April 3, 2009
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
RENEE MARLENE JONES, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-01-00060.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 2, 2009
Before Judges Carchman and Simonelli.
The State appeals from the August 28, 2008 Law Division order admitting defendant Renee Marlene Jones into the Somerset County Pretrial Intervention Program (PTI) over the county prosecutor's objection. We affirm.
The following facts are summarized from the record. Defendant and her boyfriend had an altercation in her home, during which she stabbed him with a kitchen knife, inflicting a three to five millimeter wound requiring no stitches. Defendant also allegedly struck the boyfriend, causing injuries consistent with that allegation. Defendant was arrested and charged with third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count one), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two).
Defendant claimed that she acted in self-defense. She said that her boyfriend, who was in a jealous rage, was the aggressor. He allegedly repeatedly assaulted her, refused to leave her home despite her numerous demands, prevented her from calling the police, and threatened to burn down her house. She had injuries consistent with her assault claim. She claimed that she used the knife to scare her boyfriend into leaving her home, but that she did not know until advised by the police that she had stabbed him.
Defendant and her boyfriend filed domestic violence complaints. After a hearing, a Family Part judge found both parties guilty of acts of domestic violence and issued respective final restraining orders.
On January 11, 2008, defendant filed a pro se PTI application. On January 30, 2008, a grand jury indicted her on counts one and two. On February 4, 2008, the prosecutor offered defendant a plea agreement, which required her to plead guilty to both charges in exchange for probation with a 180-day term of incarceration in the Somerset County jail and fifty hours of community service.
Defendant declined the plea offer. Thereafter, she submitted information supporting her PTI admission. That information indicated that defendant had no prior criminal history, was highly educated and was gainfully employed in a responsible position with a major international corporation. Defendant also submitted the transcript of the domestic violence hearing.
On March 11, 2008, the prosecutor denied defendant's PTI admission, but provided no detailed statement of reasons at the time, as required by N.J.S.A. 2C:43-12f and R. 3:28(a)(3). See also State v. Caliguiri, 158 N.J. 28, 37 (1999). Defendant then submitted a letter from her treating therapist confirming her involvement in therapy.
The prosecutor admits that he consented to defendant's late filing of a second PTI application "in a good faith effort to review the defendant's qualifications for PTI and/or to resolve the matter by way of plea negotiations." The prosecutor met with defense counsel to discuss defendant's PTI admission. At the time of the meeting, the prosecutor knew that the victim did not want to testify at trial. The prosecutor also knew of defendant's self-defense claim and of the likely suppression of blood evidence found in her home and her statements to the police. He also had the transcript of the domestic violence hearing.*fn1
On April 22, 2008, the Criminal Division Manager recommended defendant's PTI admission conditioned on the payment of restitution to the victim and twenty-five hours of community service. Thus, by letter to defense counsel,*fn2 the prosecutor advised as follows, in relevant part:
This correspondence shall confirm our recent oral discussions regarding your client's desire for pre-trial diversion under Rule 3:28 and N.J.S.A. 2C:43-12.
Our office has agreed to dismiss Count One which charges third degree aggravated assault and will consent to your client['s] entry into PTI following the entry of a guilty plea to Count Two which charges third degree possession of a weapon for an unlawful purpose. As a condition of PTI, your client will have to attend and complete an anger management program. [(Emphasis added).]
Defendant refused to plead guilty. As a result, on June 6, 2008, the prosecutor denied her PTI admission based upon N.J.S.A. 2C:43-12e:
(1) the nature of the crime;
(7) the needs and interests of the victim and society;
(10) whether or not the crime is of assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior; and
(14) whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution.
In his written statement of reasons, the prosecutor stated that "[t]he crimes committed by the defendant involve assaultive behavior and violence towards another person[,]" that "the needs and interests of society are best served by prosecuting those persons who resort to violence with deadly weapons during [a] verbal argument[,]" and that "[a]dmission of the defendant to the PTI program would deprecate the serious nature of her assaultive behavior and the crimes committed in this County." The prosecutor rejected defendant's self-defense claim and her therapist's report, and concluded that defendant "has an anger management issue which remains unrecognized[.]"
Defendant appealed the prosecutor's decision to the Law Division. The State argued, as it does here, that the Rule 3:28 Guidelines do not apply because the prosecutor never contemplated PTI for defendant, and because the State required a guilty plea as part of the plea negotiations, not the PTI determination.
In a 17-page written decision, Judge Marino found the State's reasoning to be circular and inconsistent. Nothing changed from the time [d]efendant was initially denied admission into PTI to the time she was offered admission into PTI in exchange for a guilty plea. Accordingly, this Court has significant doubt as to the State's good faith. This Court finds that
[d]efendant is either eligible for PTI or she is not and the State's negotiated plea offer is proof that [d]efendant is indeed eligible.
Noting that the prosecutor consented to the late filing of a PTI application, the judge rejected the State's contention that the application was untimely. The judge concluded that Rule 3:28, Guideline 4 prohibits the prosecutor from demanding a guilty plea in this case "unless a defendant's attitude is so poor that the goals of PTI would be subverted without entry of a guilty plea." The judge also concluded that the prosecutor's rejection of defendant's PTI admission "was a patent and gross abuse of discretion" and "subverts the goal of the PTI program." This appeal followed.
On appeal, the State contends that the judge "failed to appreciate the distinction between an improper offer of PTI with a guilty plea, and a proper subsequent plea negotiations which involved the dismissal of a criminal charge and admission to PTI." (Emphasis original). The State posits that the plea negotiations, which included a PTI component, did not violate Rule 3:28, Guideline 4. We disagree.
"PTI is a diversionary program designed to 'augment the options of prosecutors in disposing of criminal matters... [and] provide applicants with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant.'" State v. Motley, 369 N.J. Super. 314, 320 (App. Div. 2004) (quoting State v. Brooks, 175 N.J. 215, 223 (2002)). To gain admission, a defendant must obtain a positive recommendation from the PTI director and the consent of the prosecutor. Ibid.
In making a PTI determination, the prosecutor must consider a number of factors, including "a defendant's 'amenability to correction' and potential 'responsiveness to rehabilitation.'"
State v. Watkins, 193 N.J. 507, 520 (N.J. 2008) (quoting N.J.S.A. 2C:43-12b). "Such assessments are individualized and are dependent on a host of factors including the details of the case, defendant's motives, age, past criminal record, standing in the community, and employment performance, to name a few." Ibid. (citing State v. Sutton, 80 N.J. 110 (1979); N.J.S.A. 2C:43-12e).
A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI." Ibid. (citing State v. Nwobu, 139 N.J. 236, 246-47 (1995)). "In order to overturn a prosecutor's rejection, a defendant must 'clearly and convincingly' establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff'd, 193 N.J. 507 (2008)). See also State v. Negran, 178 N.J. 73, 82 (2003); Brooks, supra, 175 N.J. at 225; Nwobu, supra, 139 N.J. at 246; Motley, supra, 369 N.J. Super. at 321. "A patent and gross abuse of discretion is defined as a decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Watkins, supra, 193 N.J. at 520 (quoting Wallace, supra, 146 N.J. at 582-83). "Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Bender, 80 N.J. 84, 93 (1979).
We give "enhanced deference" to a prosecutor's PTI decision. State v. Wallace, 146 N.J. 576, 589 (1996); State v. Leonardis, 73 N.J. 360, 381 (1977); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). For that reason, "[t]he scope of judicial review of a decision to reject a PTI application is 'severely limited.'" Hoffman, supra, 399 N.J. Super. 207, 213 (App. Div. 2008). See also Leonardis, supra, 73 N.J. at 381. "However, where the prosecutor has made a legal error, there is a relatively low threshold for judicial intervention because '[t]hese instances raise issues akin to questions of law, concerning which courts should exercise independent judgment in fulfilling their responsibility to maintain the integrity and proper functioning of PTI as a whole.'" Watkins, supra, 193 N.J. at 520-21 (citing State v. Dalglish, 86 N.J. 503, 510 (1981)).
The fundamental question before us is whether, under the circumstances of this case, the prosecutor could require defendant to plead guilty in exchange for PTI admission as either part of plea negotiations or as part of a PTI determination. The answer is "no." In reaching this conclusion, we reject the State's contentions that defendant was not PTI eligible and that the guilty plea condition was made in connection with the plea negotiations.
Defendant became PTI eligible when the prosecutor consented to her admission in exchange for her guilty plea. The prosecutor expressly gave consent in connection with defendant's "desire for pre-trial diversion under Rule 3:28 and N.J.S.A. 2C:43-12[,]" not in connection with the plea negotiations. Even if the contrary was true, we conclude that the prosecutor could not include PTI admission as part of a plea offer requiring defendant to plead guilty. To conclude otherwise would render meaningless the prohibition against conditioning PTI admission on a guilty plea.
"Enrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilty. Enrollment of defendants who maintain their innocence should be permitted unless the defendant's attitude would render pretrial intervention ineffective." R. 3:28, Guideline 4. See also N.J.S.A. 2C:43-12g. Rejection of PTI admission should only occur where "it is unlikely that behavioral change can occur as a result of short-term rehabilitative work." Pressler, Current N.J. Court Rules, comment on R. 3:28, Guideline 4.
Here, the prosecutor made no finding that defendant's attitude would render her participation in PTI ineffective so as to justify the guilty plea condition. Even if he made such finding, defendant was in the early stages of therapy at the time she submitted her therapist's letter, and there is no evidence that behavioral change would not occur as a result of further rehabilitative work.
Based upon our careful review of the record, we discern no reason to disturb Judge Marino's decision. The prosecutor's condition of a guilty plea in exchange for defendant's PTI admission constitutes a legal error. It also constitutes the improper consideration of inappropriate factors (the guilty plea) amounting to a clear error in judgment and a patent and gross abuse of discretion requiring reversal. Wallace, supra, 146 N.J. at 582-83; Bender, supra, 80 N.J. at 93.