                    NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0710-13T4


RIGOBERTO MEJIA,
                                        APPROVED FOR PUBLICATION
     Appellant,
                                            August 11, 2016

v.                                         APPELLATE DIVISION

NEW JERSEY DEPARTMENT OF
CORRECTIONS,

     Respondent.
_________________________

         Argued June 16, 2016 – Decided August 11, 2016

         Before Judges Fuentes, Koblitz and Gilson.

         On appeal from the New Jersey Department of
         Corrections.

         Alexander   Shalom  argued   the  cause  for
         appellant (American Civil Liberties Union of
         New   Jersey   Foundation,   attorneys;  Mr.
         Shalom, Edward Barocas, Jeanne LoCicero, and
         Rebecca Livengood, on the brief; Rigoberto
         Mejia, on the pro se brief).

         Joseph Micheletti, Assistant Chief Deputy
         Attorney General, argued the cause for
         respondent (Robert Lougy, Acting Attorney
         General,   attorney;   Lisa   A.   Puglisi,
         Assistant Attorney General, of counsel;
         Dianne M. Moratti, Deputy Attorney General,
         and Alex J. Zowin, Deputy Attorney General,
         on the briefs).

     The opinion of the court was delivered by

KOBLITZ, J.A.D.
     In this prison disciplinary appeal, Rigoberto Mejia argues

that the sanction of three and one-half years in administrative

segregation was improper.        Mejia is a prisoner at New Jersey

State    Prison   currently   serving   a   sentence    with   a    mandatory

minimum of forty years imposed in 1995 for murder and associated

crimes.      Mejia   was   originally   sentenced      to   death    for   the

shooting of another undocumented worker over $750 in December

1991.1    Mejia, who is now fifty-seven years old and whose first

eligibility for parole is in 2031, appeals from an August 8,

2013 disciplinary action taken against him by the New Jersey




1
  In State v. Mejia, 141 N.J. 475, 485-86 (1995), our Supreme
Court reversed Mejia's death penalty sentence, holding jury
instructions were required, in the guilt phase, on the ultimate
outcome of a conviction of murder with the intent to kill–
capital murder—versus murder with the intent to cause serious
bodily injury—which is not death-eligible.    The Court held the
instruction should advise the jury that it could return a non-
unanimous guilty verdict as to the mental state of a defendant
who the jury unanimously found had committed a homicide. Id. at
486.   If the jury was not unanimous as to the mens rea, the
defendant would then not be eligible for the death penalty.
Ibid.    The holding in Mejia was no longer authoritative
following the 1992 New Jersey constitutional amendment.      See
State v. Cooper, 151 N.J. 326, 376-77 (1997), cert. denied, 528
U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000).         The
Legislature later repealed the death penalty in 2007. See State
v. Troxell, 434 N.J. Super. 502, 510 (App. Div.) (explaining the
legislative action), certif. denied, 221 N.J. 285 (2014).



                                    2                                A-0710-13T4
Department        of   Corrections      (DOC).2         We   reverse        the   sanction

imposed because it was arbitrary and unreasonable.

       On July 15, 2013, Mejia threw a bucket of hot water, urine

and feces on a corrections officer who was walking by his cell.

The substance also made contact with another corrections officer

who    was     below   Mejia's     cell.        Mejia    claimed       he   had   done   so

because he was fearful that the "officer wanted to jump him."

       A five-man extraction team was called to remove Mejia from

his cell.          Initially, officers were unable to enter the cell

because Mejia had tied a bedsheet to the door, which had to be

cut by the responding officers.                    Officers also utilized "OC

spray,"       a   chemical     agent,      to    subdue      Mejia      before    finally

extracting him.

       Mejia was charged with several asterisk offenses:3 1) two

counts       of   *.012,     "throwing     bodily       fluid     at    any   person      or

otherwise purposely subjecting such person to contact with a

bodily fluid"; 2) *.154, "tampering with or blocking any locking

device"; and 3) *.306, "conduct which disrupts or interferes

with     the      security    or   orderly       running     of      the    correctional

2
  We hereby grant the DOC's June 14, 2016 motion to supplement
the record with certifications and documents relating to Mejia's
mental health screening.
3
  Asterisk offenses "are considered the most serious and result
in the most severe sanctions."       N.J.A.C. 10A:4-4.1(a); see
N.J.A.C. 10A:4-5.1(a) (providing the schedule of sanctions for
asterisk offenses).



                                            3                                     A-0710-13T4
facility."    See N.J.A.C. 10A:4-4.1(a).            At the administrative

hearing, Mejia pled guilty to one charge of throwing                    bodily

fluid on a person, and not guilty on the remaining charges.

Although   Mejia    waived   counsel       substitute,    according    to    the

hearing officer's adjudication Form 259-A, a counsel substitute

was present for "translation purposes."            Following the hearing,

Mejia was adjudicated guilty on all four charges.

     The hearing officer sanctioned Mejia to the maximum period

of administrative segregation4 on each charge, all consecutive to

each other.       On the first bodily fluid charge, Mejia received

fifteen    days    of   disciplinary       detention,    365   days   loss   of

commutation time, 365 days of administrative segregation, and 90

days loss of television, phone and radio privileges.                   On the

4
  The DOC argues "solitary confinement" does not exist in the New
Jersey state penal system and did not exist at the time Mejia
was sanctioned.      "Administrative segregation" is defined as
"removal of an inmate from the general population of a
correctional facility to a close custody unit because of one or
more    disciplinary    infractions    or    other   administrative
considerations."      N.J.A.C. 10A:1-2.2.        The DOC contends
administrative segregation is not solitary confinement because
inmates have access to several services, including "five hours
of recreation outside of [their] cell each week" and regular
reviews by the mental health staff through the locked cell door.
Mejia's mental health records reflect he attended one group
session for stress management while housed on administrative
segregation for more than two-and-one-half years. "Disciplinary
detention" is the "removal of an inmate from the general
population to a short-term close custody unit because of a
disciplinary infraction(s)."     Ibid.    We were informed at oral
argument that during disciplinary detention an inmate has no
access to group sessions, recreation or privileges.



                                       4                              A-0710-13T4
second       bodily     fluid     charge,     Mejia       received        fifteen   days    of

disciplinary detention, 365 days loss of commutation time, 365

days administrative segregation, and 30 days loss of recreation

privileges.           On the tampering with a locking device charge,

Mejia received time served in disciplinary detention, 180 days

loss     of     commutation          time,         180        days   of     administrative

segregation,          and    30     days     loss        of     recreation     privileges.

Finally, for the conduct that disrupts charge Mejia received

time     served       in     disciplinary          detention         and    365     days    of

administrative segregation.                  The hearing officer ran all of the

sanctions consecutively, other than the disciplinary detention

sanctions.        Mejia's sanctions totaled 30 days of disciplinary

detention; 910 days loss of commutation time; 90 days loss of

television,       phone       and    radio       privileges;         60     days    loss    of

recreation        privileges;          and       1275         days   of     administrative

segregation.

       Under      the       "reasons       for      sanctions"         portion      of     the

adjudication form, the hearing officer noted Mejia "must be held

responsible for his actions," the behavior was "disgusting," and

it     had    caused        the   corrections            officers     to     seek    medical

attention.        Although the two officers were medically examined,

the record contains no evidence of any injuries to either of

them due to this incident.




                                               5                                     A-0710-13T4
      On July 22, 2013, Mejia filed an administrative appeal of

the   disciplinary     decision     written     in    Spanish.        Within    three

weeks, the Assistant Superintendent of New Jersey State Prison

upheld the decisions regarding both the adjudication and the

sanctions in general language without directly addressing any

issue raised.        In the "explanation" portion of the form, the

Assistant    Superintendent        stated:      "My   review     of    this     issue

reveals     that    there    was    compliance        with     the     New     Jersey

Administrative       Code   on   inmate      discipline,       which    prescribes

procedural     safeguards,         and    the     charge       was     adjudicated

accordingly.       The preponderance of evidence presented supports

the decision of the Hearing Officer and the sanction rendered is

appropriate.       There appears to be no violation of standards."

      In October 2013, Mejia filed an appeal to this court.                        Six

months later, the DOC filed a successful motion for a remand to

reconsider Mejia's administrative appeal after its translation

into English.       On June 6, 2014, after the appeal was translated,

the Office of the Administrator for New Jersey State Prison

again upheld the hearing officer's decision, this time rejecting

the specific arguments raised by Mejia almost a year earlier.5


5
  Mejia argued that, contrary to the hearing officer's report, he
asked for a staff member legal representative at the hearing,
and told the hearing officer that he had only seven years of
schooling and did not understand English well.     He stated the
                                                      (continued)


                                         6                                   A-0710-13T4
      In his pro se appeal to this court Mejia argued he had

mental     health    needs      and    had    not     received     the     mental    health

screening required by N.J.A.C. 10A:4-9.5(c)(2), which requires

that a list of inmates with a pending disciplinary infraction be

forwarded to the "Mental Health Unit for a determination as to

which inmates should be considered special needs inmates."                                 The

DOC   responded       to    this      issue      in     its   initial      brief    in     one

paragraph, stating "there is no evidence of mental health issues

and Mejia is not a special needs inmate," citing to notations by

the   hearing    officer         on    DOC    forms      stating    "no     evid.     of    MH

[(mental health)]."             We sua sponte ordered the American Civil

Liberties Union, with its consent, to represent Mejia on appeal

and file a supplemental brief on his behalf.

      In    response       to    Mejia's      supplemental         brief    raising        the

argument      that    he        suffered      from       mental    illness         and     was

particularly     vulnerable           to   the    negative      effects     of   long-term

solitary confinement in administrative segregation, the DOC for

the   first    time    revealed        Mejia      had    been   screened      for    mental

health issues and was routinely reviewed, albeit in a cursory

fashion, pursuant to the settlement of a federal case in 1999.

See D.M. v. Terhune, 67 F. Supp. 2d 401, 403-05 (D.N.J. 1999).


(continued)
inmate interpreter was only available at the end of the hearing,
and he was denied the material and time to prepare.



                                              7                                     A-0710-13T4
The DOC further informed us at oral argument that, pursuant to

an   August      14,   2015   "Request     for   Rule   Exemption" 6      (Rule

Exemption), Mejia had been returned to the general population

housing at an unknown date prior to oral argument, but after

February    8,   2016,   when   the   records    reflect   he   remained       in

administrative segregation.        The Rule Exemption, submitted to us

after     oral   argument,    eliminated    disciplinary    detention        and

limited     administrative      segregation      "for   multiple   offenses

imposed as a result of the same incident" to 365 days.                       The

Rule Exemption also states:

                 Studies have shown that isolation,
            under   certain  circumstances,   exacerbates
            mental health deterioration.    As such, the
            elimination of [disciplinary] detention, and
            the immediate transport of an inmate to a
            less restrictive administrative segregation
            unit upon adjudication, will have a positive
            impact on the inmate population.

                 Similarly,     maximizing inmate exposure
            to no more than      365 days of administrative
            segregation per      incident, rather than per
            infraction, will     decrease the likelihood of
            isolation.




6
  N.J.A.C. 10A:1-2.4 authorizes the Commissioner to "relax and
exempt   rules  and   regulations  for   the  administration   of
correctional facilities . . . within the Department of
Corrections" to avoid "undue hardship, unfairness or injustice."
Although the DOC provided a document titled "Request for Rule
Exemption," and counsel stated at oral argument that a Rule
Exemption had been applied to Mejia, we were not supplied with
any official document designated as an approval of this request.



                                      8                                A-0710-13T4
The Rule Exemption attachments include "a replacement list of

prohibited acts found in N.J.A.C. 10A:4-4.1(a)" separating "the

original list into the 5 new Categories from the Rule Exemption"

including      "the   applicable         number   of    days    of    Administrative

Segregation     per    category."          The    sanction      range      for     *.012,

"Throwing bodily fluid at any person," is 181 to 365 days.                             The

other two infractions for which Mejia was convicted carry a

sanction range of 91 to 180 days.                      Thus, the infraction of

*.306, "conduct which disrupts or interferes with the security

or   orderly    running     of    the     correctional       facility,"      has     been

downgraded to an infraction carrying a possible sanction of no

more than 180 days in administrative segregation rather than the

365 days Mejia received.

       The scope of our review of an agency decision is limited.

Capital Health Sys., Inc. v. N.J. Dep't of Banking & Ins., ___

N.J.   Super.    ___,      ___    (App.    Div.   2016)       (slip    op.   at      14).

"Ordinarily, an appellate court will reverse the decision of the

administrative agency only if it is arbitrary, capricious or

unreasonable     or   it    is    not    supported      by   substantial     credible

evidence in the record as a whole."                      Henry v. Rahway State

Prison, 81 N.J. 571, 579-80 (1980).                    "Normally, when reviewing

agency   decisions,        we    defer    to   matters       that    lie   within      the

special competence of an administrative tribunal."                         Balagun v.




                                           9                                     A-0710-13T4
N.J. Dep't of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003).

"[S]uch    deference     is     appropriate         because   it    recognizes       that

'agencies    have      the    specialized         expertise   necessary       to   enact

regulations dealing with technical matters and are "particularly

well equipped to read . . . and to evaluate the factual and

technical issues that . . . rulemaking would invite."'"                              N.J.

Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of

Agric.,    196   N.J.    366,       385    (2008)    (quoting      In   re   Freshwater

Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004)).                         "Our role

is to engage in a 'careful and principled consideration of the

agency record and findings.'"                 DeCamp v. N.J. Dep't of Corr.,

386 N.J. Super. 631, 636 (App. Div. 2006) (quoting Williams v.

Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)).

"[A]lthough      the   scope        of   review    of   an   agency's    decision     is

circumscribed, an appellate court's review of an agency decision

is 'not simply a pro forma exercise in which [the court] rubber

stamp[s]    findings         that    are   not    reasonably    supported       by   the

evidence.'"      In re Taylor, 158 N.J. 644, 657 (1999) (second and

third alterations in original) (quoting Chou v. Rutgers, 283

N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J.

374 (1996)).




                                            10                                 A-0710-13T4
      Mejia argues his appeal of administrative segregation is

not   moot7    because,      should    he        be   convicted     of   any     further

infraction,         the    severity    of    his       prior     sanction      will    be

considered when imposing punishment.                     This argument raises the

question      of    what    criteria   are        used    in    imposing      sanctions.

N.J.A.C. 10A:4-9.17, titled "Disciplinary sanctions," provides

in pertinent part:

              (a)    The   disciplinary action  may   be
              individualized by considering such factors
              as the:

                     1.    Offender's    past   history                  of
                     correctional facility adjustment;

                     2.   Setting and circumstances                of    the
                     prohibited behavior;

                     3.    Involved inmate's account;

                     4.   Correctional           goals    set     for    the
                     inmate; and

                     5.   The inmate's history of,                 or    the
                     presence of, mental illness.

              [(Emphasis added).]

The DOC also provided us with a copy of an "internal policy"

statement,         ADM.008.000,   titled         "Inmate       Disciplinary     Hearing

Program: Mission, Goals and Objectives," revised on April 28,

7
  The DOC has not raised the question of mootness. Even if the
issue were moot, we would address it because of its importance.
See Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176
N.J. 568, 583 (2003) (resolving a moot issue because of its
public significance and likelihood to reoccur).



                                            11                                  A-0710-13T4
2011,    and   reviewed       in    September     2015,      which     states       "[t]he

mission of the Inmate Disciplinary Hearing Program is to ensure

that . . . all inmate disciplinary hearings are conducted fairly

and impartially . . . ."              One of the "Goals and Objectives" is

"[t]o ensure fair and equitable sanctioning of inmates . . . ."

To     accomplish     those        ends,    "monthly        reports        containing       a

statistical         breakdown         of     infractions,             comments,          and

recommendations       are     generated,        analyzed,     and     distributed         to

appropriate    administrative          staff."        The    DOC     has    provided      no

information    stating       hearing       officers    are     required       to     impose

sanctions based on the factors set forth in                           N.J.A.C. 10A:4-

9.17(a), or any other delineated factors.

       Mejia    was     given        the     longest        possible         period       of

administrative segregation available at the time based on the

articulated reasons that his behavior was "disgusting," he "must

be held responsible for his actions," and corrections officers

had been medically examined.               Mejia was convicted of two counts

of throwing bodily fluids on another person, which is arguably

"disgusting"     in    any     of    its    manifestations.            See     State       v.

Fuentes, 217 N.J. 57, 74-75 (2014) (holding "a sentencing court

must scrupulously avoid 'double-counting' facts that establish

the elements of the relevant offense").                     All inmates should be

held    accountable    for     their       actions,    and     the     fact    that      the




                                           12                                      A-0710-13T4
officers hit by Mejia's bodily fluids were examined medically

does not in itself reflect any injury to either of them.                               A

bedrock principle of fair punishment is that it be meted out the

same to individuals similarly situated.                       State v. Moran, 202

N.J. 311, 326 (2010) (stating our Supreme Court "often has taken

affirmative     steps   to   ensure    that   sentencing            and    disposition

procedures, whether authorized by statute or court rule, will

not   produce   widely    disparate     results         for    similarly      situated

defendants").

      Our criminal statutes provide aggravating and mitigating

factors that must be considered and articulated on the record

prior to sentencing.         N.J.S.A. 2C:44-1; see Fuentes, supra, 217

N.J. at 73; see also State v. Case, 220 N.J. 49, 54 (2014)

(stating   that      "[c]entral   to   the    success         of"   the     sentencing

"process   is     the   requirement    that       the    judge      articulate      the

reasons for imposing sentence").              The DOC regulations include

factors to be utilized in imposing sanctions, but unfortunately

leave the use of those or other "such factors" entirely to the

discretion of the hearing officer.                See N.J.A.C. 10A:4-9.17(a).

The hearing officer adjudication form has a section for the

purpose of stating the reasons for the sanction.                          Prior to the

translation     of   Mejia's   appeal,      the    DOC's       generic      affirmance

acknowledged the sanction imposed must be equitable, stating,




                                       13                                     A-0710-13T4
"the sanction rendered is appropriate."                      For a sentence to be

"appropriate," it is not enough that the sentence be within the

maximum limits set forth in the Administrative Code.                          With such

totally discretionary sanctioning factors, a hearing officer is

not guided to distinguish among inmates convicted of the same

infraction,      as    evidenced      by   the    articulated       reasons     for   the

maximum     period     of    isolation       imposed    on   Mejia.         Without   any

regulation requiring the articulation of sanctioning factors, we

have   no    way      to    review    whether     a    sanction        is   imposed   for

permissible      reasons      and     is   located     at    an   appropriate       point

within the allowable range.                  See In re Issuance of Permit by

Dep't of Envtl. Prot., 120 N.J. 164, 172-73 (1990) (stating an

administrative         agency    that      is     performing       a    quasi-judicial

function    is     obligated     to    set    forth     basic     findings     of   facts

supporting the ultimate conclusion so the reviewing tribunal may

sufficiently       review      whether     the    actions       were    arbitrary     and

capricious, and whether they were within the agency's scope of

authority); see also Bailey v. Bd. of Review, 339 N.J. Super.

29, 33 (App. Div. 2001) (stating this court should not defer to

an administrative determination unless it has "confidence that

there has been a careful consideration of the facts in issue and

appropriate        findings      addressing           the    critical        issues    in

dispute").




                                             14                                 A-0710-13T4
    We   therefore   reverse   the   sanctions   imposed   for   Mejia's

commission of various infractions in a single incident.             Under

current rules Mejia could not have been sanctioned to more than

a total of 365 days of administrative segregation.         He could not

have received any time in disciplinary detention.          He has thus

served more than the maximum sanction presently available.              We

reverse the penalties imposed on Mejia, but affirm his guilt.

    Mejia raises two other issues in his appeal: the quality of

the mental health screening and mental health services he has

been provided in prison, and the related issue of whether an

interpreter was provided to him to allow him to take advantage

of the mental health services otherwise available.8         The record


8
   Following oral argument, the DOC provided us with a document
titled "Health Services Unit Internal Management Procedures"
specific to "Privacy of Care" that states: "For inmates with
special communication needs staff will obtain permission from
the inmate for use of an interpreter or telephonic translation
service and arrange for such services."    Mejia's actual mental
health records reflect he was provided an interpreter for a
mental health check-up on May 6, 2016, but had not been provided
one for psychological check-ups previously.    In April 2012 the
social worker recorded that Mejia's "[E]nglish is not so good
.   .    .   It   became   clear   that    he    had   difficulty
understanding/communicating in [E]nglish.    I was going to see
him with a translator later today, but in looking through the
EMR [(electronic medical records)] it became clear that he does
speak [E]nglish." In January 2013 the records reflect Mejia had
rejected the offer of an interpreter.           See New Jersey
Administrative Office of Courts, Directive 3-04 (Mar. 22, 2004);
see also Daoud v. Mohammad, 402 N.J. Super. 57, 60 (App. Div.
2008) (holding a tenant was deprived of due process by the
court's failure to provide an interpreter); State v. Rodriguez,
                                                      (continued)


                                 15                              A-0710-13T4
provided to us does not allay our concerns with regard to these

issues.      Mental health screening at times was performed through

a   locked     cell    door    in    English,        during    which     Mejia       was

unresponsive     to    the    questions     asked      by     the     mental    health

professional.      Based on this "data" Mejia was determined to be

oriented in all spheres and not delusional.                     We do not have a

sufficient record to review the mental health services provided

to Mejia against a legally required standard for prison inmates.

No hearing has been conducted; no experts have prepared reports

or testified.

     Not     denying    his    commission       of     at     least    one     of    the

infractions from the beginning of the appellate process, Mejia

sought relief from the penalty imposed.                We have given Mejia the

relief he requested.          As is true all too often, the time taken

in this appeal, including the time necessitated by the failure

of the DOC to translate Mejia's agency appeal initially, has

nullified any practical effect of this relief.                      Nonetheless, we

anticipate     that    the    requirement     for      the     consideration         and

articulation     of    sanctioning    factors    by     hearing       officers      this

opinion imposes will assure the sanctioning of state prisoners

becomes more "fair and equitable," a stated goal of the DOC.


(continued)
294 N.J. Super. 129, 145 (Law Div. 1996) (reversing two traffic
violations on the same grounds).



                                       16                                      A-0710-13T4
    We affirm the findings of guilt and reverse and remand as

to the penalties imposed.   We do not retain jurisdiction.




                                17                           A-0710-13T4
