STATE OF NEW JERSEY VS. RAQUIL K. CLARK (17-09-0862, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0324-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAQUIL K. CLARK, a/k/a
RAPHEAL BLAKENEY,
RAPHAEL BLAKENEY, JOEY
BLAKENEY, JOEY RALPH,
RAFAEL BLAKENEY,
RAPLAEL BLAKENEY, and
RANDY CLARK,

Defendant-Appellant.
____________________________

Submitted January 6, 2020 – Decided September 9, 2020

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 17-09-
0862.

Joseph E. Krakora, Public Defender, attorney for
appellant (Marcia H. Blum, Assistant Deputy Public
Defender, of counsel and on the briefs).
 Gurbir S. Grewal, Attorney General, attorney for
respondent (Regina M. Oberholzer, Deputy Attorney
General, of counsel and on the brief).

PER CURIAM

The Department of Corrections imposed disciplinary sanctions on

defendant Raquil K. Clark after finding he assaulted two corrections officers,

and disrupted or interfered with prison security and order. The State thereafter

obtained a criminal indictment, charging Clark with two counts of aggravated

assault, N.J.S.A. 2C:12-1(b)(5)(h). Clark unsuccessfully argued the indictment

should be dismissed because the Double Jeopardy Clause barred his prosecution.

He then pleaded guilty to one count, conditioned on his right to renew his

contention on appeal. We now reject his argument. The Double Jeopardy

Clause "protects only against the imposition of multiple criminal punishments

for the same offense," Hudson v. United States, 522 U.S. 93, 99 (1997). We

hold that Clark's prison discipline is not "criminal punishment." Therefore, the

Clause did not bar the State's prosecution.

I.

On a motion to dismiss an indictment, we normally assume the facts

alleged in the indictment. State v. Cobbs, 451 N.J. Super. 1, 5 (App. Div. 2017).

The two-count indictment charged that Clark "purposely did attempt to cause

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and/or purposely or knowingly or recklessly caused bodily injury" to two

corrections officers while they were performing their duties "while in uniform,

or exhibiting evidence of [their] authority." Two other inmates were also

indicted in connection with the incident. In his plea, Clark admitted he swung

a balled fist at one officer with the purpose to cause bodily injury. That

constituted a purposeful attempt to cause bodily injury. See N.J.S.A. 2C:12-

1(b)(5), incorporating N.J.S.A. 2C:12-1(a)(1).

To understand the prison disciplinary proceedings, we rely, as does Clark,

on a Corrections Department Criminal Investigation Report and Clark's inmate

progress notes report. 1 According to those documents, Clark joined two fellow

inmates in assaulting two officers. The records state that the other inmates

1
The Department's Special Investigations Division sent the Criminal
Investigation Report to the prosecutor as required by N.J.A.C. 10A:4-4.2 and
N.J.A.C. 10A:21-8.2, -8.5. Notably, the record before us does not include
documents related to the underlying disciplinary proceedings, such as the
disciplinary and investigation reports and the written charges, N.J.A.C. 10A:4 -
9.1, -9.5; the evidence presented at the hearing (such as the video-recording of
the assault); the hearing officer's disciplinary decision, N.J.A.C. 10A:4-9.24; the
documents Clark submitted in support of his administrative appeal; and the
subsequent decision, N.J.A.C. 10A:4-11.7. The Investigation Report at one
point states Clark was sanctioned only for conduct which disrupts the prison's
security or order, N.J.A.C. 10A:4-4.1(a) *.306. But elsewhere, the report states
that "the evidence revealed" that Clark assaulted both officers; and Clark's
Inmate Management Progress Notes Report reflects that he was disciplined both
for *.306, and assault, *.002.

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punched the two officers, and kicked one in the face while one officer was on

the ground. A video-recording depicted Clark running toward the officers and

assaulting both. This was not Clark's first violent incident while incarcerated.

The previous year, Clark had been sanctioned with 10 days of detention, 270

days of administrative segregation, and 270 days of loss of commutation time,

for fighting with another person, N.J.A.C. 10A:4-4.1(a) *.004. 2

After a hearing, Clark was found to have committed a single charge of

assault of another person, N.J.A.C. 10A:4-4.1(a) *.002, and engaging in conduct

that disrupts or interferes with prison security or order, N.J.A.C. 10A:4 -4.1(a)

*306.3 On each prohibited act, he received 300 days of administrative

segregation, and 300 days loss of commutation time. The hearing officer's

determination and sanction were upheld on administrative appeal.

