Opinion
DOCKET NO. A-5974-13T1
05-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. M.P.R., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Simonelli, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 13-01-0018. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, on the brief). PER CURIAM
Defendant M.P.R. appeals from the denial of his application for entry into the Pretrial Intervention Program (PTI). Defendant was charged in a Gloucester County indictment with fourth-degree involvement in an accident resulting in serious bodily injury while driving with a suspended license, N.J.S.A. 2C:40-22(b). Defendant argues that in denying PTI admission, the prosecutor afforded undue weight to the offense, mischaracterized it as "violent" and "assaultive," and overlooked his amenability to rehabilitation. The State requests that we affirm the order.
Having considered the parties' arguments in light of the record and applicable law, we reverse the trial court's order but remand for further consideration. We do so because the prosecutor improperly gave great weight to the "violent" and "assaultive" nature of defendant's conduct. Under such circumstances, even if a patent and gross abuse of discretion has not been established, a remand is appropriate. See State v. K.S., 220 N.J. 190, 200 (2015). We also find that certain mandatory penalties associated with N.J.S.A. 2C:40-22(b) and the related motor vehicle violation, N.J.S.A. 39:3-40, were not imposed, thus rendering the sentences illegal.
I.
The basic facts are undisputed. On June 19, 2012, defendant was involved in a motor vehicle accident while driving during a period of license suspension that was imposed for a prior driving while intoxicated (DWI) conviction. An occupant of the other vehicle involved in the accident sustained a fractured sternum, broken rib, broken ankle, and a concussion. In addition to the N.J.S.A. 2C:40-22b violation, defendant was issued a series of motor vehicle summonses, including driving during a period of license suspension, N.J.S.A. 39:3-40.
Defendant applied for PTI on May 13, 2013. On June 10, the Criminal Division Manager rejected defendant's application, citing PTI Guideline 3(i) and "the potential violent nature of the offense and the serious bodily injuries sustained by the victim." In a one-page letter dated June 25, 2013, the Gloucester County Prosecutor's Office also rejected defendant's application for admission into PTI "for substantially the same reasons." Notably, the letter did not address any of defendant's personal history or background, or cite any factors that might weigh in favor of PTI.
Defendant timely appealed. On November 18, 2013, the day before the hearing, the assistant prosecutor submitted a letter memorandum to the court setting forth in greater detail the rationale for the prosecutor's rejection of defendant's application. Although the State also cited a number of other relevant factors, it continued to place significant emphasis on the nature of the offense and the injuries sustained by the accident victim. The prosecutor wrote that, "[b]y operating his vehicle during a period of suspension [defendant] was a[n] assaultive and violent danger to everyone and [the accident victim] was the person that suffered from that assaultive and violent danger."
In addition to the assaultive or violent nature of the offense, the prosecutor asserted that the following factors set forth in N.J.S.A. 2C:43-12(e) disfavored defendant's acceptance into PTI: factor seven, "the needs and interests of the victim and society"; factor eight, "[t]he extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior"; factor nine, "[t]he applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others"; factor eleven, "whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act"; factor fourteen, "[w]hether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution"; and factor seventeen, "[w]hether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program."
In connection with factor eight, quoted above, the prosecutor elaborated that "[defendant's] behavior is starting to show a pattern of anti-social behavior, as he refused to abide by the laws that are meant to keep society safe." As to factor nine, the prosecutor acknowledged that "[defendant] does not have a record, but he does present a substantial danger to others if his actions continue." With respect to factors eleven and fourteen, the prosecutor noted that defendant's suspension was based on an underlying DWI conviction and stressed that "[t]he problem of drunk driving is pervasive and corrosive in our society."
The court initially heard argument on November 19, 2013. Defense counsel contended that the charged conduct did not involve violence or a threat of violence, and that the additional factors advanced in the prosecutor's November 18 memorandum were not cited either by the Criminal Division Manager or by the prosecutor as a basis for defendant's initial rejection. Defense counsel also noted that defendant had no prior indictable convictions, and pointed to letters that were submitted attesting to defendant's gainful employment and the fact that he was recently approved by the City of Philadelphia to sit for its firefighter examination.
The court adjourned the hearing to afford defendant the opportunity to address the State's belated submission. The hearing resumed on January 28, 2014. Responding to the defense argument that the charged conduct involved a motor vehicle accident and not an act of violence, the prosecutor stated:
It's very simple, Your Honor, this defendant was suspended for driving while intoxicated. He was serving that suspension when this occurred.
The reason that we suspend people's license[s] who are driving drunk, is because them operating the motor vehicle is dangerous to society as a whole. That's why we suspend licenses in those cases. So, he was [] a threat at the time [] to commit another offense, and [] by getting in the car, you know, . . . that's the threat of violence in [] itself.
Let's say he was suspended for another reason. The State wouldn't be arguing at this point that he was a threat of violence. If he was suspended for parking tickets, or speeding, or something like that, . . . we wouldn't be here arguing . . . he was a threat of violence.
So, that's what we mean by threat of violence, Your Honor. He was suspended for driving while intoxicated; he's serving that suspension. This isn't too far out there -- I believe this was a first [DWI]. He was only suspended for, I believe, six or seven months. And, this has occurred in that time period.
That's the argument there.
The judge denied defendant's appeal, setting forth her reasons in an oral opinion. The judge found there were no factors submitted by the defense that the State failed to consider. The judge further found no "patent and gross abuse of discretion" by the State as to any of the relevant statutory factors, including its position that operating with a suspended license involves "an assaultive and violent danger to everyone." The judge noted that "[c]ountless lives are torn apart each year as a result of the accidents under these circumstances."
On February 24, 2014, defendant entered a conditional guilty plea to the fourth-degree charge of involvement in an accident resulting in serious bodily injury while driving with a suspended license, N.J.S.A. 2C:40-22b, and to the motor vehicle offense of driving while suspended, N.J.S.A. 39:3-40. Pursuant to the negotiated plea agreement, defendant preserved the right to appeal the PTI denial.
Defendant was sentenced on May 20, 2014, to a one-year term of probation and a six-month loss of driving privileges on the indictable offense. On the motor vehicle violation, the court imposed a concurrent six-month license suspension. Additional monetary fines and penalties were imposed on both offenses. This appeal followed.
II.
Defendant submits a single point for our consideration:
THE PROSECUTOR'S REJECTION OF [DEFENDANT'S] APPLICATION TO BE ADMITTED INTO PTI CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION.
Defendant argues that the State mischaracterized his conduct as "violent" and "assaultive," and that its reliance upon such conduct as demonstrating the beginning of a "pattern of anti-social behavior" was misplaced. Defendant further contends that the prosecutor erred in affording undue weight to the offense without conducting a meaningful review of his amenability to rehabilitation.
We first address our standard of review. "Issues concerning the propriety of the prosecutor's consideration of a particular [PTI] factor are akin to 'questions of law[.]'" State v. Maddocks, 80 N.J. 98, 104 (1979). "Consequently, on such matters an appellate court is free to substitute its independent judgment for that of the trial court or the prosecutor should it deem either to have been in error." Id. at 105; see also K.S., supra, 220 N.J. at 199 (holding that a prosecutor may not consider prior dismissed charges for any purpose in connection with a PTI application where the facts related to the arrest are in dispute or have not been determined after a hearing); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
While we exercise de novo review over the propriety of considering a certain PTI factor, we afford prosecutors "broad discretion to determine if a defendant should be diverted." K.S., supra, 220 N.J. at 199. This discretion arises out of the prosecutor's charging authority. Id. at 200. "Accordingly, to overturn a prosecutor's decision to exclude a defendant from the program, the defendant must 'clearly and convincingly' show that the decision was a 'patent and gross abuse of . . . discretion.'" Ibid. (alteration in original) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)).
We extend "enhanced" deference to the prosecutor's decision. State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148 N.J. 443-44 (1997)). The court's "severely limited" scope of review is designed to address "only the 'most egregious examples of injustice and unfairness.'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). Although the prosecutor's discretion is not unlimited, we will rarely overturn the rejection of a PTI applicant. State v. Brooks, 175 N.J. 215, 225 (2002), overruled in part by, K.S., supra, 220 N.J. at 199.
The PTI statute requires prosecutors to consider a non-exclusive list of seventeen criteria. N.J.S.A. 2C:43-12(e). These criteria "include 'the details of the case, defendant's motives, age, past criminal record, standing in the community, and employment performance[.]'" State v. Roseman, 221 N.J. 611, 621 (2015) (alteration in original) (quoting State v. Watkins, 193 N.J. 507, 520 (1996)). In rendering his or her decision, the prosecutor must "make an individualized assessment of the defendant" and consider whether the defendant is amenable to rehabilitation. Id. at 621-22 (citing Watkins, supra, 193 N.J. at 520).
A prosecutor must set forth his or her reasons for rejecting a PTI candidate. State v. Nwobu, 139 N.J. 236, 248-49 (1995). A prosecutor "may not simply 'parrot' the language of relevant statutes, rules, and guidelines." Id. at 249. Among other purposes, a detailed, defendant-specific statement of reasons enables a defendant to respond, promotes confidence in the prosecutor's decision-making, and facilitates judicial review. Ibid. The prosecutor may not weigh inappropriate factors or ignore appropriate factors. K.S., supra, 220 N.J. at 200.
To meet the "patent and gross abuse of discretion" standard to justify supplanting the prosecutor's decision, a defendant must satisfy one of three factors and must also show the prosecutor's decision undermines the purposes of PTI:
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. . . . In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.
[Roseman, supra, 221 N.J. at 625 (alteration in original) (quoting State v. Bender, 80 N.J. 84, 93 (1979).]
However, when a defendant has not met this high standard, but nonetheless has demonstrated an abuse of discretion, a remand is appropriate.
When a reviewing court determines that the "prosecutor's decision was arbitrary, irrational, or otherwise an abuse of discretion, but not a patent and gross abuse of discretion," the reviewing court may remand to the prosecutor for further consideration. Remand is the proper remedy when, for example, the prosecutor considers inappropriate factors, or fails to consider relevant factors.As the Court explained, this middle-ground preserves the exercise of the prosecutor's discretion, while assuring that the PTI standards are properly employed. Ibid.
[K.S., supra, 220 N.J. at 200 (citation omitted) (quoting State v. Dalglish, 86 N.J. 503, 509 (1981)).]
Applying these principles, we conclude that the trial judge erred in sustaining the prosecutor's decision that was based, at least in substantial part, upon consideration of an inappropriate factor. Specifically, the court erred in accepting the prosecutor's contention that defendant's conduct was "violent" and "assaultive."
The Supreme Court has promulgated Guidelines accompanying Rule 3:28 that work in harmony with the seventeen individual factors listed in N.J.S.A. 2C:43-12(e). Pertinent here, factor ten provides that consideration must be given to "[w]hether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior." N.J.S.A. 2C:43-12(e)(10). This standard is qualified under Guideline 3(i)(3) so as to normally exclude applicants whose crime was "deliberately committed with violence or threat of violence against another person."
In State v. Caliguiri, 305 N.J. Super. 9 (App. Div.), certif. granted and remanded for reconsideration, 152 N.J. 186 (1997), decision on remand, 308 N.J. Super. 214 (1998), affirmed and modified, 158 N.J. 28 (1999), defendant Munos was charged with assault by auto, N.J.S.A. 2C:12-1c, following a motor vehicle accident in which he and his passenger were injured. Even though the evidence showed that Munos had consumed alcohol, we found "no aggravating factor of extreme intoxication," nor any other "claim of speeding, weaving, horseplay or other reckless driving factors." Id. at 17. Accordingly, we affirmed the trial court's determination that denial of PTI under such circumstances "was a patent mistaken exercise of discretion."
We note that, after both Caliguiri and the present case were decided, N.J.S.A. 2C:43-12(b)(2) was amended to provide that:
There shall be a presumption against admission into [PTI] for:
. . .
(b) a defendant charged with any crime or offense involving domestic violence . . . if the crime or offense charged involved violence or the threat of violence. For purposes of this subparagraph, a crime or offense involves violence or the threat of violence if the victim sustains serious or significant bodily injury as defined in subsection b. or d. of N.J.S.A. 2C:11-1. . . .
[L. 2015 C. 98, ¶4, eff. Aug 10, 2015.]
Here, the offensive conduct was defendant's act of driving and becoming involved in an automobile accident at a time when his license was suspended due to a DWI conviction. Certainly, our decision here is not meant to diminish the significance of penalties that are imposed pursuant to a DWI conviction. Nor should we be understood to condone an individual's willful disregard of such penalties, including a period of driver's license suspension. Nevertheless, while arguably contemptuous, we do not accept the State's contention that the mere act of driving while suspended under such circumstances is inherently "violent" or "assaultive" in nature. That is especially the case here where, as the State concedes, there is no evidence of any alcohol or drug consumption by defendant that caused the subject accident. Nor, as in Caliguiri, supra,, 305 N.J. Super. at 17, is there any evidence in the record that defendant willfully and wantonly operated his vehicle in a manner that was likely to result in injury to himself or others, notwithstanding that he may have been "at fault" in the accident.
We note that the "violent" nature of the offense that led to the accident victim's injuries was the sole and exclusive reason cited by the Criminal Case Manager in rejecting defendant's PTI application. It was also the only factor originally posited by the State for denial. Although the State subsequently advanced other factors, it continued to place much emphasis on its erroneous characterization of the nature of the offense as "violent" and "assaultive."
We are thus persuaded that the prosecutor clearly relied on an inappropriate factor. However, we shall not substitute our judgment for the prosecutor in determining whether to admit defendant into PTI. Consequently, although we reverse the trial court's order denying defendant's admission into PTI, we remand to the prosecutor to reconsider defendant's application without regard to the factor erroneously relied upon.
This does not, however, conclude our analysis. Rather, it further appears that no consideration was given to the significant penalties, including jail time, that defendant also faced on the related motor vehicle charge, nor did the court ultimately impose them. In addition to the general penalties, when a person convicted for driving while suspended "is involved in an accident resulting in bodily injury to another person," "the court shall impose a period of imprisonment for not less than 45 days or more than 180 days." N.J.S.A. 39:3-40(e). Also, when the suspension is based on a DWI conviction, he or she "shall be fined $500, shall have his [or her] license . . . suspended for an additional period of not less than one year or more than two years, and shall be imprisoned in the county jail for not less than [ten] days or more than [ninety] days." N.J.S.A. 39:3-40(f)(2).
The record before us indicates that defendant was serving a suspension for DWI when he was involved in an accident that resulted in bodily injury to another person. Under the sentencing provisions of N.J.S.A. 39:3-40, he was thus subject to mandatory penalties that included an additional one-year license suspension and imprisonment for a period ranging between 45 days and 270 days. Further, upon defendant's conviction for violating N.J.S.A. 2C:40-22(b), the court was required to suspend his driver's license "for an additional period of one year, in addition to any suspension applicable under [N.J.S.A.] 39:3-40, [which] shall be consecutive to any existing suspension or revocation."
"[A] truly 'illegal' sentence can be corrected 'at any time.'" State v. Acevedo, 205 N.J. 40, 47 n.4 (2011) (quoting R. 3:21-10(b)(5)). "[A]n illegal sentence is one that 'exceeds the maximum penalty provided in the Code for a particular offense' or a sentence 'not imposed in accordance with law.'" Id. at 45 (quoting State v. Murray, 162 N.J. 240, 247 (2000))." Here, the court only imposed six-month concurrent license suspensions, rather than the additional one-year suspensions mandated under both N.J.S.A. 2C:40-22(b) and N.J.S.A. 39:3-40. Further, it was requisite that the license suspension attendant to the N.J.S.A. 2C:40-22(b) violation run consecutive to any existing suspension. The court also failed to impose the mandatory jail terms prescribed by N.J.S.A. 39:3-40(e) and (f)(2). Accordingly, remand is required for the additional purpose of correcting these illegal sentences. On remand, the State may consider the effect of the mandatory jail sentence defendant must serve on the traffic violation, to the extent it may bear on the continued need for defendant's criminal prosecution and the prosecutor's decision to either approve or reject defendant's PTI application.
We note that PTI is inapplicable to Title 39 motor vehicle offenses. State v. Mosner, 407 N.J. Super. 40, 54 (App. Div. 2009). See also State v. Negran, 178 N.J. 73, 83 (2003). We have also held that, under appropriate circumstances, a prosecutor may properly condition a defendant's admission to PTI, for a fourth—degree assault by motor vehicle, upon a guilty plea to a related motor vehicle charge carrying a mandatory term of imprisonment. Mosner, supra, 407 N.J. Super. at 56-57. --------
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Notably, the Legislature did not extend the presumption against admission into PTI beyond domestic violence offenders whose conduct, among other things, results in the victim sustaining serious or significant bodily injury.