Opinion
DOCKET NO. A-3922-13T3
01-13-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAMON RAMIREZ, JR., Defendant-Appellant.
William Pollack argued the cause for appellant. Jennifer Jascoll Ljungberg, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Georgina G. Pallitto, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1284. William Pollack argued the cause for appellant. Jennifer Jascoll Ljungberg, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Georgina G. Pallitto, Assistant Prosecutor, on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Defendant Ramon Ramirez appeals from the Law Division's denial of his second petition for post-conviction relief (PCR). In his petition, defendant argued the new rules established in State in re V.A., 212 N.J. 1 (2012) for applications by prosecutors seeking waiver of the Family Part's jurisdiction over juvenile offenders should be retroactively applied to his case, and the matter remanded to the Family Part for reconsideration of its earlier decision to grant the prosecutor's application for waiver. The PCR court disagreed and denied his petition as procedurally barred. On appeal, defendant maintains his PCR petition was not procedurally barred and that V.A. should be applied retroactively. We disagree and affirm.
Defendant was just shy of his eighteenth birthday when he committed the offenses that ultimately led to his conviction by a jury for armed robbery, N.J.S.A. 2C:15-1; conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, 2C:15-1; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Prior to his trial, the State filed a waiver motion to have defendant tried as an adult, pursuant to N.J.S.A. 2A:4A-26 and Rule 5:22- 2. The State's statement in support of its application provided the following reasons for pursuing waiver:
The facts leading to defendant's arrest and conviction are described in our earlier opinions affirming his conviction and the denial of his first PCR petition. See infra. We need not repeat those facts for purpose of this opinion.
Defendant was convicted after a second trial, as the jury in an earlier trial could not reach a verdict.
The trial court dismissed a charge of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).
— the nature and circumstances of the offense
— the role of the juvenile therein
— the potential for grave and serious harm to the victim or community
— the need to deter this juvenile and others from violating the law
— the need for a lengthier term of incarceration (considering the amount of time likely to be served under the criminal code compared to the juvenile code[)]
— the likelihood of conviction and the potential need for a grand jury investigation
At the ensuing hearing, the Family Part judge and prosecutor possessed a psychiatric report that stated defendant "suffered from [a] mental illness . . . at the time of the commission of the offense that rendered him dangerous to himself and others." However, the judge concluded he could not consider a claim of diminished capacity at the waiver hearing and that, because there was "probable cause to believe that [defendant] committed a first degree robbery," the court did not "have any discretion . . . [and had] no choice but to waive the case to adult court."
After defendant's conviction, the court sentenced him to an aggregate term of fifteen years, subject to a mandatory period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On direct appeal, we affirmed his conviction, but remanded for resentencing, see State v. Ramirez, Docket No. A-4604-08 (App. Div. Oct. 27, 2010) (slip op. at 9-10), at which the court merged defendant's convictions and resentenced him to the same fifteen-year term. Defendant again appealed his sentence, and we affirmed. See State v. Ramirez, Docket No. A-2785-10 (App. Div. May 2, 2011).
Defendant filed his first PCR petition, which the Law Division denied without an evidentiary hearing. On appeal, defendant argued he "was denied the effective assistance of counsel by the failure of his trial counsel to investigate, pursue, and utilize the defense of diminished capacity, and this failure substantially prejudiced his defense." We rejected this argument and affirmed, and the Court denied certification. See State v. Ramirez, Docket No. A-1264-11 (App. Div. Apr. 5, 2013), certif. denied, 216 N.J. 13 (2013).
On January 13, 2014, defendant filed a second PCR petition, the subject of this appeal, in which he challenged the Family Part's decision to grant the State's motion for waiver and refer his case to the adult court. He argued the decision "was incorrect and represented an arbitrary abuse of the prosecutor's discretionary power pursuant to the waiver statute" because the State's "written statement of reasons for waiver . . . was insufficient to substantiate a waiver in this case." Citing to V.A., defendant claimed that, because the prosecutor's waiver analysis "contained almost no information specifically relating to [him,] . . . the prosecutor's application for waiver should have been denied."
In the written decision accompanying its April 1, 2014 order, the PCR court expressed its reasons for denying defendant's petition. The court first noted Rule 3:22-4(b)'s requirement that a second PCR petition shall be dismissed unless:
(1) it is timely under R[ule] 3:22-12(a)(2); and
(2) alleges on its face either:
(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief,
if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted . . . .
The PCR judge then observed that in V.A. the Court "ruled that the abuse of discretion standard, rather than the patent and gross abuse of discretion standard, is proper when assessing a prosecutor's decision to waive a juvenile aged sixteen and over charged with an enumerated offense under N.J.S.A. 2A:4A-26 into adult criminal court." He concluded:
The revised standard is not a new constitutional rule requiring retroactive application. . . . Even if it were, to serve as grounds for a second PCR, . . . the record fails to support a reasonable probability that a less deferential standard inures to the benefit of [defendant] to the extent that a waiver would have been denied. [Defendant] was [almost eighteen] years old at the time of the charged offenses with a prior record for theft by unlawful taking, and there was probable cause that [defendant] committed robbery in the first degree when waiver was granted. Any individualized assessment imposed by V.A. would have been satisfied by the State in light of the evidence presented as a whole. Accordingly, [defendant's] second PCR is dismissed.
This appeal followed.
On appeal, defendant specifically argues:
POINT I
DEFENDANT'S SECOND PCR PETITION SHOULD BE GRANTED AND DEFENDANT'S CASE REMANDED TO THE HUDSON COUNTY CHANCERY DIVISION FAMILY PART
FOR PURPOSES OF CONDUCTING A SECOND WAIVER HEARING PURSUANT TO [V.A.]
POINT II
THE DECISION OF THE SUPREME COURT IN [V.A.] SHOULD BE AFFORDED RETROACTIVE APPLICATION.
We address first defendant's contention that, in light of the heightened standard of review and more-individualized assessment of defendants demanded by the Court's decision in V.A., his second PCR petition is not procedurally barred and we should remand this matter to the Family Part for reconsideration of the prosecutor's waiver application. Though defendant concedes the Court's holding did not constitute a new rule of constitutional law, he argues that his petition is not barred by Rule 3:22-4(b) because the Court's decision "set forth new guidelines with respect to the information required to be provided by the Prosecutor in seeking a waiver." He contends remand is therefore necessary because the State violated V.A.'s holding by failing to include an individualized assessment in its statement of reasons in support of waiver and the Family Part erred in waiving jurisdiction based only upon its finding of probable cause. The State argues defendant's second PCR petition is procedurally barred because, although timely, the V.A. decision upon which it relies did not create a new rule of constitutional law, and the petition was not supported by newly discovered facts or a claim for ineffective assistance of counsel.
We have considered the parties' contentions in light of our review of the record and applicable legal principles. We reject defendant's arguments substantially for the reasons expressed by the PCR judge. We add only the following comments.
In V.A., the Court held that trial courts are to review a prosecutor's decision to pursue waiver under an abuse of discretion standard, rather than the patent and gross abuse of discretion standard previously applied. V.A., supra, 212 N.J. at 24-25. The Court described the purpose of the new standard, while acknowledging the Family Part's limited role in reviewing a prosecutor's reasoning for the application. It stated:
An abuse of discretion review does not allow the court to substitute its judgment for that of the prosecutor. Rather, a review for abuse of discretion involves a limited but nonetheless substantive review to ensure that the prosecutor's individualized decision about the juvenile before the court, as set forth in the statement of reasons, is not arbitrary or abusive of the considerable discretion allowed to the prosecutor by statute. Cursory or conclusory statements as justification for waiver will not suffice to allow the court to perform its review under the abuse of discretion standard because such statements provide no meaningful explanation of the prosecutor's reasoning.
[Id. at 8-9.]
The Court cautioned that a prosecutor's statement of reasons could not be a "mere regurgitation of the [Juvenile Waiver] Guidelines' language," id. at 28, and must instead contain an individualized assessment of the factors set forth by Guidelines. Id. at 27-30; see also State of New Jersey, Dep't of Land & Pub. Safety, Div. of Criminal Justice, Attorney General Juvenile Waiver Guidelines (Mar. 14, 2000), available at http://www.nj.gov/oag/dcj/agguide/pdfs/AG-Juvenile-Waiver-Guidelines.pdf. It also reiterated that, upon a finding of probable cause by the Family Part, waiver remains mandatory unless the "juvenile seeking to avoid the 'norm' of waiver . . . [satisfies the] heavy burden to clearly and convincingly show that the prosecutor was arbitrary or committed an abuse of his or her considerable discretionary authority to compel waiver." Id. at 29.
Writing for the majority in V.A., Justice LaVecchia explained the roles of the Guidelines and prosecutorial discretion in determining whether to seek waiver:
[T]he Legislature vested the prosecutor's office with the primary responsibility for juvenile waiver decisions when the juvenile is sixteen years or older and charged with a designated offense. The intent was to increase prosecutorial discretion and to make waiver more likely in the case of those juveniles.
That said, the Legislature added subsection f, directing the Attorney General to issue guidelines to ensure statewide the uniform application of this new prosecutorial discretion and thereby eliminate arbitrariness or abuse of discretionary power. The Attorney General promulgated "Juvenile Waiver Guidelines," effective March 14, 2000. . . . The narrative accompanying the operative language of the Guidelines states that, in the exercise of discretion in juvenile waiver decisions, due to the seriousness of the offenses involved, the prosecutor's decision in these waiver cases rests primarily on objective factors, such as the nature of the offense, rather than subjective factors, such as the juvenile's individual characteristics.
[V.A., supra, 212 N.J. at 10-11 (citations omitted).]
As both parties recognize, V.A. did not articulate a new rule of constitutional law; it simply changed the standard by which trial judges review prosecutors' waiver recommendations and clarified the type of information required in the supporting statement of reasons. The PCR court therefore correctly determined that defendant's second petition is procedurally barred, as it does not rely upon a new rule of constitutional law, newly discovered facts, or a claim for ineffective assistance of counsel. See R. 3:22-4(b)(2).
We turn next to defendant's contention that V.A. should be applied retroactively to his case. We find this contention to be without merit as well.
There can be no dispute that V.A. announced a new rule that produced "sudden and generally unanticipated repudiation of a long-standing practice," State v. Feal, 194 N.J. 293, 308 (2008) (quoting State v. Purnell, 161 N.J. 44, 53 (1999)), as it changed the standard by which prosecutors' decisions to pursue waiver are reviewed and requires prosecutors to give more thorough reasons for pursuing waiver than were previously required. See V.A., supra, 212 N.J. at 26-27. Though the Court's decision did not specify whether it would apply retroactively, it did refer to the "the abuse of discretion standard [as being] adopt[ed] today." Ibid. (emphasis added).
As the parties agree, the Court's holding in V.A. would apply to defendant only if it is given "complete retroactive effect, applying it to all cases." See State v. Burstein, 85 N.J. 394, 403 (1981). Thus far, no other court has applied V.A. retroactively.
As described by the Court, we have "four options . . . in any decision involving retroactivity," only the last of which applies here:
(1) make the new rule of law purely prospective, applying it only to cases whose operative facts arise after the new rule is announced; (2) apply the new rule to future cases and to the parties in the case announcing the new rule, while applying the old rule to all other pending and past litigation; (3) grant the new rule limited retroactivity, applying it to cases in (1) and (2) as well as to pending cases where the parties have not yet exhausted all avenues of direct review; and, finally, (4) give the new rule complete retroactive effect, applying it to all cases, even those where final judgments have been entered and all avenues of direct review exhausted.--------
[Id. at 402-03.]
In determining whether a rule should receive complete retroactive effect, we must consider:
(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.
[Feal, supra, 194 N.J. at 308 (quoting State v. Knight, 145 N.J. 233, 251 (1996)).]
With respect to the first factor, "[w]here the purpose of the new rule is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and raises serious question[s] about the accuracy of guilty verdicts in the past trials the first factor points to a complete retroactive application." Id. at 308-09 (citations omitted). However, "in cases where the new rule is designed to enhance the reliability of the fact-finding process, but the old rule did not 'substantially impair' the accuracy of that process, a court will balance the first prong against the second and third." Id. at 309. As to the second prong, we consider "whether the State administered the old rule 'in good faith reliance [on] then prevailing constitutional norms.'" Ibid. (alteration in original) (quoting Purnell, supra, 161 N.J. at 55). Regarding the third prong, we will deny retroactive application of a new rule if doing so "would undermine the validity of a large number of convictions." Ibid. (quoting Knight, supra, 145 N.J. at 252). "Ultimately, the retroactivity determination turns on the court's view of 'what is just and consonant with public policy in the particular situation presented.'" Id. at 309-10 (quoting Knight, supra, 145 N.J. at 251).
Here, defendant concedes the old rule did not substantially impair the truth-finding process, but asserts the new rule announced in V.A. should nevertheless be applied retroactively because it enhances the reliability of the fact-finding process by requiring prosecutors to perform individualized analyses in support of their applications for waiver and referral. He contends that, had the State performed such an analysis, specifically with regard to the need for deterrence, there would have been no basis for the Family Part to waive jurisdiction given the nature of his offense — he used a BB gun and took ninety dollars — and his individual characteristics — he had no criminal record or history of violence or gang involvement, "came from a good home," and suffered from mental illness at the time of the offense. He further maintains that applying V.A. retroactively is consistent with the goal of rehabilitating juvenile offenders rather than punishing them.
The State argues V.A. should not be applied retroactively because the old rule did not substantially impair the truth-finding function, and because doing so would affect a large number of cases, as the old rule had been in place long before V.A. was decided. The State also asserts that, even if V.A. were to be applied retroactively, defendant would still be subject to waiver because his lack of a criminal record would be outweighed by the offense's temporal proximity to his eighteenth birthday and the fact that he committed an armed robbery midday in a populated area and held a gun to his victim's face.
As both parties acknowledge, the first factor is not met here because the old rule did not impair the truth-finding process; it merely made it difficult for judges to oversee the waiver process because of the high standard of review and the lack of detailed reasoning provided by prosecutors. Id. at 308- 09. Thus, because the new rule simply enhances the reliability of the fact-finding process, the first prong must be balanced against the second and third. Id. at 309.
Applying the second and third prongs, we conclude that, even though public policy favors ensuring the accuracy of the truth-finding function in all juvenile waiver cases, past and present, the number of cases that would be affected by the retroactive application of V.A., the length of time the old rules were in place, and the fact that the State relied on those rules in good faith all weigh against the retroactive application of V.A.'s holding. Thus, even if defendant's second PCR petition was not procedurally barred, it is unlikely V.A. would be applied retroactively, meaning there would be no basis for remanding this case for reconsideration of waiver.
Moreover, we conclude that even if V.A. were to apply retroactively to defendant's case, a different outcome under the new standards would be improbable, as the facts relating to defendant and his offense provided adequate support for waiver. Given that defendant robbed a store in a populated area with a BB gun, the aggressive nature of his crime and the risk of harm to the victim and bystanders support the factors cited by the State in its statement of reasons, even though the statement lacked a detailed explanation of the bases for the factors.
In sum, we agree with the PCR court's conclusion that defendant's second PCR petition was procedurally barred by Rule 3:22-4(b) because it did not involve a change in constitutional law, newly discovered facts, or a claim of ineffective assistance of counsel. However, even if his petition were not procedurally barred, V.A. likely would not apply retroactively and, in any event, application of its new standard and requirements would not change the result in this case.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION