                                NOT FOR PUBLICATION WITHOUT THE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-4963-17T3

OMAR AIKENS,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                    Submitted December 2, 2019 – Decided February 19, 2020

                    Before Judges Ostrer and Susswein.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Omar Aikens, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Jane C. Schuster, Assistant Attorney
                    General, of counsel; Rachel Simone Frey, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Appellant, Omar Aikens, appeals from a final agency decision by the

Department of Corrections (DOC) denying his request for a reduction in custody

status from Gang Minimum to Full Minimum. With that reduced status, Aikens

could work outside the main prison with minimal supervision. N.J.A.C. 10A:9-

4.3(e). Applying the relevant legal principles to the record before us, and despite

the deferential standard of review we apply to DOC inmate classification

decisions, we are constrained to remand the case for DOC to reconsider its

decision in view of all relevant factors.

                                        I.

      Aikens is presently serving a term of imprisonment at South Woods State

Prison based on convictions for two separate criminal episodes. In 2002, Aikens

rented a hotel room with several other men and had sex with a 13-year-old girl

and a 14-year-old girl. He was subsequently convicted of endangering the

welfare of a child, N.J.S.A. 2C:24-4(a). In 2005, Aikens was involved in the

shooting death of a young man in Trenton. The victim had been shot once in

the head and twice in the back.             Aikens was convicted of aggravated

manslaughter, N.J.S.A. 2C:11-4. He was sentenced on these convictions to an

aggregate term of imprisonment of eighteen years and six months, with a fifteen-

year, eight-month and twenty-day period of parole ineligibility.


                                                                           A-4963-17T3
                                            2
      The South Woods Institutional Classification Committee (ICC) voted 5 -0

to reject Aikens's request for a reduction in custody status. On the DOC form

used to record the reasons for denying an inmate’s application, all five ICC

members wrote out by hand essentially the same phrase: "Field account of

present offense – extreme level of violence used in the commission of the

crime."1

      The day after the ICC vote, Aikens submitted an Inmate Inquiry seeking

to appeal ICC's decision. The next day, DOC tendered the following response

to Aikens' inquiry:

            Per 10A:9-4.2 No right to reduced custody. A
            reduction in custody status is a privilege and not a right.
            In addition per 10A:9-4.5 Discretion of the Institutional
            Classification Committee: In making decisions to

1
    The DOC form is captioned "FINAL APPROVAL FOR REDUCED
CUSTODY (FM) REASON FOR 'NO' VOTE." We note the form's caption
refers to "reason" in the singular and its layout design provides each member
only a small box in which to record that reason. These features would seem to
encourage ICC members to record a single reason for their vote to deny an
inmate's request for a reduction in custody status, even though N.J.A.C. 10A:9-
4.5(a) expressly requires an ICC to consider all relevant factors. We do not
regard this form as some kind of rule exemption that authorizes ICC members
to consider a single circumstance. No doubt the form was developed to make it
easier for ICC members to record their findings. Reliance upon this form can
be counterproductive, however, to the extent it allows if not invites ICC
members to provide an incomplete and thus inadequate memorialization of the
reasons for denying an inmate's application.
       We also note the ICC members all referred to a single crime even though
Aikens was convicted of two distinct offenses.
                                                                          A-4963-17T3
                                        3
            reduce an inmate's custody status the ICC shall take
            into consideration all relevant factors. In your case,
            extreme level of violence used in the commission of the
            present offense. The Committee will see you again next
            year 6/19, for FM consideration.

            [(Emphasis added).]

      The Department's response to Aikens's inquiry appears to confirm what

we glean from our reading of the completed Final Approval form—the extreme

level of violence used in the commission of the offense was the only

circumstance the agency explicitly considered in denying Aikens's request for

reduced custody status. We are skeptical, to say the least, that this was the only

relevant circumstance bearing on his current custody status, especially given the

length of time Aikens has been imprisoned. We surmise he has a substantial and

possibly evolving record of institutional conduct, positive or negative, as

reflected, for example, in his objective classification score. See infra note 3.

We therefore remand for the agency to consider such other pertinent factors or

else explain why no other circumstances are relevant.

                                       II.

      In reaching our conclusion, we acknowledge the legal principles we must

apply, including the deference we owe to administrative agencies in general and

to the DOC in particular. "The judicial capacity to review administrative agency


                                                                          A-4963-17T3
                                        4
decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). As a

general matter, we will "intervene only in those rare circumstances in which an

agency action is clearly inconsistent with its statutory mission or with other State

policy." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).

We may disturb a final agency action only if it is arbitrary, capricious, or

unreasonable. Brady, 152 N.J. at 210.

      We defer to administrative agencies in recognition of their "expertise and

superior knowledge of a particular field." Greenwood v. State Police Training

Ctr., 127 N.J. 500, 513 (1992) (citing Clowes v. Terminix Int'l, 109 N.J. 575,

587 (1988)). In our review of DOC's and the Commissioner's exercise of their

authority, we must acknowledge "[t]he breadth and importance of the

Commissioner's expertise and discretionary authority in matters of prison

policy, regulation and administration." Ortiz v. N.J. Dep't of Corr., 406 N.J.

Super. 63, 70 (App. Div. 2009).

      The Commissioner of Corrections has "complete discretion," moreover,

to determine an inmate's placement and custody status. Smith v. N.J. Dep't of

Corr., 346 N.J. Super. 24, 29 (App. Div. 2001) (citing N.J.S.A. 30:4-91.2). In

exercise of that discretion, the Commissioner has delegated his authority to the

ICC and prison administrators. Id. at 29, 33. However, although the ICC


                                                                            A-4963-17T3
                                         5
exercises the Commissioner's powers in this area, "the Department of

Corrections did not intend to give the Superintendent and Institutional

Classification Committee unbridled discretion to make [the] determination"

whether to grant full minimum custody status. Id. 32–33. Rather, the ICC and

Superintendent are obligated to "consider all of the factors pertinent to [the

inmate's] status." Id. at 32.

      Indeed, the DOC response to Aikens’s inquiry correctly acknowledges

that the ICC was required to consider all relevant factors. DOC in its appellate

brief likewise acknowledges that N.J.A.C. 10A:9-4.5(a) expressly provides that

when considering whether to change an inmate's custody status, an ICC must

consider "all relevant factors."

      N.J.A.C. 10A:9-4.5(a) provides a list of potentially 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;


                                                                          A-4963-17T3
                                         6
           (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.

      In addition, N.J.A.C. 10A:9-3.3(a) requires the ICC to make decisions

regarding an inmate's custody status based on the following twenty-three

factors:

           (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;


                                                                        A-4963-17T3
                                       7
           (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 . . .

           (22) Needs of the correctional facility; and/or

           (23) Any other factor pertinent to the inmate's case.


                                     III.

     So far as we are aware, the Commissioner has not exempted the ICC from

considering all relevant factors set forth in N.J.S.A. 10A:9-3.3 and N.J.A.C.

10A:9-4.5. See supra note 1. We therefore would expect the record before us

                                                                       A-4963-17T3
                                        8
to show compliance with the requirement to consider all relevant circumstances.

It does not. To the contrary, as we have noted, the record shows only that the

ICC considered the "[f]ield account of the present offense," N.J.A.C. 10A:9 -

4.5(a)(1), and the "[n]ature and circumstance of present offense." N.J.A.C.

10A:9-3.3(a)(11). The record does not show that the ICC considered other

circumstances that plainly appear to be relevant, including, for example, the

inmate’s objective classification score, which in this case was two. 2

      To ensure compliance with the obligation to consider all relevant factors,

ICC members must clearly state which factors they considered, and which ones

helped to tip the scales for or against custody status reduction. This requirement

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 the agency came to its

conclusion. See Balagun v. N.J Dep't of Corr., 361 N.J. Super. 199, 202–03



2
  Both N.J.A.C. 10A:9-4.5(a)(6) and N.J.A.C. 10A:9-3.3(a)(1) list the objective
classification score as a relevant factor. In this instance, the Reclassification
Instrument indicates a total score of 2. Six points were awarded based upon the
"severity of the current offense." Two points were subtracted based on "number
of disciplinary reports." Another two points were subtracted based on "program
participation – last 12 months." The record does not show that the ICC members
considered either the classification score or the two scored mitigating
circumstances relating to Aikens's recent institutional performance.
                                                                          A-4963-17T3
                                        9
(App. Div. 2003) ("We cannot accept without question an agency's conclusory

statements, even when they represent an exercise in agency expertise. The

agency is 'obliged . . . "to tell us why."'" (quoting In re Valley Hosp., 240 N.J.

Super. 301, 307 (App. Div. 1990))).

      Although we apply a highly deferential standard of review of DOC’s

exercise of discretion in classifying inmates, that deference presupposes that the

agency has complied with its own rules for exercising its discretion. See Cty.

of Hudson v. N.J. Dep't of Corr., 152 N.J. 60, 70 (1997) ("[A]n administrative

agency ordinarily must enforce and adhere to, and may not disregard, the

regulations it has promulgated." (citing In re Waterfront Dev. Permit, 244 N.J.

Super. 426, 434 (App. Div. 1990))). In this instance, we are constrained to

conclude that the agency violated its own policy as set forth in the governing

regulations, leading us to further conclude that the decision in this case was

unreasonable in the literal sense that it was not based on all pertinent reasons.

                                       IV.

       In reaching this conclusion, we appreciate DOC’s contention in its brief

that the violent and impulsive nature of the crimes for which Aikens was

convicted support the decision that he should remain inside the security

perimeter of the prison under frequent and direct supervision of custody staff.


                                                                           A-4963-17T3
                                       10
To be clear, we do not doubt that the level of violence associated with those

crimes is a relevant factor to which the ICC, in its broad discretion, might ascribe

significant weight.   It is within the ICC’s prerogative, in other words, to

conclude that the level of violence of those crimes tips the scales against all

other relevant circumstances that it considered. The point, however, is that

Aikens’s past level of violence is not the only relevant circumstance that the

ICC was required to consider under the regulatory decision-making framework

that channels its discretion. It seems implausible to us that none of the other

factors listed in N.J.A.C. 10A:9-4.5 or N.J.A.C. 10A:9-3.3 are pertinent to

Aikens’s suitability for Full Minimum custody status. It therefore is incumbent

on the ICC to explain how any other pertinent circumstances were considered in

relation to the level of violence employed during the crimes for which Aikens is

presently incarcerated.

                                        V.

      In sum, we remand for reconsideration by the ICC of the correctional

institution where Aikens is now assigned. It shall consider all pertinent factors

set forth in the regulations and shall document its reasoning so as to allow for

and facilitate further appellate review, if needed.




                                                                            A-4963-17T3
                                        11
      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 do not retain jurisdiction.




                                                                         A-4963-17T3
                                      12
