Opinion
DOCKET NO. A-0774-14T4
10-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JASON W. WIMMER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-10-2796. Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jason W. Wimmer was denied Pretrial Intervention (PTI) and pled guilty. Before sentencing, defendant challenged the prosecutor's denial of his application for PTI, but the trial court upheld the prosecutor's denial. We affirm.
I.
The following facts are drawn from the trial court's opinion, the prosecutor's denial letter, and the presentence report, and are not disputed. At about 4:28 a.m. on August 19, 2013, Northfield Patrolman Pelt observed defendant walking through business parking lots and shining a flashlight in multiple directions. Pelt became suspicious, exited his police car, and questioned defendant about his actions. Defendant explained that he ran out of gas while driving back to Philadelphia, had been searching for a payphone, and could not remember where he parked his car. When asked for identification, defendant claimed he only had car keys and change on his person. Pelt offered to assist defendant by giving him a ride.
Before allowing defendant into the police car, Pelt asked if defendant had any weapons. Defendant advised that he was carrying a carbon-dioxide (CO2) pellet gun in his waistband and lifted his shirt to reveal the weapon. After removing the pellet gun, Pelt discovered that it was loaded with metal pellets, and it had been modified with metal and black tape to alter its appearance. Defendant, a Pennsylvania resident, did not have a New Jersey permit for the pellet gun and said he was unaware he was required to obtain one. Pelt arrested defendant.
A grand jury indicted defendant of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Defendant sought admission into PTI and the PTI Director recommended defendant for enrollment. However, the Prosecutor's Office overruled the Director's recommendation and denied defendant admission into PTI. The prosecutor stated that "defendant's possession of a loaded, easily accessible deadly weapon [was] deemed as too serious to allow the privilege of diversion."
Defendant pled guilty. Before sentencing, defendant filed a motion to appeal the prosecutor's denial and compel admission into PTI. After hearing oral argument, Judge Michael A. Donio denied defendant's motion and sentenced him to one year of probation. Defendant appeals his August 22, 2014 judgment of conviction, arguing:
We note that defendant's appeal of the prosecutor's decision was untimely. A defendant should appeal the denial of PTI "before a [guilty] plea or verdict." State v. Moraes-Pena, 386 N.J. Super. 569, 578 (2006). "A PTI appeal should not be, and is not, a collateral attack on a guilty plea." Id. at 579. "'None of the laudatory purposes of pretrial intervention are fostered by' an attempt to get PTI after" a guilty plea. State v. Waters, 439 N.J. Super. 215, 224 (App. Div. 2015) (quoting State v. Bell, 217 N.J. 336, 348 (2014)).
THE JUDGE BELOW ERRED IN DENYING DEFENDANT'S MOTION TO BE ADMITTED TO THE PRE-TRIAL INTERVENTION PROGRAM AS THE PROSECUTOR'S DENIAL WAS A PATENT AND GROSS ABUSE OF DISCRETION.
II.
Deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996). "'Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options.'" State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Accordingly, "prosecutors are granted broad discretion to determine if a defendant should be diverted" to PTI instead of being prosecuted. State v. K.S., 220 N.J. 190, 199 (2015); see also State v. Negran, 178 N.J. 73, 82 (2003) (courts must "allow prosecutors wide latitude").
"Thus, the scope of review is severely limited," Negran, supra, 178 N.J. at 82, and reviewing courts must accord the prosecutor "'extreme deference.'" Nwobu, supra, 139 N.J. at 246 (quoting Kraft, supra, 265 N.J. Super. at 112). "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. Watkins, 193 N.J. 507, 520 (2008) (citation omitted). "[I]nterference by reviewing courts is reserved for those cases where needed 'to check [] the most egregious examples of injustice and unfairness.'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (quoting Negran, supra, 178 N.J. at 82 (internal quotation marks omitted)).
We must hew to the same standard as the trial court. Negran, supra, 178 N.J. at 83. Thus, we review that court's ruling de novo.
III.
The PTI program is governed by N.J.S.A. 2C:43-12 to -22, Rule 3:28, and the Guidelines for Operation of Pretrial Intervention in New Jersey (Guidelines), reprinted after Rule 3:28 in Pressler & Verniero, Current N.J. Court Rules (2016). Guideline 3 to Rule 3:28, and N.J.S.A. 2C:43-12(e), contain relevant factors to be considered by the prosecutor in deciding whether to grant PTI.
After "consider[ing] the statutory criteria set forth in Guideline 3 of Rule 3:28," the prosecutor denied defendant's application for PTI. The prosecutor first cited (1) the nature of the offense, and (2) the facts of the case. N.J.S.A. 2C:43-12(e)(1), (2). The prosecutor noted that defendant was in possession of a pellet gun without a permit in violation of N.J.S.A. 2C:39-5(b)(2), a third-degree crime, and that the pellet gun was easily accessible in defendant's waistband. In addition, the pellet gun was loaded with metal pellets, and its appearance was altered with black tape and metal. Defendant possessed the pellet gun while shining a flashlight in multiple directions while walking through the parking lots of businesses at 4 a.m.
The prosecutor also considered the following facts that might favor diversion to PTI. Defendant, who had no prior criminal convictions, was from Pennsylvania and claimed he was unfamiliar with the laws of New Jersey. Defendant claimed he only carried a pellet gun because he was employed as a pizza delivery man in Philadelphia and needed protection. Defendant also claimed he had forgotten about the pellet gun when he drove to New Jersey. Additionally, the Director had submitted a favorable recommendation for PTI.
In denying PTI, the prosecutor found these mitigating factors did "not outweigh the strong need to deter." The prosecutors stated that New Jersey has a strong interest in enforcing its gun laws to deter the illegal handling and transportation of firearms within the state. In doing so, the prosecutor cited two other criteria from N.J.S.A. 2C:43-12(e): whether the crime is of such nature that the value of supervisory treatment would be outweighed by the public need for prosecution, and whether the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory program. N.J.S.A. 2C:43-12(e)(14), (17).
In light of these circumstances, the trial court properly found no patent and gross abuse of discretion in the prosecutor's denial of PTI. Defendant had the loaded, altered pellet gun on his person, which made it easily accessible at a moment's notice. He had also been observed walking through the parking lots of businesses during the middle of the night, shining a flashlight in numerous directions. These facts, taken in totality, support the factors cited by the prosecutor in not admitting defendant into the PTI program.
Defendant claims that the prosecutor established a per se rule of exclusion, not contemplated by the PTI statute, when he cited the nature of defendant's offense, a third-degree offense that is not subject to the presumption against admission into PTI under Guideline 3(i). Defendant cites State v. Baynes, 148 N.J. 434 (1997), where a prosecutor abused his discretion by denying PTI based solely on "that prosecutor's acknowledged policy to deny PTI to defendants charged with 'school zone offenses.'" Id. at 440, 445.
Here, by contrast, the prosecutor considered facts of the case together with the nature of the offense. Because the pellet gun was readily accessible, loaded with metal pellets, and altered with black tape and metal, presumably to make it look like a more deadly firearm, it had the potential to threaten, seriously hurt, and perhaps kill someone. Thus, the prosecutor, in citing all of these facts and not relying solely on the nature of the offense, did not create a per se rule of exclusion from the PTI program.
We agree with the trial court that defendant did not "show the prosecutor's veto (1) was not premised on consideration of all relevant factors; (2) was based on consideration of irrelevant or inappropriate factors; or (3) amounted to a clear error in judgment." State v. Warriner, 322 N.J. Super. 401, 409 (App. Div. 1999) (citing State v. Bender, 80 N.J. 84, 93 (1979)). Defendant certainly did not show "'that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.'" Wallace, supra, 146 N.J. at 583 (citation omitted). It is not the court's prerogative to second-guess the prosecutor's reasoned judgment.
IV.
Defendant also argues that the prosecutor's rationale for denial was not in accordance with the Attorney General's memorandum issued to county prosecutors on September 24, 2014. Clarification of "Graves Act" 2008 Directive with Respect to Offenses Committed by Out-of-State Visitors From States Where Their Gun-Possession Conduct Would Have Been Lawful (Sept. 24, 2014) (Clarification). Defendant did not raise that argument at the August 15, 2014 motion hearing. He fails to show plain error.
The Graves Act imposes a mandatory minimum prison sentence on defendants convicted of certain gun-related offenses. N.J.S.A. 2C:43-6(c). The Clarification addresses cases where a "resident of another state brings into New Jersey a firearm that had been acquired lawfully and that could be carried lawfully by that visitor in the visitor's home jurisdiction." Clarification, supra, 1, 2. It instructs that "in the absence of case-specific aggravating circumstances, these defendants should not be sentenced to incarceration." Id. at 1.
Defendant argues that the Clarification should be applied to his case. However, the Clarification states it "applies only to Graves Act cases," id. at 4, and defendant's third-degree offense under N.J.S.A. 2C:39-5(b)(2) is explicitly not subject to a mandatory minimum sentence under the Graves Act. See N.J.S.A. 2C:43-6(d)(2). Moreover, the prosecutor denied defendant's PTI application on March 26, 2014, prior to the issuance of the Clarification on September 24, 2014. See Waters, supra, 439 N.J. Super. at 239-40.
The State also argues that the Clarification does not apply to defendant because a CO2-powered gun does not meet the statutory definition of a firearm. To the contrary, the definition of "firearm" includes "an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is . . . carbon dioxide." N.J.S.A. 2C:39-1(f); see N.J.S.A. 2C:39-5(b).
We need not resolve whether the Clarification is applicable to defendant's case. Nor must we decide whether defendant would meet the Clarification's prerequisites requirements that the pellet gun "had been lawfully acquired in another jurisdiction," and that his carrying on his person of a loaded, altered pellet gun "would have been lawful in" Pennsylvania. Clarification, supra, at 4. Even assuming those preconditions were met, applying the Clarification would not change the result here.
Defendant did not show he met those criteria. See ibid.; Waters, supra, 439 N.J. Super. at 228. However, it appears that his conduct might be lawful in Pennsylvania. See Commonwealth v. Schilling, 431 A.2d 1088, 1090-91 (Pa. Super. Ct. 1981). --------
The Clarification sets forth circumstances for prosecutors to consider in granting or denying PTI, such as the exposure of the firearm to persons in New Jersey, whether defendant volunteered the presence of the firearm to the police, whether the offense was isolated and aberrational, and the circumstances concerning confusion of the law. Id. at 6-8. Here, "[t]he manner and circumstances of the possession [did not] minimize[] the exposure of the firearm to others in this State," because defendant was not merely transporting an unloaded firearm in the trunk of a car traveling through New Jersey; rather, "defendant carried . . . the firearm on or about his or her person outside a vehicle," while the firearm was loaded, thus presenting an "immediate risk to the persons with whom the defendant might interact." Clarification, supra, at 6. This clearly "weigh[s] against PTI here." Waters, supra, 439 N.J. Super. at 240.
Moreover, defendant did not on his "own initiative advise[] a police officer that a firearm [was] present," but only "admit[ted] to the presence of a firearm in response to a police question" after defendant had already interacted with the officer. Clarification, supra, at 7; see Waters, supra, 439 N.J. Super. at 240.
Given those circumstances, even if the Clarification applied here, the prosecutor's denial of defendant's PTI would not be a patent and gross abuse of discretion. Thus, defendant cannot show the prosecutor's denial was a plain error "clearly capable of producing an unjust result." R. 2:10-2.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION