Opinion
DOCKET NO. A-3599-14T3
09-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. K.R. Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Nicole Handy, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-06-0736. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Nicole Handy, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant K.R. appeals from the December 8, 2014 Law Division order, which denied her motion for post-conviction relief (PCR) without an evidentiary hearing. For the following reasons, we affirm.
Defendant is a veteran of the United States Army. In October 2011, she met the victim, N.L., who was the Victim Recovery Care Coordinator with the United States Army at Fort Dix. N.L. was responsible for helping homeless soldiers find housing. N.L. assisted defendant in finding housing at a state operated transitional housing facility for homeless veterans. In April 2012, N.L. reported to defendant's commander that defendant began to develop some type of attraction towards her, which made her uncomfortable and unable to continue working with defendant.
We use initials to protect the victim's identity.
On May 7, 2012, defendant's commander ordered her to have no contact with N.L. and attend mandatory counseling. Defendant repeatedly violated the order by telephoning N.L. and appearing at N.L.'s place of employment. On July 13, 2012, N.L. filed a report with the military police. The military police eventually banned defendant from the military installation entirely, and defendant's commander began proceedings to have her removed from the military.
On several occasions in October 2012, defendant appeared at N.L.'s place of employment. On October 8, 2012, defendant called N.L., and the next day she appeared at N.L.'s home. N.L. called the police. The police warned defendant not to have any further contact with N.L. or go near N.L.'s home.
On October 15, 2012, the police found defendant near N.L.'s home. On October 16, 2012, N.L. provided a probable cause statement and a municipal court complaint was filed against defendant, charging her with stalking, N.J.S.A. 2C:12-10(b). Defendant was arrested and bail was set at $2500 with a ten percent option.
Defendant was unable to post bail and was transported to the county jail. Enroute to the jail, defendant, referring to N.L., said to a police officer that as soon as she got out of jail, she was going to "get that bitch[,]" and "fuck that bitch up[.]" Defendant also said that she did not care about the no-contact order, was going to violate it, and the police better provide N.L. with twenty-four-hour protection because defendant was going to "get her[.]" Defendant's statements were audio and video recorded. As a result of defendant's statements, a municipal court complaint was filed against her, charging her with terroristic threats, N.J.S.A. 2C:12-3(a).
Defendant was released from jail after posting bail, and ordered to have no contact with N.L. as a condition of bail. Defendant violated the no-contact order by going to N.L.'s residence on three separate occasions, repeatedly calling N.L., and appearing at N.L.'s place of employment. On December 23, 2012, N.L. was seen sleeping in her car, which was parked around the corner from N.L.'s home. On December 24, 2012, a municipal court complaint was filed against defendant, charging her a second time with stalking, N.J.S.A. 2C:12-10(b). Thereafter, in January 2013, defendant sent N.L. an email threatening N.L.'s job.
On June 20, 2013, a grand jury indicted defendant for fourth-degree stalking, N.J.S.A. 2C:12-10(b) (count one); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count two); and third-degree stalking, N.J.S.A. 2C:12-10(c) (count three). Defendant applied for admission into the pretrial intervention (PTI) program. The Criminal Division Team Leader did not recommend admission for the following reasons:
Pursuant to PTI guidelines, a person charged with an offense that shows ongoing activity would generally be rejected from PTI. In 2004, [defendant] was convicted in municipal court on a similar charge which involved ongoing harassment where [defendant] made communications by phone to a victim from June 2004 through December 2004.
In addition, a person would also generally be rejected from PTI if there was the threat of violence against another person. In this case, [defendant] was charged with [t]hreatening [v]iolence and [s]talking [i]n [v]iolation of [a] [c]ourt [o]rder. A condition of [defendant's] bail was to have no contact with the victim, which she violated.
Prosecutor Jennifer B. Paszkiewicz submitted a certification in opposition to defendant's PCR petition. Paszkiewicz certified that she and defense counsel had numerous discussions, initiated by defense counsel, about defendant's rejection from PTI; defense counsel repeatedly urged her to consent to defendant's entry into the PTI program; and defense counsel strongly advocated for defendant's entry into the program. Paszkiewicz determined that defendant was not suitable for acceptance into the PTI program due to her continued contact with N.L. in violation of the no-contact order; the fact that defendant was charged with a second count of stalking; and because defendant threatened to harm N.L. once she was released from jail, which resulted in a charge for terroristic threats.
Paszkiewicz also mentioned defendant's prior municipal court conviction for harassment and disorderly conduct, and determined that while these convictions did not bar defendant's admission into PTI, they did not compel her to consent to defendant's admission given the nature of the present charges. Ultimately, Paszkiewicz concluded as follows:
because due to defendant's repeated contact with the victim, outbursts in court, and other conduct which was clearly indicative of a significant mental health issue,
defendant's mental health issues were beyond the scope of the PTI program, which is a shorter-term program with less intensive supervision than probation. I also did not believe, based upon defendant's conduct, that participation in the PTI program would deter her from continuing to stalk and harass the victim in this matter, and that accordingly, [defendant] was not likely amenable to diversionary treatment.
A court-appointed psychologist reported that defendant was diagnosed with Acute Distress Disorder, Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Dysthymic Disorder (Low Self-Esteem). The psychologist recommended mental health treatment.
On September 27, 2013, defendant pled guilty to count one. At the plea hearing, she testified that she knew she was prohibited from contacting N.L., repeatedly contacted N.L. nonetheless, and knew her conduct would cause a reasonable person to fear for his or her safety.
In accordance with the plea agreement, on October 11, 2013, the trial court sentenced defendant to four years of non-custodial probation conditioned on a mental health evaluation and compliance with any recommendations from that evaluation, and imposed a lifetime restraining order, pursuant to N.J.S.A. 2C:12-10.1, prohibiting her from contacting N.L. The court entered a judgment of conviction on October 21, 2013.
Defendant did not appeal. Instead, she filed a PCR petition, arguing, in relevant part, that defense counsel rendered ineffective assistance by failing to appeal the denial of her application for admission into the PTI program.
Defendant subsequently violated the terms of her probation. In addition, on June 19, 2014, a grand jury indicted defendant for third-degree stalking of N.L. on February 11, 2014, and fourth-degree contempt of the no-contact order. In June 2014, a grand jury indicted defendant for third-degree stalking of N.L. on April 7, 2014, and fourth-degree contempt of the no-contact order. On July 10, 2014, a grand jury indicted defendant for fourth-degree contempt of the no-contact order on April 13, 2014. --------
In a written opinion dated December 8, 2014, Judge Philip E. Haines denied the petition without a hearing, holding that defendant failed to establish a prima facie case of ineffective assistance of counsel. The judge found that defense counsel made several attempts to gain the prosecutor's consent to admit defendant into the PTI program, and defendant failed to show that an appeal from the PTI rejection would have been successful. The judge concluded that the record supported the reasons for defendant's rejection from the PTI program and did not demonstrate a patent and gross abuse of discretion. The judge also determined that even if counsel's performance was deficient, there was no reasonable probability that the outcome would have been different. On appeal, defendant reiterates the arguments made to Judge Haines.
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance, material issues of disputed fact lie outside the record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). To establish a prima facie claim of ineffective assistance of counsel, the defendant
must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls] below an objective standard of reasonableness.We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. See State v. Preciose, 129 N.J. 451, 462 (1992). We discern no abuse of discretion here.
Second, a defendant must show that the deficient performance prejudiced the defense. A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The prejudice standard is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability simply means a "probability sufficient to undermine confidence in the outcome" of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014) (citations omitted).]
We have held that
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.'"To gain admission, a defendant must obtain a positive recommendation from the PTI director and the consent of the prosecutor. Ibid.
[State v. Motley, 369 N.J. Super. 314, 320 (App. Div. 2004) (alteration in original) (quoting State v. Brooks, 175 N.J. 215, 223 (2002)).]
In making a PTI determination, the prosecutor must evaluate the criteria set forth in N.J.S.A. 2C:43-12(e) and the Rule 3:28 Guidelines. State v. Negran, 178 N.J. 73, 80-81 (2003). As part of that determination, the prosecutor must assess a defendant's "amenability to correction[,]" potential "responsiveness to rehabilitation[,]" and the nature of the offense charged. State v. Watkins, 193 N.J. 507, 520 (2008) (quoting N.J.S.A. 2C:43-12b).
A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his [or her] 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)). "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 State v. Wallace, 146 N.J. 576, 582-83 (1996)). "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).
Prosecutors are granted "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. We afford the prosecutor's decision great deference. Wallace, supra, 146 N.J. at 589; 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. at 213 (citation omitted). A trial court can only overturn a prosecutor's decision to deny PTI upon finding a patent and gross abuse of discretion. Kraft, supra, 265 N.J. Super. at 112-13.
The reasons for defendant's rejection from admission into the PTI program in this case were valid and premised on consideration of the relevant factors, the majority of which weighed against admission. Any challenge to the decision not to grant defendant admission into the PTI program would have failed. Defendant could not show that the decision was a patent and gross abuse of discretion. "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION