Opinion
DOCKET NO. A-3854-14T2
09-07-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEANETTE DIXON, Defendant-Appellant.
Helmer, Conley & Kasselman, P.A., attorneys for appellant (Patricia B. Quelch, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Keri-Leigh Schaefer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-01-0208. Helmer, Conley & Kasselman, P.A., attorneys for appellant (Patricia B. Quelch, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Keri-Leigh Schaefer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the denial of her application to the pretrial intervention program (PTI). We reverse and remand the matter for further proceedings.
Defendant was a forty-five-year old attorney and a divorced mother of three with no prior record of juvenile adjudications or criminal convictions when she was arrested and charged with second-degree robbery and aggravated assault along with three co-defendants. The State's theory of the underlying events differed sharply from the version given by defendant when she provided a factual basis for her subsequent guilty plea to third-degree theft pursuant to a plea agreement.
The State's version relies upon the initial report the victim made to the police two days after the assault. According to the victim, he had gone out with defendant's boyfriend the prior evening, returning home at 10:00 a.m. He reported that defendant came to his house, accompanied by three of his male coworkers. He went outside to speak to them. They asked for the whereabouts of defendant's boyfriend. Defendant asked for the victim's cellphone. When he replied that it was inside the house, defendant dialed the number and the phone rang in the victim's pocket. Defendant then ordered the other three to "get his phone." Two of the men grabbed the victim while the third punched him in the face four or five times, breaking his jaw. They left the area with the victim's cellphone and returned shortly thereafter to tell him they would return his cellphone if he told them where defendant's boyfriend was. The victim decided to take them to defendant's boyfriend.
Defendant surrendered and denied assaulting the victim or directing the others to take his cellphone. Nonetheless, she entered into a plea agreement in which it was anticipated that her guilty plea to a lesser offense would be followed by an application to PTI. The State recommended probation as a sentence and did not object to her making an application to PTI out of time. The State made no representation as to whether the application would succeed.
Defendant provided the following factual basis for her plea to third-degree theft through her answers to the prosecutor's questions:
Q. Miss Dixon, I call your attention to August 8, 2013. Were you in the Borough of Keansburg, New Jersey on that date?
A. Yes.
Q. And on that occasion, did you have - - did you come into contact with the . . . victim in this matter . . . .
A. Yes.
Q. When you arrived on the scene . . . of that event, [the victim] was being assaulted by the codefendants, [J.M.], [R.G.] and [R.M.].
A. Yes.
Q. Is that correct?
A. Yes.
Q. Did you subsequently come to learn your codefendants had taken [the victim's] phone from him in the course of that event?
A. Yes.
Q. All right. [sic] And were you aware of that fact?
A. Yes.
Q. And you discussed the fact that they had taken the phone from [the victim] and discussed the fact that it wouldn't be given back to him. Is that correct?
A. Yes.
The prosecutor asked no further questions and the trial court found this to be an adequate factual basis for the guilty plea. The probation officer who reviewed defendant's PTI application recommended that it be accepted, notwithstanding her conclusion that defendant appeared to be "a manipulative young lady" who "appear[ed] to be the ring leader in this offense, involving three young men who became her co-defendants and who were her intoxicated boyfriends [sic] employees." The prosecutor rejected defendant's PTI application.
In the memorandum setting forth the reasons for the rejection, the prosecutor said the State had considered the positive factors in the defendant's application and found them significantly outweighed by negative factors that rendered defendant an inappropriate candidate for PTI. The prosecutor cited three reasons for the denial. The first factor noted was the facts of the case, N.J.S.A. 2C:43-12(e)(2):
The facts of this case show that the defendant and co-defendants were all involved in assaulting and robbing the victim in this case. They stole his cell phone and held him while he was assaulted and injured. They left him in need of medical treatment. According to the facts this defendant first approached the victim, questioned him and then ordered the others to get his cell phone. . . . This is not a victimless offense but one in which the victim suffered much physical, emotional and financial injury as a result of the defendants [sic] actions.
[(Emphasis added).]
The second factor cited by the prosecutor was the motivation and the age of the defendant, N.J.S.A. 2C:43-12(e) (3). The prosecutor noted that it was "of concern" to the State that defendant had presented toilet water rather than a urine sample when asked to submit to a drug test and, after being confronted, admitted she had smoked crack cocaine three days earlier. Based upon this incident, the prosecutor stated:
Clearly the defendant lacks the motivation to succeed in PTI. With this type of attitude and behavior it appears that she is in need of far greater services than can be
provided through the limited time constraints and resources of PTI.
The third factor cited by the prosecutor was N.J.S.A. 2C:43-12(e)(10), "[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." The prosecutor stated:
Given the fact that four defendants acted together and converged upon the victim, held him down and assaulted him in the face, the potential for further injury or even the loss of one of his senses was great and cannot be ignored.
[(Emphasis added).]
The trial judge affirmed the prosecutor's rejection.
In this appeal, defendant argues the prosecutor's rejection was a patent and gross abuse of discretion because it was based upon consideration of invalid factors. We agree.
Our review of a prosecutor's decision to reject a PTI applicant is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003); State v. Nwobu, 139 N.J. 236, 246 (1995). "[C]ourts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial," Negran, supra, 178 N.J. at 82; Nwobu, supra, 139 N.J. at 246, affording the prosecutor's decision "enhanced" deference. Negran, supra, 178 N.J. at 82; State v.Baynes, 148 N.J. 434, 443-44 (1997) (citation omitted).
The prosecutor's decision to accept or reject a PTI application may be overruled "only when the circumstances "clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion." State v. Roseman, 221 N.J. 611, 624-25 (2015) (alteration in original) (quoting State v. Wallace, 146 N.J. 576, 582 (1996). The Supreme Court defined "patent and gross abuse of discretion" as follows:
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 judgement. 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.See also Roseman, supra, 221 N.J. at 625.
[State v. Bender, 80 N.J. 84, 93 (1979).]
In State v. K.S., 220 N.J. 190 (2015), the Court found such a patent and gross abuse of discretion. One of the challenges to the decision to reject the PTI application was that the prosecutor improperly relied upon the defendant's record of dismissed charges. Id. at 196. The Court concluded that such information was not properly considered:
Proper consideration requires more than a prior arrest when the identified information is reviewed in connection with the rejection of a Pretrial Intervention application. The prosecutor and program director may not infer guilt from the sole fact that a defendant was charged, where the charges were dismissed. For the prior dismissed charges to be considered properly by a prosecutor in connection with an application, the reason for consideration must be supported by undisputed facts of record or facts found at a hearing. Neither are present here.
Accordingly, we hold that when no such undisputed facts exist or findings are made, prior dismissed charges may not be considered for any purpose.
[Id. at 199 (emphasis added).]
Here, the offense-related facts the prosecutor could properly consider were those that were "undisputed facts of record or facts found at a hearing." See ibid. Although defendant was initially charged with second-degree aggravated assault and second-degree robbery, those charges were dismissed pursuant to the plea agreement. In her plea colloquy, defendant stated that when she arrived at the victim's home, the victim was being assaulted by her codefendants, that she subsequently learned her codefendants took the victim's phone from him during the course of the assault, and that she "discussed the fact that they had taken the phone from [the victim] and discussed the fact that it wouldn't be given back to him." Essentially, defendant admitted to being present at the scene of an offense committed by others and discussing the offense with her codefendants afterward. These "admissions" were insufficient to establish a factual basis for a guilty plea to theft. Nonetheless, the State did not dispute them. Because the victim's version is neither undisputed nor facts found at a hearing, the facts admitted by defendant that purportedly provided the factual basis for her guilty plea constitute the undisputed facts of record here.
We note that in the factual basis codefendant J.M. provided for his guilty plea, he stated defendant was not present when he assaulted the victim by punching him in the face. --------
The effect of defendant's statements is to contradict rather than provide support for the State's assertions that she was one of "four defendants [who] acted together and converged upon the victim, held him down and assaulted him in the face"; that she and her codefendants "were all involved in assaulting and robbing the victim"; that it was defendant who "first approached the victim, questioned him and then ordered the others to get his cell phone"; and that "the victim suffered much physical, emotional and financial injury as a result of the defendants [sic] actions." In short, the State inferred defendant's guilt of the charges initially lodged against her based upon the victim's report and elected to ground its rejection of her PTI application upon facts alleged and not proven. Pursuant to the Court's instruction in K.S., supra, 220 N.J. at 199, these allegations were not properly considered and did not support the prosecutor's rejection of defendant's PTI application.
The State argues that its consideration of the factual allegations supporting the original charges was sanctioned by Wallace, supra, 146 N.J. at 576. We disagree.
In Wallace, the defendant was charged with a second-degree offense and pled guilty to a third-degree offense after his PTI application was rejected. Id. at 580-81. The defendant sought to use the negotiated plea agreement as the standard against which the prosecutor's decision should be measured. Id. at 588. The Court stated, "a subsequently negotiated non-custodial sentence does not retrospectively impugn the soundness of a previous prosecutorial decision" to reject a PTI application. Id. at 588-89.
Unlike Wallace, the negotiated plea here was not used to retroactively challenge the basis for the prosecutor's rejection of the PTI application. To the contrary, the plea agreement here came before the PTI application and explicitly anticipated the application. It was within that context that the State agreed to accept a factual basis from the defendant that now constitutes the factual record. The State was an active participant in the creation of that factual record and may not now rely upon contradictory, unproven allegations as the basis for its decision to reject defendant's PTI application.
"Remand is the proper remedy when," as here, the State has considered inappropriate factors in its PTI decision. K.S., supra, 220 N.J. at 200. We reverse the order affirming the prosecutor's decision to reject defendant's PTI application and remand to the Monmouth County Prosecutor's Office for further consideration of defendant's PTI application consistent with this opinion.
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