Opinion
DOCKET NO. A-5650-13T2
12-12-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. IAN WILKINSON, Defendant-Respondent.
William A. Guhl, Assistant Prosecutor, argued the cause for appellant (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Robin L. Yerich, of counsel and on the briefs). Martin D. Matlaga argued the cause for respondent.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior of New Jersey, Law Division, Somerset County, Indictment No. 13-08-00475. William A. Guhl, Assistant Prosecutor, argued the cause for appellant (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Robin L. Yerich, of counsel and on the briefs). Martin D. Matlaga argued the cause for respondent. PER CURIAM
The State appeals from the trial court's July 25, 2014 order admitting defendant Ian Wilkinson into the Pretrial Intervention Program (PTI) over the prosecutor's objection. The State argues that the prosecutor's decision to reject defendant's application was based upon a thorough consideration of all appropriate factors and did not constitute a gross and patent abuse of discretion. We agree with the State and reverse.
The facts are undisputed. Defendant, presently age twenty-one, engaged in sexual intercourse with the fifteen-year old female victim on three occasions at the victim's residence between May 1, 2013, and July 6, 2013. Consequently, defendant was indicted for second-degree sexual assault, N.J.S.A. 2C:14-2c(4) (count one); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two).
Defendant applied for admission to PTI, noting that he had no prior adult or juvenile record, was gainfully employed, and had completed one year of college. He also cited the absence of force or coercion and the fact that he and the victim were both young and relatively close in age. Defendant argued that the penalties he was exposed to under Megan's Law were unduly onerous and counterproductive, and that the prospects for rehabilitation offered by his participation in the PTI program rendered it a more appropriate disposition under the circumstances of this case.
In rejecting defendant's PTI application, the program director explained:
The defendant is a [twenty-one][-]year[-] old man who was sexually and emotionally involved with a [fifteen][-]year[-]old female. The defendant admitted to [p]olice that even after he discovered the victim's correct age, he continued to have sexual and emotional relations with her. The offense committed by the defendant constitutes a continuing pattern of antisocial behavior, [N. J.S.A.] 2C:43-12e(8). In addition, the defendant is charged with a [second-degree] offense and has not provided compelling reasons to justify his admission or establish that a decision against enrollment is unreasonable. In light of the factors presented, the defendant is considered an inappropriate candidate for PTI.
The prosecutor's rejection relied primarily on the nature of the offense and the fact that defendant's criminal conduct had continued over a period of time despite his knowledge that it was illegal. The prosecutor also noted that the victim's parents opposed defendant's entry into PTI, and they described how defendant's actions had negatively affected her. Notwithstanding defendant's background, the State concluded that he was not an appropriate candidate for PTI.
Defendant appealed to the trial judge. In his written decision, the judge addressed each of the factors for PTI eligibility under N.J.S.A 2C:43-12(e) and Rule 3:28, and concluded that they favored admission to PTI. Specifically, the court found the following factors favored defendant's admission:
(2) the facts of the case reveal prosecutorial error in judgment, and the age of the defendant militates in favor of PTI.
(3) clearly defendant's motivation to avoid such behavior in the future is established by his recognition and acceptance of responsibility, as well as the fact the defendant was only [twenty] years old at the time of the offense. These factors militate strongly in favor of acceptance into PTI.
(5) Defendant's attendance at counseling and supervisory treatment as offered by PTI would be beneficial in the long-term for this defendant without being inconsistent with the public interest.
(6) the defendant's encounters with the [v]ictim can best addressed through supervisory treatment;
(8) although the State asserts that the defendant's relationship with the victim, involving three sexual encounters including after the defendant knew the [v]ictim's true age constitute a "continuing pattern" of anti-social behavior, the [c]ourt finds that the relationship between the defendant and the [v]ictim was one course of conduct, i.e. one "event" not constituting a continuing pattern.
(9) this defendant has no criminal and penal violations prior to this indictment, militating strongly in favor of admission;
(12) the defendant has no history of the use of physical violence toward others; and
(14) the value of supervisory treatment outweighs the public need for prosecution.
The court found that only factors (1) the nature of the offense; (7) the needs and interests of the victim and society; and (10) whether or not the crime is of an assaultive or violent nature; weighed against defendant's admission into PTI. The court was "not satisfied that there are discernable rational grounds for the prosecutor's decision sufficient to sustain it," and found that "defendant has met his heavy burden by showing that the State patently and grossly abused its discretion." The judge reasoned that defendant's "life is over" and that he would be "irrevocably harmed by prosecution, including mandatory Megan's Law registration, reporting and parole supervision for life."
This appeal followed, resulting in an automatic stay of defendant's admission. See R. 3:28(f). The State argues that defendant failed to show that the prosecutor committed a patent and gross abuse of discretion in denying defendant admission into PTI.
We review de novo the trial judge's decision to override the prosecutor's rejection of a PTI application. We do so because "[i]ssues 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 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.").
We review basic principles. Admission to PTI requires the prosecutor's consent. State v. Nwobu, 139 N.J. 236, 246 (1995). The PTI statute suggests a non-exclusive list of seventeen criteria for the prosecutor's consideration. N.J.S.A. 2C:43-12e; see State v. Brooks, 175 N.J. 215, 226-27 (2002). Prosecutors exercise broad discretion in determining whether to admit a person to PTI, which derives from their charging authority. Nwobu, supra, 139 N.J. at 246. 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. 434, 443-44 (1997) (citations omitted)). The court's "severely limited" review is designed to address "only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).
A defendant challenging a PTI rejection must "clearly and convincingly establish that the prosecutor's refusal . . . was based on a patent and gross abuse of his discretion[.]" Nwobu, supra, 139 N.J. at 246 (emphasis omitted) (citation and internal quotation marks omitted). To meet this burden a defendant must satisfy one of three factors, plus show the prosecutor's decision undermines the purpose 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.Among the goals of PTI is to provide "opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision . . . to deter future criminal behavior by an applicant," N.J.S.A. 2C:43-12a(1), and to assist in controlling criminal calendars, by focusing resources "on matters involving serious criminality and severe correctional problems[.]" N.J.S.A. 2C:43-12a(4).
[State v. Bender, 80 N.J. 84, 93 (1979) (citation omitted).]
Persons charged with first- or second-degree crimes, which carry a presumption of incarceration, are presumed ineligible for PTI. See Nwobu, supra, 139 N.J. at 252 (stating that persons charged with second-degree crime must demonstrate extraordinary or unusual facts to establish "'compelling reasons' for admission into PTI"); Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) to R. 3:28 at 1169 (2015) ("A defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor."). A defendant shall have the opportunity to demonstrate "compelling reasons" justifying admission. Ibid. On the other hand, the Court "has warned that conditioning a defendant's admission to PTI solely on the nature of his or her offense 'may be both arbitrary and illogical' and that '[g]reater emphasis should be placed on the offender than on the offense.'" Brooks, supra, 175 N.J. at 224-25 (quoting State v. Leonardis, 71 N.J. 85, 102 (1976)).
Applying this demanding standard of review, the trial court erred in overriding the prosecutor's decision. Rather, the court's conclusions related to the State's articulated reasons for rejecting defendant's admission into PTI reflect the court's substitution of its own judgment over that of the prosecutor. See State v. Wallace, 146 N.J. 576, 589 (1996) (reversing trial court's override of prosecutor's rejection, finding "[t]he court essentially evaluated the case as if it stood in the shoes of the prosecutor, whereas it should have been focused on whether it amounted to an 'arbitrary, irrational or otherwise an abuse of discretion' for the prosecutor to have assigned as much weight to the gravity of the offense as she apparently did in this case.").
Initially, we note that the court found that factor (4), the desire of the complainant or victim to forego prosecution, did not apply. In doing so, the judge was mistakenly dismissive of the objection of the underage victim, made through her parents, describing how defendant's actions have negatively affected her.
Closely related, while failing to recognize and appreciate the harm to the victim and her family, the judge placed undue emphasis on the potential effect of a conviction on the defendant, which he found the State "ignored." However, while the State gave significant emphasis to the nature and circumstances of the offenses, it also considered defendant's individual characteristics. The State considered mitigating factors personal to defendant, including his age, family background, educational and work history, and lack of prior criminal involvement. Nonetheless, the State concluded that defendant fell short of the requisite showing of compelling reasons to overcome the presumption of ineligibility attendant to a second-degree crime.
The motion judge erred by predicating his decision upon his own assessment of the PTI factors, rather than determining whether the prosecutor failed to consider all relevant factors, considered inappropriate factors, or clearly erred in judgment. Judicial disagreement with a prosecutor's reasons for rejection does not equate to prosecutorial abuse of discretion so as to merit judicial override. State v. DeMarco, 107 N.J. 562, 566-67 (1987). In this instance, the judge improperly substituted his own discretion for that of the prosecutor. Also, the prosecutor's rejection of defendant's PTI application did not constitute a patent and gross abuse of discretion. We are therefore constrained to reverse.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION