                                NOT FOR PUBLICATION WITHOUT THE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-5106-17T3

ANDRE JONES,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                    Submitted June 18, 2019 – Decided July 8, 2019

                    Before Judges Koblitz and DeAlmeida.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Andre Jones, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Erica R. Heyer, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Appellant Andre Jones, a State inmate, appeals from a Department of

Corrections (DOC) finding that he was guilty of prohibited act *.002/*.803,

attempting to assault another person, in violation of N.J.A.C. 10A:4-4.1(a)(1)(ii)

and (xiv). We affirm the adjudication of guilt. However, because we conclude

the hearing officer failed to articulate appropriate reasons for the sanctions

imposed, as required by N.J.A.C. 10A:4-9.17(a) and Mejia v. N.J. Dep't of Corr.,

446 N.J. Super. 369, 378-79 (App. Div. 2016), we remand for reconsideration

of the sanctions.

      On June 6, 2018, Jones was performing extra duty for a prior disciplinary

infraction when he became argumentative with, and took a fighting stance

toward, a corrections officer. Jones attempted to strike the officer with a closed

fist and remained combative as the officer and other custody staff members

attempted to restrain him. Ultimately, officers subdued Jones with mace spray

and handcuffs.      The following day, an officer served Jones with written

disciplinary charges.

      At the subsequent hearing, Jones requested and received the assistance of

counsel substitute. He pleaded not guilty. Jones denied being the aggressor and

testified that he was harassed and assaulted by the officers without provocation.




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      After considering Jones's testimony and the written statements of several

corrections officers, a hearing officer adjudicated Jones guilty. The hearing

officer imposed sanctions of 181 days in administrative segregation, a ninety-

day loss of commutation time, and a ten-day loss of recreation privileges. In

addition, the hearing officer imposed previously suspended sanctions for a prior

disciplinary offense of thirty days in administrative segregation and a thirty-day

loss of commutation time.

      The findings and sanctions were reviewed and affirmed by the DOC. The

Assistant Superintendent who issued the final determination stated: "DOC is in

compliance with procedural safeguards.      The sanction is appropriate to the

charge. No leniency will be afforded to you."

      This appeal followed. Jones argues that the determination of guilt is not

supported by substantial evidence and that his counsel substitute was ineffective

during the disciplinary hearing and administrative appeal.

      Our role in reviewing a prison disciplinary decision is limited. Figueroa

v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). In general,

the decision must not be disturbed on appeal unless it was arbitrary, capricious,

unreasonable, or lacked the support of "substantial credible evidence in the




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                                        3
record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)

(citation omitted).

      We will not, however, "perfunctorily review and rubber stamp the

agency's decision." Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 203

(App. Div. 2003). "Instead, we insist that the agency disclose its reasons for

any decision, even those based upon expertise, so that a proper, searching, and

careful review by this court may be undertaken." Ibid.

      "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). We are satisfied Jones was afforded all of his due process rights

regarding the hearing as articulated in Avant v. Clifford, 67 N.J. 496, 525-33

(1975). In addition, the hearing record contains substantial credible evidence

supporting the hearing officer's finding of guilt, which was based largely on the

hearing officer's credibility determinations.

      Jones was deprived, however, of an articulation of the reasons for the

imposed sanctions. Id. at 533. Attempting to assault any person is a Category

A offense. N.J.A.C. 10A:4-4.1(a)(1)(ii) and (xiv). The authorized sanctions for

Category A offenses range from a minimum of 181 days to a maximum of 365

days in administrative segregation and one or more of the sanctions listed at


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                                        4
N.J.A.C. 10A:4-5.1(e).      Ibid.   Jones was sanctioned with 181 days in

administrative segregation, a ninety-day loss of commutation credits, and a ten-

day loss of recreation privileges. The term in administrative segregation is the

minimum sanction of that type that may be imposed for Jones's offense. The

additional sanctions exceed the minimum but are below the maximum sanctions

permitted by N.J.A.C. 10A:4-5.1(e). When an inmate receives sanctions above

the minimum permitted, the hearing officer must provide individualized reasons

for the specific sanctions imposed. Mejia, 446 N.J. Super. at 378-79; Malacow

v. N.J. Dep't of Corr., 457 N.J. Super. 87, 97-98 (App. Div. 2018). The hearing

officer must articulate the factors considered in the imposition of sanctions, so

we may perform our review of "whether a sanction is imposed for permissible

reasons."   Mejia, 446 N.J. Super. at 379; see also N.J.A.C. 10A:4-9.17(a)

(providing factors to individualize particular sanctions).

      Under "reasons for sanction," the hearing officer wrote: "Inmate must be

held accountable for actions. To deter violence toward staff, while promoting a

safe, secure & orderly facility." These findings are justifications generally for

imposing sanctions on an inmate who attempts to assault a corrections officer.

They are not, however, an explanation of why the specific sanctions imposed on

Jones, from the range of authorized sanctions, were appropriate based on


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                                        5
individual considerations. We therefore remand for a reconsideration of the

imposed sanctions. Appropriate reasons for the sanctions must be articulated

using the factors listed in the administrative code.

      The adjudication of guilt is affirmed. The sanctions imposed are vacated

and the matter is remanded for reconsideration of sanctions. We do not retain

jurisdiction.




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