May 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGELO R. RODRIGUEZ, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-06-0258.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 3, 2010
Before Judges Rodríguez and Yannotti.
Defendant Angelo R. Rodriguez, Jr. appeals from an order entered on October 22, 2007, terminating his participation in the Pretrial Intervention Program (PTI), and the judgment of conviction dated January 18, 2008. We affirm the order terminating defendant's participation in PTI but reverse the judgment of conviction, and remand the matter to the trial court to permit defendant to withdraw his plea.
The following procedural history and facts are pertinent to our decision. Defendant was charged under Indictment No. 06-06-258 with possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:2-6(c) and N.J.S.A. 2C:35-5(b)(11) (count one); possession of CDS, N.J.S.A. 2C:35-10(a)(3) and N.J.S.A. 2C:2-6(c) (count two); obstructing the administration of the law, N.J.S.A. 2C:29-1 (count three); and resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count four). Defendant was also separately charged with possession of drug paraphernalia, N.J.S.A. 2C:36-2; and resisting arrest, N.J.S.A. 2C:29-2(a).
On November 2, 2006, defendant pled guilty to count one in Indictment No. 06-06-258, "[i]n exchange" for the prosecutor's agreement to allow defendant to apply for admission to PTI and the dismissal of the other charges. At the plea hearing, the assistant prosecutor stated that the PTI program would be: for a term of one year with [fifty] hours of community service, drug testing every week for the first two months. If all negative then every two weeks after that. If the defendant is terminated from PTI he will be sentenced to three years of probation, non-custodial. Judge, just on that issue of the drug testing. The drug testing will occur through PTI but that will be random. What the defendant will be required to do is obtain the outside services . . . through . . . [Somerset County's probation department]. But he'll have to get independent drug testing from whichever agency is going to be approved by PTI. . . . In addition there is no loss of license with PTI if the defendant completes it. And the municipal charges or the motor vehicle violations will be remanded to Municipal Court. So that is my understanding of the plea agreement in its entirety.
The plea form stated, among other things, that if defendant were terminated from PTI, he would be sentenced to three years of probation.
On May 18, 2007, the trial court considered defendant's application for admission to the PTI program. The court questioned defendant concerning the program:
Q: Mr. Rodriguez, you have been recommended for participation in the pretrial intervention program and if you successfully complete the program the charge or charges will be dismissed. Do you understand that?
Q: But to accomplish that you will have to comply with all the various program conditions. I assume that those conditions have been reviewed with you, is that correct?
Q: And any questions at this time?
The court entered an order of postponement dated May 18, 2007, which deferred further proceedings in the case for twelve months and authorized defendant's participation in PTI. The second page of the order set forth the conditions for PTI supervision. A check was placed alongside of the following statement:
"DRUG/ALCOHOL TESTING AND/OR COUNSELING AS DIRECTED[:] SUBMIT TO A SUBSTANCE ABUSE EVALUATION AND FOLLOW RECOMMENDATIONS FOR TREATMENT; SUBMIT TO RANDOM DRUG SCREENS FOR DURATION OF PTI TERM[.]
Defendant signed the second page of the order, beneath the following statement:
I have received a copy of the Special Conditions of PTI Supervision which have been read and explained to me. . . . I understand the conditions of PTI Supervision and that they apply to me, and I further understand that failure to comply on my part constitutes a violation of PTI Supervision and may cause my termination from the program and prosecution of the charges against me.
By letter dated August 8, 2007, the Somerset County probation officer Lorena DuQue (DuQue) informed defendant that a recommendation would be made to the court to terminate his participation in PTI because he failed to schedule a substance abuse evaluation, as directed by the probation officer. The trial court conducted a hearing on the matter on October 22, 2007.
At the hearing, DuQue testified that, after the case was transferred from Hunterdon County, defendant reported to her on June 19, 2007. She went over defendant's "case plan" with him. DuQue noted that, as stated on the order of postponement, the special conditions for PTI required defendant to undergo a substance abuse evaluation and follow the treatment recommendations resulting from that evaluation.
DuQue stated that defendant "seemed to be a little surprised" when she told him that he had to have a substance abuse evaluation and follow the recommendations for treatment. Defendant said that his attorney told him that he did not have to go for treatment. DuQue gave defendant the names of two agencies and told him to call one of them to set up an appointment for an evaluation before their next meeting.
Defendant met with DuQue on July 3, 2007. He had not scheduled a substance abuse evaluation. She told him he had to make an appointment for the evaluation by the date of their next scheduled meeting, July 24, 2007. Defendant did not appear on that date because he was working overtime, and the meeting was rescheduled for July 31, 2007. At the meeting on July 31, defendant informed DuQue that he had not scheduled the substance abuse evaluation. Defendant said that he was going to call his attorney to discuss the matter.
DuQue testified that defendant "was pretty much in denial." He said that he was not using drugs, and did not have time for treatment because he had a full-time job. DuQue showed defendant the court's order of postponement, which stated that he had to submit to a substance abuse evaluation and any treatment recommendations.
On August 8, 2007, DuQue issued the letter advising defendant that an application would be made to the court to terminate his participation in PTI. Defendant contacted DuQue on August 21, 2007, and said that he would go for the substance abuse evaluation. Defendant stated that he did not want to return to court, but DuQue told him she intended to proceed with the termination application.
Defendant went to Guided Life Structures (GLS) for an evaluation on August 30, 2007. GLS thereafter reported to DuQue that defendant had "displayed a great deal of denial" and did not agree with the substance abuse evaluation. According to GLS, defendant was "arrogant and defiant in his attitude." He refused treatment and said it was a "waste of time[.]" GLS said that, if defendant had agreed to treatment, it would have recommended anger management; drug/alcohol group counseling sessions for a minimum of ten weeks; and random drug and alcohol screens.
Defendant again reported to DuQue on September 4, 2007. Defendant told DuQue that he had gone for the evaluation and said that he did not know whether any treatment had been recommended. DuQue told him that GLS had reported to her that he had denied treatment. According to DuQue, defendant became "agitated[.]" He indicated that he did not need treatment and was going to seek another evaluation.
Defendant met again with DuQue on October 2, 2007. He said that he had another evaluation performed by a counseling center in Woodbridge. Defendant later provided DuQue with a copy of the evaluation report by Rama Jiandani (Jiandani), in which Jiandani stated that, based on the information that defendant had provided to him, he had no reason to believe that defendant was currently abusing substances. Jiandani suggested, however, that defendant should be monitored weekly for substance abuse. DuQue noted that Jiandani's evaluation was "just based on [defendant's] answers."
Defendant also testified at the hearing. He said that there had been a misunderstanding about the conditions of PTI. On cross examination, he conceded that he signed the second page of the order of postponement with the conditions for the PTI program. He said, however, that he did not "really read" the order before signing it. He stated that he "listened to what [his] lawyer" told him about the order. According to defendant, his attorney told him that he would be required to have drug tests but did not mention treatment.
Defendant additionally testified that he did not have a problem with the evaluation. He said that he was going to get the evaluation but spoke to his lawyer and asked his advice. The attorney told him that he was not required to have the evaluation. Defendant acknowledged that DuQue told him that the court's order required the evaluation; however, after DuQue issued the termination letter, the attorney told him that he had to have the evaluation.
Defendant testified that he went to GLS for the evaluation. Defendant acknowledged that he disagreed with GLS's assessment. He stated that the reason why he refused treatment was because his attorney told him that he did not have to go through with it. He denied telling GLS that he did not feel that he needed treatment. Defendant said that he was not satisfied with the manner in which GLS had evaluated him.
On re-direct, defendant stated that he did not agree with GLS's treatment recommendations because it was "hard" for him "to take off work" for the time required by the treatment. He asserted, however, that he would make the time for treatment, if the court agreed to let him continue in the PTI program. Defendant testified that it was very important for him to avoid a criminal conviction because, if he were terminated from PTI, "the rest of [his] life will be really down the drain."
The court placed its decision on the record. The court determined that defendant's participation in PTI should be terminated. The court found that defendant was not a credible witness. The court also found that the there was a "clear requirement that [defendant] undergo a substance abuse evaluation and follow any recommendations."
The court additionally stated that defendant had been given multiple opportunities to comply with that requirement but he failed to comply and acted in an arrogant, defiant and negative manner. The court found that defendant had determined that the treatment program was "a waste of time[,]" and said that defendant was not someone who would benefit from the PTI program. The court noted that, while defendant ultimately had a substance abuse evaluation, he only did so "grudgingly . . . and after much prodding[.]"
In addition, the court stated that, after he was dissatisfied with the result, defendant had another evaluation with the hope that there would be "a different result." The court concluded that defendant's participation in PTI should be terminated because of his unwillingness to comply with the directions of the probation officer and his attitude of resistance. The court entered an order dated October 22, 2007, memorializing its decision.
Defendant was sentenced on January 18, 2008. The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court also found mitigating factors six, N.J.S.A. 2C:44-1(b)(6) (defendant will participate in a community service program); and ten, N.J.S.A. 2C:44-1(b)(10) (defendant is likely to respond affirmatively to probationary treatment). The court sentenced defendant to three years of probation; and ordered defendant to submit to drug screens at specified intervals, perform community service, and pay various fines and penalties.
Defendant filed an appeal from the judgment of conviction dated January 18, 2008. On March 31, 2009, the appeal was heard on our excessive sentencing calendar. We entered an order affirming the sentence but transferred the portion of the appeal relating to the defendant's termination from PTI to the plenary calendar.
Defendant first argues that the trial court abused its discretion by terminating his participation in PTI. Defendant contends that a substance abuse evaluation and treatment were not included in the PTI program requirements that were set forth on the record when he entered his plea. He maintains that he fulfilled all of the "legitimate conditions" of PTI, including the performance of community service and submission to drug tests. Defendant contends that he was wrongly terminated from PTI for non-compliance with conditions that were never supposed to have been imposed in the first place. We disagree with these contentions.
We note initially that we must defer to the findings of the trial court when those findings "'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Deference to the trial court's factual findings is especially appropriate, as in this case, when the court's findings were "'substantially influenced'" by the court's "'opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting Johnson, supra, 42 N.J. at 161).
Here, the trial court found that a substance abuse evaluation and compliance with treatment recommendations were requirements of the PTI program. Although those requirements were not clearly spelled out on the record when defendant entered his plea, defendant implicitly agreed to comply with all PTI program requirements when he chose to seek admission to that program. Moreover, by signing the court's order of postponement, defendant acknowledged that a substance abuse evaluation and treatment were PTI program requirements and he was required to comply with them.
As we stated previously, defendant testified that he did not read the court's order of postponement before he signed it. Defendant asserted that his attorney did not explain that he was required to have a substance abuse evaluation and follow the treatment recommendations resulting from the evaluation. The trial court found, however, that defendant's testimony was not credible. We are satisfied that there is sufficient credible evidence in the record to support the court's determination that a substance abuse evaluation and treatment were PTI conditions and defendant was required to comply with those conditions when he was admitted to the program.
We are also satisfied that there is sufficient credible evidence in the record to support the trial court's finding that defendant failed to comply with the conditions of the PTI program. It is undisputed that defendant initially refused to have the substance abuse evaluation, despite clear directions from the probation officer that he do so. Defendant had the first evaluation only after DuQue informed him that she would make an application to the court to terminate his participation in the PTI program. The testimony at the hearing established that GLS had recommended treatment and defendant refused to comply with that recommendation. Although defendant had Jiandani perform another substance abuse evaluation, and Jiandani did not conclude that defendant required treatment, the trial court properly noted that the results of Jiandani's evaluation were questionable because it was unclear what information defendant had provided to Jiandani.
In any event, the record established that defendant initially failed to have a substance abuse evaluation despite several directives from his probation officer that he do so. The record also established that although defendant was eventually evaluated by GLS, he refused to comply with GLS's treatment recommendations. We are convinced that, under these circumstances, the court did not abuse its discretion by terminating defendant's participation in PTI.
Accordingly, we affirm the trial court's order of October 22, 2007, terminating defendant's participation in the PTI program.
Defendant also argues that the State violated the rules governing PTI admission when it required him to enter a guilty plea. We agree. Rule 3:28, Guideline 4, provides in pertinent part that, "[e]nrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilty." "As the language of the Guideline makes clear, prosecutors are forewarned not to condition PTI enrollment upon admissions of guilt." State v. Maddocks, 80 N.J. 98, 106 (1979).
Here, the State erred by requiring defendant to plead guilty to count three of Indictment No. 06-06-258, "[i]n exchange" for the prosecutor's agreement to allow defendant to seek admission to PTI. In our judgment, defendant should not be bound to a plea entered into contravention of the PTI guidelines. Accordingly, the judgment of conviction must be vacated and defendant should be given the opportunity to withdraw the plea.
Affirmed in part, reversed in part and remanded to the trial court for further proceedings in conformity with this opinion.
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