Opinion
DOCKET NO. A-0008-14T3
04-14-2015
STATE OF NEW JERSEY, Plaintiff-Appellant/Cross-Respondent, v. BONNIE OLIVER-ALLAMONG, Defendant-Respondent/Cross-Appellant.
James P. McClain, Atlantic County Prosecutor, attorney for appellant/cross-respondent (John Santoliquido, Assistant Prosecutor, of counsel and on the brief). Michael H. Schreiber, attorney for respondent/cross-appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Haas and Higbee. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-10-2769. James P. McClain, Atlantic County Prosecutor, attorney for appellant/cross-respondent (John Santoliquido, Assistant Prosecutor, of counsel and on the brief). Michael H. Schreiber, attorney for respondent/cross-appellant. PER CURIAM
The State appeals from the September 11, 2014 order of the Law Division granting defendant's "motion to impose a non-custodial sentence despite the presumptions of N.J.S.A. 2C:43-6c . . . ." Defendant cross-appeals from the court's denial of her request to be admitted to the pre-trial intervention program (PTI). Our ability to review the contentions raised by the parties has been severely hampered by the poor state of the record the parties developed before the Law Division. As a result of the many deficiencies in the record, and the errors we discern in the manner in which this matter was addressed, we are constrained to reverse and remand for further proceedings.
Although the parties did not stipulate to the facts underlying the offense at issue in this case, we are able to glean the following from the record. On January 30, 2013, defendant was at work in Cape May County, when she received a telephone call from her sister, K.O., who was living in Galloway Township, Atlantic County. K.O. told defendant she was being assaulted by her boyfriend, L.M. Defendant asked K.O. if she wanted her to call the police, but K.O. instructed defendant not to do so.
In order to protect the privacy of the individuals who are not parties to this appeal, we use initials to identify them.
Defendant decided to drive to her sister's home. On the way, she stopped at her house where she retrieved a handgun and placed it in her car. Defendant possessed a valid Firearms Purchaser Identification Card, but did not have a permit allowing her to carry the handgun. At her home, defendant also picked up her two adult children and a family friend and drove to K.O.'s home.
Upon arriving at K.O.'s home, defendant left the handgun in her car, and she and her three companions entered the house. Defendant told the police that K.O. "was at the computer and [L.M.] was in the kitchen." L.M. asked defendant, "'what the fuck are you doing here?'" Defendant told L.M. that K.O. "called me and asked me to come because she wanted [L.M.] out." Defendant stated that L.M. "came towards her in a threatening manner" and "she put her hand on his chest to stop him . . . ." Defendant's son got between defendant and L.M. and "they began to exchange words and it became physical."
At that point, defendant left the house, went to her car, and retrieved her handgun. When she returned to the house with the handgun, L.M. and defendant's son were no longer fighting. Defendant told the police she did not point the handgun at L.M., but kept it by her side as she told him to leave the house. After seeing the handgun, L.M. called the police. Defendant "turned around, put the gun under her jacket and walked out of the house. She said when she got outside she took the magazine out of the gun . . . and placed the gun on the hood and waited for the police."
The parties dispute whether defendant pointed the handgun at L.M.
The presentence report states that when the police officers arrived, they "ordered [defendant] to the ground at gun point. Initially[,] she refused saying the ground was wet. The officers ordered her a second time and she complied." The officers asked defendant "where the gun was and she stated it was on the hood of" her car. The officers then seized defendant's handgun and two empty magazines from the hood of the car.
Additional officers responded to the scene and, once defendant "was secured[,] the occupants of the residence were ordered outside. A total of five people came out of the house and were placed into prone positions on the ground and handcuffed for safety reasons." After the officers secured the scene, "the recovered weapon was cleared and was found to have one round in the chamber."
On January 30, 2013, the police charged defendant with possession of "a .22 caliber Ruger Mark I handgun with the intent to intimidate [L.M.] at his residence during a domestic [incident] with [defendant's] sister in violation of [N.J.S.A.] 2C:39-4a." This is a Graves Act offense which, pursuant to N.J.S.A. 2C:43-6c, subjected defendant to a mandatory minimum term of imprisonment, which "shall be fixed at one-half of the sentence imposed by the court or 42 months, whichever is greater[.]"
Defendant had no prior criminal record. Thus, she was eligible to have her offense reviewed under the "escape valve" provision of N.J.S.A. 2C:43-6.2. That statute
provides that where a defendant has not been previously convicted of a Graves Act offense, and where the . . . mandatory minimum "does not serve the interests of justice," the prosecutor may move before the Assignment Judge for a reduced mandatory minimum term of one year, or to place the defendant on probation with the condition of a jail term pursuant to N.J.S.A. 2C:43-2b(2).
[State v. Watson, 346 N.J. Super. 521, 535 (App. Div. 2002), certif. denied, 176 N.J. 278 (2003).]
On March 27, 2013, defendant's attorney sent a letter to the county prosecutor asking that he consider filing a motion to permit a waiver of the Graves Act so that defendant could be sentenced to a reduced mandatory minimum term under N.J.S.A. 2C:43-6.2, placed on probation, or possibly admitted into PTI. On July 21, 2013, the prosecutor sent a letter to defense counsel, denying the request. The prosecutor reviewed the facts underlying defendant's arrest, and found that defendant's "possession of this weapon under these circumstances establish[es] that this is the type of 'heartland' case envisioned as not being amenable to lenient treatment in the Attorney General Guidelines governing Graves Act offenses."
On October 23, 2008, the Attorney General issued an Attorney General Directive to Ensure Uniform Enforcement of the "Graves Act" (Attorney General Guidelines). The Guidelines provide prosecutors with direction on how they should review applications filed by defendants for Graves Act waivers, and the standards that must be applied in resolving these applications.
In addition to considering the Attorney General Guidelines, the prosecutor also examined the applicable aggravating and mitigating factors, and found that there was a risk defendant would commit another offense and a "need for general and specific deterrence[.]" While the prosecutor noted that defendant had no prior record, he was unable to apply any other mitigating factors. Thus, the prosecutor denied defendant's "request to remove this matter from within the mandatory penalties of the Graves Act."
On October 17, 2013, an Atlantic County grand jury issued a two-count indictment charging defendant with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count one); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c(2) (count two).
Although the parties agree that defendant carried a handgun during the incident, both counts of the indictment refer to the weapon as a "Ruger Rifle Semi Automatic Pistol," and N.J.S.A. 2C:39-5c(2), as charged in count two, refers to loaded rifles and shotguns, rather than to handguns. It appears that the proper charge would have been N.J.S.A. 2C:39-5b(1), which applies to the unlawful possession of handguns.
On March 26, 2014, defendant pled guilty to count two of the indictment. However, although this was listed as a third-degree offense in the October 17, 2013 indictment, both the plea form and the transcript of the plea colloquy state that defendant pled guilty to second-degree unlawful possession of a weapon, rather than to a third-degree offense. The record does not indicate whether the parties agreed to amend the indictment, or whether the third-degree listing in the indictment was merely an error.
The plea form lists the offense to which defendant pled as a second-degree offense. At the plea hearing, the judge also asked defendant, "Do you in fact understand what's happening here. You're entering a guilty plea to a second-degree charge of unlawful possession of a handgun?" Defendant replied, "Yes, sir."
In return for defendant's plea of guilty to count two, the State agreed to dismiss count one of the indictment and to recommend that defendant be sentenced to three years in prison, with a one-year period of parole ineligibility, a partial Graves Act waiver. Defendant retained the right to appeal the prosecutor's earlier denial of her request for a Graves Act waiver to the Assignment Judge or his designee.
On May 29, 2014, defendant filed a motion "for an Order granting defendant's appeal of the [October 17, 2013] denial of her application for a Graves Act waiver" by the prosecutor. We have previously held that, if the prosecutor does not consent to a defendant's request to be sentenced pursuant to the escape valve provision of N.J.S.A. 2C:43-6.2, "the defendant may [appeal the denial of the waiver] by arguing to the Assignment Judge that the prosecutor's refusal is a patent and gross abuse of discretion." Watson, supra, 346 N.J. Super. at 535; see also State v. Alvarez, 246 N.J. Super. 137, 147 (App. Div. 1991). "In Alvarez, supra, we held that [to succeed on such a motion] a defendant must make a showing that 'the prosecutor arbitrarily or unconstitutionally discriminated against a defendant in determining whether the "interests of justice" warrant reference to the Assignment Judge' for sentencing under the 'escape valve.'" State v. Mastapeter, 290 N.J. Super. 56, 65 (App. Div. 1996) (citing Alvarez, supra, 246 N.J. Super. at 147).
In the vicinage involved in this case, the Assignment Judge has delegated responsibility for handling appeals involving the prosecutor's denial of Graves Act waiver applications to the Criminal Division presiding judge. That judge, who was not the same judge who presided over the March 26, 2014 plea proceedings, scheduled oral argument on defendant's motion for August 19, 2014.
At the motion argument, defense counsel contended that his client should be admitted to PTI. While the judge ultimately sentenced defendant to a county jail term, plus probation, he did not expressly deny defendant's request and did not make any specific findings of fact or conclusions of law concerning her eligibility for PTI at that late point in the proceedings.
During colloquy on the motion, the judge stated that the indictment incorrectly stated that the weapon was a rifle. He also stated that "it should've been indicted as a second degree. Okay. It was indicted wrong." The presentence report confirms that "[t]he plea agreement indicates the [defendant pled] guilty to a second[-]degree offense," but nevertheless lists the charge to which defendant pled as a third-degree offense. The September 11, 2014 judgment of conviction also lists count two as a third-degree offense, rather than as the second-degree offense to which defendant pled.
In State v. Frangione, we held that once a defendant enters a guilty plea, he or she is no longer eligible for PTI. Supra, 369 N.J. Super. 258, 261 (App. Div. 2004). Our decision in Frangione was recently cited with approval by the Supreme Court in State v. Bell, where the Court held that PTI "is not available to a defendant once the charges have been tried before a jury and a guilty verdict has been returned." Supra, 217 N.J. 336, 338, 344 (2014). Here, the record does not indicate that defendant filed a timely PTI application before pleading guilty.
In his colloquy with defense counsel concerning PTI, however, the judge did express his view that the "PTI standard of arbitrary and capricious" is a different standard of review than what is applied in Graves Act waiver appeals. The judge stated that, in order to overturn the decision, a defendant must show that the prosecutor's denial of the waiver was "unconstitutionally discriminatory or [a] denial of equal protection."
As noted above, however, "a defendant must make a showing that 'the prosecutor arbitrarily or unconstitutionally discriminated against a defendant in determining whether the "interests of justice" warrant reference to the Assignment Judge' for sentencing under the 'escape valve.'" Mastapeter, supra, 2 90 N.J. Super. at 65 (citation omitted). Based upon the judge's statement about the PTI arbitrary and capricious standard not being applicable in Graves Act cases, we are not certain that he found that the prosecutor acted arbitrarily in denying defendant's request for a total Graves Act waiver.
The Mastapeter standard also addresses the question of whether a prosecutor has unconstitutionally discriminated against a defendant by denying his or her application under N.J.S.A. 2C:43-6.2. In this case, the judge stated that he had "open[ed] up the files" of prior Graves Act waiver cases in the vicinage to defense attorneys so that they could search for cases where the prosecutor or a judge had approved a waiver for a similarly-situated defendant. However, the judge never stated what specific records were made available. For example, nothing in the appellate record reveals the time period covered by the "discovery" provided by the judge; the number of total waiver cases that were part of the discovery; or the source of the records.
It also does not appear that consistent documentary information was available for each of the four individual cases that defense counsel believed were comparable to defendant's offense. For example, in the Terpolilli matter, defense counsel submitted the first page of a judgment of conviction (JOC), a criminal complaint, and the defendant's criminal record. In the Drummond and Lewis cases, the "file" consisted only of a police report. For the Octavius case, defense counsel submitted a complete JOC, but no further materials.
The judge did not mark any of the documents defendant presented into evidence as exhibits.
From this meager documentation, there is no way of determining, for each case, what aggravating and mitigating factors were applied; the terms of the plea agreement; or the process through which a waiver was approved. The defendants' pre-sentence report, or transcripts of their plea or sentencing proceedings, were also not part of the discovery. Such documents would have provided important information concerning the details of the allegedly comparable offenses and the possible reasons for any waiver granted.
In the September 11, 2014 JOC, the judge stated that he had "gone through the prior cases that have been decided by this Prosecutor and Prosecutors from other states [sic]." However, the specific cases or materials he reviewed were not disclosed in the record.
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The record indicates that defense counsel only found four cases in the vicinage where he believed a defendant, who was similarly situated to his client, obtained a full Graves Act waiver or a better plea offer than was provided to his client. However, the record does not reflect whether there were other cases, not produced by defense counsel or the State, where a similarly-situated defendant received the exact same treatment as the defendant in the current appeal. For example, we do not know whether there were five, ten, twenty, or no instances where a defendant with a similar record and circumstances to defendant was also denied a full Graves Act waiver. Without that information, there is no meaningful way of determining whether the prosecutor's determination in this case deviated from that made in other Graves Act waiver applications not brought to the court's attention by the parties.
Of the four cases defendant presented, the judge focused his attention on the Terpolilli matter, which he found the most similar to defendant's situation. As noted above, the documents presented concerning this case do not disclose the factual background for the charge. At oral argument, defense counsel stated, apparently based on what he had been told by a colleague, that the defendant in that case had gotten into an argument with the victim, and pointed a gun at him. The victim then called the police and followed the defendant's truck until he was stopped. The police found a loaded handgun in the truck. Although no plea documents were available, defense counsel represented that the prosecutor granted the defendant a Graves Act waiver and, according to the incomplete JOC presented, the defendant was sentenced to three years of probation and 364 days in jail.
The acting prosecutor explained at oral argument that the waiver was granted in the Terpolilli matter because there were "proof issues" in the State's case that might have prevented a conviction. However, the judge found this explanation insufficiently detailed to support treating defendant in the present case more strictly than Mr. Terpolilli.
In his decision, the judge stated that, "as the sentencing judge," he did not believe it was likely that defendant would commit another offense, and he stated that additional mitigating factors should be found. The judge explained that L.M. "caused" defendant's conduct "by doing what he was doing with [K.O.] and facilitated and had a lot to do with the commission of the overall argument that brought her there." He also found that: a prison sentence would entail an excessive hardship to defendant and her adult dependents; her conduct was the result of circumstances unlikely to reoccur; defendant would respond well to probation; and defendant had cooperated with law enforcement because she did not attempt to flee the scene after L.M. called the police to report that defendant had brought a handgun into K.O.'s house.
The judge concluded the proceeding by stating, "as the sentencing judge, okay, as the sentencing judge -- not what I think the prosecutor should've done or whatever -- but as the sentencing judge," defendant should be sentenced to three years of probation, and 275 days in the county jail. The judge also ordered that defendant could serve her sentence in a non-custodial setting, such as a home detention program or a "Day Reporting Program."
On August 25, 2014, the State filed its notice of appeal, even though the judge had not yet issued an order or the JOC. Defendant also filed her cross-appeal. On September 11, 2014, the judge entered an order granting defendant's motion for a non-custodial sentence "despite the presumptions of N.J.S.A. 2C:43-6c[.]" The judge also filed a JOC, in which he stated that the mitigating factors he found "clearly and substantially outweigh the sole [a]ggravating [f]actor." Citing N.J.S.A. 2C:44-1f(2), the judge stayed the execution of the sentence pending appeal. Neither the September 11, 2014 order or JOC addressed defendant's request for admission into PTI. The State and defendant then filed amended notices of appeal.
On appeal, the State argues that the judge erred in granting defendant's motion to overturn the prosecutor's denial of her Graves Act waiver application. In response, defendant contends that the judge properly granted her motion, but argues in her cross-appeal that the judge should have admitted her into PTI. However, as we stated at the outset, we are unable to review the arguments presented due to the errors and deficiencies in the record that we have extensively detailed above. Therefore, we vacate the September 11, 2014 order and JOC in all respects and remand for reconsideration, following the further proceedings we order here. For the guidance of the court and the parties on remand, we set forth the following specific instructions.
The judge who considers defendant's application shall apply the appropriate standard of review as discussed herein. To reiterate, in Alvarez and Mastapeter, "we held that [to succeed on such a motion] a defendant must make a showing that 'the prosecutor arbitrarily or unconstitutionally discriminated against a defendant in determining whether the "interests of justice" warrant reference to the Assignment Judge' for sentencing under the 'escape valve.'" Mastapeter, 290 N.J. Super. at 65 (emphasis added) (citation omitted). The judge must make detailed findings of fact and conclusions of law supporting the decision on the merits of defendant's application.
If the judge "opens the files" and permits "discovery" regarding prior waiver act applications, the judge shall ensure that the parties fully disclose the entire universe of the cases reviewed, both in terms of the number of waivers granted in the vicinage, and the circumstances of each case. For example, the discovery of a single case where a single similarly-situated defendant received a full Graves Act waiver may or may not be significant, depending on whether there were also numerous similarly-situated defendants who did not. Thus, the record developed by the parties must reflect all of the cases reviewed, and an identification of all the cases where the defendants are similar to the defendant in this case, regardless of the outcome of their waiver applications.
The parties must also provide consistent documentation for each of the cases they present to the judge for consideration. For example, if a JOC is submitted for one case, a complete JOC should be submitted in all of them. The documentation submitted must sufficiently detail the circumstances of the offense so that, as happened here, the parties and the judge do not have to rely upon their personal, and often imperfect, recollections of a particular matter.
The judge should also consider the need for an evidentiary hearing on remand. The judge in this case found that the assistant prosecutor did not give an adequate explanation for why the defendant in Terpolilli received a waiver. However, the acting prosecutor stated there were proof problems in the case that might have prevented a conviction. If the judge did not believe the explanation offered or needed additional information to review it, an evidentiary hearing should have been ordered. Because we are unsure why the judge rejected the prosecutor's explanation, however, we leave it to the judge to determine whether an evidentiary hearing is necessary.
During oral argument on her Graves Act application, defendant asked the judge to admit her into PTI. The judge did not make any specific findings concerning this request. Nevertheless, the record indicates that defendant pled guilty before filing an application for PTI and, therefore, she was not eligible for this pretrial diversionary program. Bell, supra, 217 N.J. at 338; Frangione, supra, 369 N.J. Super. at 261. However, because the record is not absolutely clear as to the timing of defendant's request for PTI, we do not preclude her from renewing this request on remand. If defendant does so, the judge shall consider it in light of these two precedents, and make detailed findings of fact and conclusions of law explaining the disposition of the application.
The parties should also address the inconsistencies between the indictment, the plea form, the plea colloquy transcript, the presentence report, and the JOC regarding the degree of the offense to which defendant pled. The plea materials indicate that defendant knowingly pled to a second-degree offense. Therefore, the presentence report and JOC should be corrected to reflect this. However, if defendant now disputes that she pled guilty to a second-degree offense, the judge shall consider her arguments on the remand.
Finally, we address defendant's claim that we lack jurisdiction to consider the State's appeal. Defendant contends that, absent "explicit statutory authority, the State has no right to appeal a sentence." State v. Cannon, 128 N.J. 546, 573 n.13 (1992). Therefore, she asserts that the State's appeal should be dismissed. We disagree.
As the State points out, N.J.S.A. 2C:44-1f(2) permits the State to appeal a sentence where a judge sentences a defendant convicted of a second-degree offense "to a term appropriate to a crime of one degree lower than that of the crime for which [s]he was convicted." The State may also file an appeal under this statutory provision if the judge imposes a non-custodial or probationary sentence upon a defendant's conviction of a second-degree crime.
Here, defendant pled to a second-degree offense. While the State agreed that defendant should be sentenced to three years in prison, with one year of parole ineligibility, a legal third-degree sentence, it did not agree to a Graves Act waiver permitting a county jail sentence, which the judge directed could be served in a non-custodial setting, such as a home detention or day reporting program. See State v. Harris, 439 N.J. Super. 150, 160 (App. Div. 2015) (holding that these types of "'alternative program[s]'" are non-custodial in nature). Thus, the State was permitted to appeal defendant's sentence and it did so in a timely manner. N.J.S.A. 2C:44-1f(2).
We also note that the judge was aware of the State's intent to file an appeal from any adverse decision, both from his comments during oral argument and his citation to N.J.S.A. 2C:44-1f(2) in the JOC, and from his decision to stay the sentence to permit the State to file an appeal. Under these circumstances, we are confident that the judge would not have immediately proceeded to sentence defendant if he thought this action would impede the State's ability to seek review of his decision on defendant's motion. Therefore, we reject defendant's contention that we lack jurisdiction to consider the State's appeal.
In sum, on both the State's appeal and defendant's cross-appeal, we reverse and remand for further proceedings. In thus reversing and remanding, we emphasize that we express no view as to the merits of defendant's application.
Reversed and remanded for further proceedings consistent with this opinion. 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