Almost two years after the assault, Clark was indicted. At the oral

argument on the motion to dismiss on double jeopardy grounds, Clark's counsel

2
Both Clark's previous sanction (2014), and the ones at issue in this case (2015),
were imposed under the previous departmental regulations, see 48 N.J.R. 915(a)
(June 6, 2016) (rule proposal), and 49 N.J.R. 105(a) (Jan. 3, 2017) (rule
adoption). We thus do not cite to the regulations as they are currently organized
in N.J.A.C. 10A:4-4.1(a).
3
The record does not indicate why he was found to have committed a single
assault — especially when the Investigation Report stated that the evidence
"revealed" that Clark assaulted two officers.
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highlighted the severity of his disciplinary sanction. Clark himself confirmed

that administrative segregation strictly limited his recreational and other

privileges. But he admitted it did not involve solitary confinement, as he shared

his cell with another inmate.

The trial court denied defendant's motion. Relying on a federal appellate

court decision it found persuasive, the court held that the Double Jeopardy

Clause does not bar a criminal prosecution for criminal conduct that was the

subject of prison disciplinary sanctions. The judge reasoned that "[t]he

sanctions were remedial and meant to address the goal of maintaining

institutional order and security" and did not "constitute additional punishment."

Thereafter, Clark entered his conditional plea and was sentenced. The

sentence presents a separate issue on appeal, which we discuss after addressin g

the double jeopardy argument.

II.

We review de novo the trial court's decision denying the dismissal motion,

as it turns on a purely legal question. See State v. Shaw, 455 N.J. Super. 471,

481 (App. Div. 2018) (noting that "[a]lthough an abuse of discretion standard

generally governs our review of a trial court's decision on a motion to dismiss

an indictment, we review de novo a decision that 'relies on a purely legal

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question'" (quoting State v. Twiggs, 233 N.J. 513, 532 (2018))), aff'd, 241 N.J.

223 (2020). The dispositive question for double jeopardy analysis is whether

prison disciplinary sanctions constitute criminal punishment, since the Double

Jeopardy Clause only bars successive "criminal punishments for the same

offense." Hudson, 522 U.S. at 99. Following the two-stage analysis that Hudson

prescribes, we conclude (1) the Legislature intended prison disciplinary

sanctions to be civil; and (2) in light of a non-exhaustive list of "useful" factors

and other considerations, the disciplinary scheme is not "so punitive either in

purpose or effect as 'to transform what was clearly intended as a civil remedy

into a criminal penalty.'" Ibid. (quoting Rex Trailer Co. v. United States, 350

U.S. 148, 154 (156)).

The Fifth Amendment's Double Jeopardy Clause, and our State

Constitution's protection against double jeopardy, N.J. Const., Art. I, ¶11, are

coextensive. State v. Schubert, 212 N.J. 295, 304 (2012). They bar a second

prosecution for the same offense after an acquittal or after a conviction, and

"'multiple punishments for the same offense.'" Id. at 304-05 (quoting Jones v.

Thomas, 491 U.S. 376, 381 (1989)).

Clark seeks the latter form of protection. He has satisfied the requirement

that the multiple criminal punishment must occur "in successive proceedings."

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Hudson, 522 U.S. at 99. And we assume for purposes of his appeal that the

subsequent prosecution was for the "same offense" that triggered prison

discipline. As Clark notes, the incident preceded our Supreme Court's decision

in State v. Miles, 229 N.J. 83 (2017); so, he could establish "same offense" by

showing the "same-evidence" or the "same-elements" were implicated. Id. at

99. We therefore focus on the character of prison discipline. Everyday notions

of punishment are not dispositive. "[T]he Double Jeopardy Clause does not

prohibit the imposition of all additional sanctions that could, 'in common

parlance,' be described as punishment." Hudson, 522 U.S. at 98-99 (quoting

United States ex rel. Marcus v. Hess, 317 U.S. 537, 549 (1943)).

