October 6, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
OCTAVIO MERCEDES AND BRANDON SIMMONS, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, 07-01-0128-A and 07-01-0131-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Stern and Waugh.
The State appeals from the defendants' admissions into the pretrial intervention program (PTI).
Defendants were both charged with third-degree aggravated assault, N.J.S.A. 2C:12-1b(2), third- and fourth-degree possession of weapons offenses, N.J.S.A. 2C:39-4d, -5d, and third-degree criminal mischief, N.J.S.A. 2C:17-3. After waiving indictment and trial by jury, both defendants pled guilty to simple assault, a disorderly persons offense, N.J.S.A. 2C:12-1a, and third-degree criminal mischief in exchange for recommendations incident to the disposition and sentence. The State "consent[ed]" to both defendants' "application[s]" to PTI and recommended a sentence of "non-custodial probation" if not admitted.*fn1 The PTI program found defendants eligible and recommended admission. However, the prosecutor declined to consent.
As to defendant Mercedes, the prosecutor wrote:
Specifically, it has been shown that on November 22, 2006, at approximately 11:35 p.m., victim Raymond Grier was attacked with baseball bats by the defendant and three other men. He reported that while attempting to start his vehicle, the four men approached him and smashed his driver's side rear window and front windshield with aluminum baseball bats. As he attempted to exit the vehicle, the men beat him on the head with the baseball bats and attempted to flee to their vehicle. A hospital security guard saw the four men running with bats and called for assistance. The defendant, along with three other co-defendants, were arrested without incident. The victim, who obtained independent medical assistance, suffered from lacerations to his head and face and glass in his eyes. Mr. Grier still suffers from severe headaches and sensitivity to bright light.
I have evaluated the guidelines relevant to P.T.I. as enunciated in statutory and decisional law. Upon due consideration of all factors, I have determined that Octavio Mercedes is not a suitable candidate for diversion.
There is a presumption against admission into P.T.I. where the crime was deliberately committed with violence or threat of violence against another person. Guideline 3(i) of R. 3:28. In this case, the defendant and three other men deliberately, and without provocation, beat the victim and his property with aluminum baseball bats. Where the Guidelines create a presumption against admittance, this Office may reject an applicant solely due to the nature of the offense, unless he shows "compelling reasons" justifying his admission. Although the defendant is young, has completed high school, and is enrolled at Passaic County Community College, he has not demonstrated anything or idiosyncratic in his background suggesting that he would be responsive to rehabilitation. Therefore, the defendant has not overcome the presumption against his admission and is an inappropriate candidate for P.T.I.
This office has also considered the needs and interests of the victim and society in making its decision, and the possible injurious consequences of the defendant's actions. N.J.S.A. 2C:43-12(e)(7) and (10). The victim suffered significant injuries during the attack, including lacerations on his head and face, glass in his eyes, severe headaches, and sensitivity to bright light. In addition, he suffered from extensive property damage to his car. The act of hitting someone with a bat is very dangerous, and could have resulted in the victim's death of more serious injuries. This type of behavior is socially unacceptable and needs to be deterred. Therefore, the defendant is not a suitable candidate for a diversionary program.
Finally, I have determined that the defendant has failed to establish that the values of supervisory treatment would outweigh the public need for prosecution. N.J.S.A. 2C:43-12e(14). The aggravating factors, particularly N.J.S.A. 2C:43-12e(1), (2), (7), (9) (substantial danger), (10), (14), (15), and (17), which overwhelmingly outweigh the mitigating factors, namely N.J.S.A. 2C:43-12e-(3) (age), (8), (9) (no criminal convictions), (12), and (13), militate against the defendant's admission into the program.
The prosecutor wrote the same objection with respect to defendant Simmons.
Both defendants appealed the denial, and the designated judge overruled the prosecutor's objection. Although recognizing the proper scope of review and appropriate factors when rendering his opinion, the judge said:
Although the defense counsel vouches to the fact that the defendants, nor families have any prior criminal disposition, the Court may find that the interest of society may justify the denial and application for admission into P.T.I. even though the defendant has lead an exemplary life. Because of an attack of an individual with a weapon such as a baseball bat, a scenario which is quite frankly cowardly even if it's retaliatory in nature, and although the standard of review required are quite high. Again citing State v. Baynes, 148 N.J. 434 (1997). That case and the situations, even the prosecutor's decisions, one that is based upon appropriate factors and rationally explained, it's contrary to the admission or administration of justice, that is or despite the underlying purposes of P.T.I., the Court may consider alternative.
Additionally, according to Baynes which emphasizes that P.T.I. admission determination is individualistic in nature and must bear on that person's amenability to rehabilitation, the bottom line is in all candor, both Mr. Mercedes and Mr. Simmons through there [sic] attorneys are asking the Court to show some leniency and in essence not to use the law as a punitive measure but as a rehabilitative measure.
Nonetheless, it holds the defendants accountable for the actions committed against the victim and as I indicated, although not making findings of fact, given the scenario that the Court has before it, it is hard to believe that these young men would -- especially for these young men who claim to be educated, to have strong familiar ties and backgrounds, that they are very intelligent and the Court could very well, as I said, use the law as a punitive measure in this case and hold the defendants accountable in that way, however, looking at this case in its totality, the Court will nonetheless show some leniency, probably more than the defendants did to the victim, but I will grant the request for P.T.I. because I find it very hard to throw these young men's lives away.
In accordance with State v. Baynes, P.T.I. will be granted because the Court finds that the underlying principle of diversion is rehabilitation and that the defendants to me, from where I sit, show sufficient amenability to rehabilitation. (emphasis added)
We remand for further proceedings. While the judge recognized the proper scope of review, see, e.g., State v. Brooks, 175 N.J. 215, 225 (2002); State v. Baynes, 148 N.J. 434, 443-44 (1997); State v. Wallace, 146 N.J. 576, 582-84 (1996); State v. Nwobu, 139 N.J. 236, 247 (1995), he also quite clearly decided to "show some leniency" and not "throw these young men's lives away." Moreover, this matter involved a post-plea admission into PTI despite the Guidelines. See Guidelines 6 and 7 to Rule 3:28. Yet, in State v. Moraes-Pena, 386 N.J. Super. 569, 578 (App. Div.), certif. denied, 188 N.J. 492 (2006), we made clear that R. 3:28 "contemplates that the issue concerning enrollment into PTI shall be resolved before or at the pretrial conference and, in any event, before a plea or verdict . . . . It does not contemplate further proceedings at the trial level after a guilty plea is entered." Under these circumstances, enrollment into PTI is troublesome.
On the other hand, the plea transcript has not been submitted to us.*fn2 As a result, we do not know what factual bases were stated at the time of the plea, and it is clear that defendants pled guilty to simple assault, not the third-degree aggravated assault as alleged in the accusation. Defendants cannot now be treated as if they committed a crime not included in the negotiated plea and not acknowledged when defendants pled guilty. State v. Brooks, supra, 175 N.J. at 229-30 (while dismissed charge can be considered in terms of whether defendant "should have [been] deterred . . . from committing a subsequent offense," "[u]nder no circumstances may a court, prosecutor, or PTI director infer guilt in respect of any dismissed charge . . . ."). Accordingly, the designated judge must evaluate the application based on the factual bases for the pleas, not the facts as asserted in the complaints and accusations, and the procedural aspects of the case. See State v. Moraes-Pena, supra, 386 N.J. Super. at 578-79; State v. Frangione, 369 N.J. Super. 258, 260-61 (App. Div. 2004). In that context, the prosecutor's consent to the filing of the application following entry of the guilty plea must be considered.
The matter is remanded for further proceedings consistent with this opinion.