noting that

"[d]ecisions as 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 Institutional Classification Committee").

      Nonetheless, "the Commissioner possesses the residual authority to

supersede the custodial classification standards."      Jenkins, 108 N.J. at 255.

Using his authority under N.J.A.C. 10A:1-2.4, the Acting Commissioner issued

a rule exemption on February 2, 2019, clarifying that an administrator could

overrule ICC decisions to grant full minimum status. 1                The Acting

Commissioner also authorized the Central Office to review any administrator's

decision. The Acting Commissioner expressed the intention to incorporate these



1
  The rule exemption has not been published in the New Jersey Register, nor,
as best we can tell, has it been posted on the Department's website. Therefore,
we attach it, including the Department's redactions, as an exhibit to the court's
opinion.
                                                                            A-4221-17T3
                                         6
clarifications in a formal rulemaking. See Jenkins, 108 N.J. at 255 (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 administration 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-4552-17 (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 laws. 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 clarifying pre-


2
    We 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.
                                                                             A-4221-17T3
                                         7
existing policy, authorizing administrators to override ICCs 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 custody status generally does not implicate a liberty interest

protected by the Due Process Clause, unless it involves an "atypical, significant

deprivation." Sandin v. Conner, 515 U.S. 472, 486 (1995); see also Shabazz,

385 N.J. Super. at 123. Absent punitive intent, "the Ex Post Facto Clause 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 status decision itself rests on firmer

ground. Although the Commissioner has "complete discretion" to determine an

inmate's placement and custody status, the Commissioner has circumscribed that

discretion as delegated to the ICC and prison administrators. Smith, 346 N.J.

Super. at 29, 33.   We may disturb a final agency action if it is arbitrary,

capricious or unreasonable, or it clearly violates its statute or State policy.

Williams 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't


                                                                         A-4221-17T3
                                       8
of Corr., 152 N.J. 60, 70 (1997) (citations omitted). The Commissioner has not

exempted ICCs or administrators 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 custody

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. There is

insufficient evidence in the two administrators' written decision that they

considered any of the nine factors other 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-promulgated 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 offense." N.J.A.C. 10A:9-
3.3(a)(11).


                                                                          A-4221-17T3
                                         9
surrounding Ravenell's offense.5     Nonetheless, 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 not rooted solely in formalism. Rather, it is premised on the well-

settled principle that an agency decision must clearly state its 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 conviction may not be used "as the sole reason for
denial of full minimum."
                                                                         A-4221-17T3
                                      10
represent an exercise in agency expertise. The agency is obliged . . . to tell us

why") (internal quotation marks and citations omitted). By stating only that

"circumstances . . . indicate[] a blatant disregard for human life as well as an

extreme level of violence," a reviewing court has no way to know whether the

ICC and administrator considered any of the other relevant factors in N.J.A.C.

10A:9-4.5(a), and what weight they attributed to them. 6

      Furthermore, 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 assumed that Ravenell committed purposeful

murder, a charge that the State ultimately dismissed. However, according 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 defendant 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 reason for denial, rather than address all
"relevant factors" as N.J.A.C. 10A:9-4.5(a) requires.
7
  The 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, was
inadvertently omitted; however, we have been assured nothing is missing.
                                                                         A-4221-17T3
                                      11
      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, 576

(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, 210 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 (Rabner, C.J.,

dissenting).

      We discern no reason that an administrative agency, utilizing a

presentence report, should be subject to a different standard. Ravenell pleaded

guilty to felony murder, not purposeful murder. He disputed that his offense

was as egregious as purportedly alleged in his PSI report. The 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 administrators relied upon it in characterizing the nature of
Ravenell's crime.
                                                                            A-4221-17T3
                                        12
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 administrator and Central Office shall be

completed within an additional 30 days thereafter. We retain jurisdiction.




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