"Whether a particular punishment is criminal or civil is, at least initially,

a matter of statutory construction." Id. at 99. Therefore, we must first look for

an express or implied legislative intent to characterize the sanction as civil or

criminal. Ibid. However, the Legislature's intent is not the final word. As a

second stage of analysis, a court will deem a punishment to be criminal if it is

"so punitive either in purpose or effect." Ibid. (quoting United States v. Ward,

448 U.S. 242, 248-49 (1980)). A court will override legislative intent based

only on "the clearest proof" pertaining to the disciplinary statute "on its face."

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Id. at 100 (quoting Ward, 448 U.S. at 249, and then Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 169 (1963)).

In analyzing a disciplinary scheme's "purpose or effect," the Supreme

Court found as "useful guideposts" seven factors:

(1) "whether the sanction involves an affirmative
disability or restraint"; (2) "whether it has historically
been regarded as a punishment"; (3) "whether it comes
into play only on a finding of scienter"; (4) "whether its
operation will promote the traditional aims of
punishment-retribution and deterrence"; (5) "whether
the behavior to which it applies is already a crime"; (6)
"whether an alternative purpose to which it may
rationally be connected is assignable for it"; and (7)
"whether it appears excessive in relation to the
alternative purpose assigned."

[Id. at 99-100 (quoting Kennedy, 372 U.S. at 168-69).]

However, the Kennedy factors are "neither exhaustive nor dispositive,"

Ward, 448 U.S. at 249, nor are they necessarily entitled to equal weight, Riley

v. N.J. State Parole Bd., 219 N.J. 270, 286 n.6 (2014) (noting the United States

Supreme Court, in Smith v. Doe, 538 U.S. 84, 105 (2003), deemed factors 3 and

5 of little weight in ex post facto analysis). As then-Judge Sotomayor observed,

"It is particularly appropriate to apply the factors flexibly in the context of prison

discipline cases . . . ." Porter v. Coughlin, 421 F.3d 141, 147 (2d Cir. 2005).

That is so, "'because in the prison context, virtually any form of sanction seems

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'criminal' and 'punitive' as we commonly understand those terms.'" Ibid.

(quoting United States v. Mayes, 158 F.3d 1215, 1223 (11th Cir. 1998)).

We do not write on a clean slate. In two cases, State v. Hatterer, 75 N.J.

Super. 400 (App. Div. 1962) and Russo v. New Jersey Department of

Corrections, 324 N.J. Super. 576 (App. Div. 1999), we held that prison

discipline was not criminal punishment under the Double Jeopardy Clause.

Their reasoning supports our conclusion here, although in neither did we fully

apply Hudson's two-stage analysis, including the Kennedy guideposts. In

Hatterer, which preceded Kennedy, we held that "double jeopardy is not

applicable to punishment imposed by prison officials," since "[d]ouble jeopardy

has reference to criminal prosecutions only." 75 N.J. Super. at 403.

Consequently, we rejected the defendant's argument that the Double Jeopardy

Clause barred his criminal prosecution and sentence for escape, after prison

authorities imposed separate discipline upon his recapture.

In Russo, the prisoner did not challenge a subsequent criminal prosecution

for behavior that already triggered prison discipline. Rather, he contended he

was subject to successive prison disciplinary prosecutions for the same

infraction. Anthony Russo was "acquitted" of prison disciplinary charges of

running a gambling pool, based on his cell-mate's confession; but found guilty

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of possessing cigarettes as unauthorized items. Thereafter, prison officials

discovered compelling documentary evidence that Russo was indeed running a

gambling operation in which inmates used cigarettes as currency. Russo used

his word-processor in the endeavor; he purchased cigarettes outside the prison

through agents; he then resold them to inmates; and he also accepted payment

for helping inmates with their legal matters. In a second proceeding, the

Department of Corrections found him guilty of operating an unauthorized

business for profit, misusing electronic equipment, and improperly accepting

something of value from another person. Id. at 579-80. On appeal, we rejected

his argument that the second disciplinary proceeding violated the Double

Jeopardy Clause.

We deemed the thrust of Russo's argument to be that the sanctions

constituted significant penal restraints upon his liberty. Id. at 582. Applying

the first stage of the Hudson analysis, we concluded that the Legislature intended

sanctions imposed under New Jersey's system of prison discipline to be civil in

nature. Id. at 583-84. We noted that prison discipline was never treated "as part

of the criminal process," and is focused on "the remedial goal of maintaining

institutional order and security." Id. at 583. We also observed that the prison

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conduct that triggered discipline did not readily correspond to statutory or

common law crimes. Id. at 583-84.

We reach the same conclusion here regarding legislative intent. In further

support, we highlight that the Legislature conferred the disciplinary powers on

an administrative agency. The Supreme Court has considered that "prima facie

evidence" of the intent "to provide for a civil sanction." Hudson, 522 U.S. at

103.

We turn to the second stage of the Hudson analysis, and consider whether

the prison sanctions are so punitive that they override the legislative intent to

create a civil sanction. Although we identified the Kennedy factors in Russo,

we did not expressly apply them to the issue presented. However, we do so in

this case, and conclude that they do not provide the requisite "clearest proof"

that the disciplinary sanctions constitute criminal punishment.

We recognize many of the factors tilt in favor of characterizing the

sanctions — particularly administrative segregation — as criminal. See Porter,

421 F.3d at 147. Administrative segregation is an "affirmative restraint" (factor

one). Harsh and prolonged confinement — which result from administrative

segregation and lost commutation time — have "historically been regarded as a

punishment" (factor two). Although the Department's regulations do not

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expressly require a finding of scienter to prove the prohibited acts in this case,

we have imposed a scienter requirement in other contexts, see Figueroa v. N.J.

Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (requiring knowing

state of mind to prove possession of a prohibited substance, N.J.A.C. 10A:4-

4.1(a) *.203), and may assume one applies here (factor three). The sanctions

promote deterrence, if not retribution (factor four). And, "the behavior to which

the sanctions apply is already a crime" (factor five), at least when it comes to

swinging a fist at a corrections officer.

However, we agree with the Second Circuit that factors six and seven

"weigh heavily," and tilt the balance against, the prisoner's double jeopardy

claim, notwithstanding the finding that the first five factors favor his claim.

Porter, 421 F.3d at 147. The prisoner in Porter contended that a disciplinary

sanction for rioting-related infractions was barred, once he was convicted and

sentenced for a riot-related crime — promoting prison contraband (he possessed

a handmade knife during the riot). The court held that sanctioning the prisoner

was rationally related to a non-punitive purpose, maintaining order and security

(factor six), and the sanction was not excessive in relation to that purpose (factor

seven). "If prison officials fail to sanction those involved in a prison riot, sever e

problems maintaining order in the prison may quickly follow." Id. at 148. The

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court noted that special confinement conditions made it less likely the prisoner

would participate in other violent acts. Ibid. "The need to maintain order . . . is

a legitimate nonpunitive interest, even if it sometimes requires that prison

officials take action of a punitive character." Ibid.

We reach the same conclusions with respect to Clark's conduct. The

administrative sanctions at issue here serve the non-punitive purposes of

maintaining order, and deterring the kind of behavior — assault on officers —

that undermines it. Clark's contentions regarding the severity and excessiveness

of his punishment do not persuade us. First, administrative segregation —

notwithstanding its harshness — is not solitary confinement, which Clark

contends imposes a severe toll on an inmate's mental health. Second, the

Department's rule amendments, reducing and modifying the terms and

conditions of administrative segregation, see 48 N.J.R. 915(a) (June 6, 2016)

(rule proposal), and 49 N.J.R. 105(a) (Jan. 3, 2017) (rule adoption), do not

render the prior sanctions "criminal punishment." Third, we must review the

sanctions on their face, not as applied in Clark's particular case. Hudson, 522

U.S. at 99-100. In any event, coming on the heels of a previous sanction for

fighting, we are not persuaded that his sanctions, although severe, were so

excessive as to render them criminal punishment. Notably, Clark received a

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sanction for a single assault, although the evidence indicated he assaulted two

officers.

We repeat our observation in Russo: "Prisons are dangerous places, and

the courts must afford appropriate deference and flexibility to administrators

trying to manage this volatile environment." 324 N.J. Super. at 584. Corrections

officials have a limited array of tools to respond to behavior that threatens the

order and security of the institution. They cannot extend sentences. They can

only affect the conditions of a term of confinement already ordered, and

withdraw privileges or commutation time previously earned. See Porter, 421

F.3d at 148; Mayes, 158 F.3d at 1224. "[T]he punitive character of the [prison]

environment may make even purely regulatory sanctions appear punitive in

nature." Porter, 421 F.3d at 148; see also Mayes, 158 F.3d at 1224 (noting "in

the prison context, virtually any form of sanction seems 'criminal' and

'punitive'"). But, we are persuaded, applying the Kennedy factors flexibly and

mindful of the context in which the sanctions are imposed, that the Double

Jeopardy Clause did not bar Clark's subsequent criminal sentence for the

behavior that triggered the administrative sanctions.

In addition to Porter, other courts' decisions, applying Hudson, support

our conclusion. See, e.g., United States v. Simpson, 546 F.3d 394, 397-98 (6th

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Cir. 2008) (holding that Double Jeopardy Clause did not bar federal prosecution

for escape after the Bureau of Prisons imposed sanctions for the related

conduct); Mayes, 158 F.3d at 1224-25 (holding that Double Jeopardy Clause did

not bar federal prosecution for riot-related crimes after defendants were

sanctioned for related conduct); State v. Baker, 145 A.3d 955, 966 (Conn. App.

Ct. 2016) (rejecting double jeopardy argument challenging sentence for

possessing a weapon in a correctional institution, where defendant was already

sanctioned administratively); Haney v. United States, 999 A.2d 48, 49 (D.C.

2010) (holding Double Jeopardy Clause did not bar criminal prosecution for

assaulting corrections officer after inmate received term of "disciplinary

segregation" and lost privileges for throwing feces and apparent urine at

corrections officers); State v. Jones, 230 So.3d 22, 23 (Fla. Dist. Ct. App. 2017)

(reversing dismissal of charges, holding "the Double Jeopardy Clause was never

meant to impinge on remedial institutional discipline"); Commonwealth v.

McGee, 744 A.2d 754, 759 (Pa. 2000) (holding that double jeopardy principles

do not bar subsequent criminal prosecution where prison disciplinary action

conforms to "the authorized administrative scheme, and . . . falls within the

range of predictable punishment under the original sentence and can be justified

on the basis of safe, orderly or efficient institutional administration").

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 In sum, we affirm the trial court's order denying Clark's motion to dismiss

the indictment on double jeopardy grounds.

III.

We turn to the issue of Clark's sentence. The court imposed two terms of

three years, flat — one term for each count of the indictment — to be served

concurrently with each other, and consecutively to the sentence Clark was then

already serving. That sentence apparently conformed to the terms of the written

plea agreement that Clark executed. 4 However, it did not conform to Clark's

actual plea. At the plea hearing, Clark pleaded guilty to only one count of

assault. Therefore, the second three-year term shall be vacated.

The prosecutor stated she had nothing to add after defense counsel

outlined the agreement that Clark "will plead guilty to [c]ount one of this

indictment . . . . He'll plead guilty to a third-degree aggravated assault of a

correction[]s officer." In questioning Clark, the court confirmed Clark's

understanding that he was pleading to one count of the indictment, subjecting

him to a single three-year term. In his allocution, Clark admitted to swinging a

balled fist at the officer named in count one; and said nothing about assaulting

4
The plea form identified both counts in the "list [of] the charges to which
[defendant is] pleading guilty," but also referred to the indictment number in the
"[l]ist [of] any charges the prosecutor has agreed to recommend for dismissal."
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the officer named in count two. The prosecutor expressed her satisfaction with

the allocution, and the court accepted the plea.

Under those circumstances, the court's sentence two months later of three

years on count two was plainly illegal, as defendant was not convicted of that

count.5 We reject the State's argument that we should remand for a hearing "to

reconcile a discrepancy in the reco[r]d as to what charges defendant pleaded

guilty to." We discern no uncertainty or ambiguity in the plea hearing.

Regardless of what Clark may have agreed in the written plea agreement, the

prosecutor expressed satisfaction with Clark's unambiguous plea to only one

count of the indictment. In short, the State agreed to accept a plea to just one

count. "[T]he terms and conditions of a plea bargain must be meticulously

carried out." State v. Jones, 66 N.J. 524, 525-26 (1975). We therefore vacate

the conviction for count two and remand for the court to correct the judgment of

conviction.

Affirmed as to the denial of the motion to dismiss. Vacated as to the

conviction on count two and remanded. We do not retain jurisdiction.

5
A statement in the pre-sentence report that defendant pleaded guilty to both
counts, and both counsels' failure to correct it, may explain the court's error.
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