STATE OF NEW JERSEY VS. DAVON M. JOHNSON(15-01-0055, ESSEX COUNTY AND STATEWIDE) ( 2017 )


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                          APPROVAL OF THE APPELLATE DIVISION
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          Although it is posted on the internet, this opinion is binding only on the
            parties in the case and its use in other cases is limited. R. 1:36-3.
    
    
    
    
                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-0625-15T1
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Respondent,
    
    v.
    
    DAVON M. JOHNSON,
    
            Defendant-Appellant.
    
    _____________________________
    
                  Submitted May 2, 2017 – Decided November 2, 2017
    
                  Before Judges Messano and Suter.
    
                  On appeal from the Superior Court of New
                  Jersey, Law Division, Essex County, Indictment
                  No. 15-01-0055.
    
                  Joseph E. Krakora, Public Defender, attorney
                  for appellant (Peter T. Blum, Assistant Deputy
                  Public Defender, of counsel and on the brief).
    
                  Carolyn A. Murray, Acting Essex County
                  Prosecutor, attorney for respondent (Kayla
                  Elizabeth Rowe, Special Deputy Attorney
                  General/Acting   Assistant Prosecutor,  of
                  counsel and on the brief).
    
    PER CURIAM
         Defendant appeals from the denial of his application for
    
    admission into the Pretrial Intervention Program (PTI) following
    
    his arrest for possession of one hundred fifty envelopes of heroin
    
    in a school zone.   We affirm.
    
                                     I.
    
         Defendant, a twenty-one year old with no criminal record, was
    
    stopped by Newark police officers on May 18, 2014, for failing to
    
    stop at a red light.     According to the police, when defendant
    
    reached into the glove compartment to retrieve his credentials,
    
    three bricks of heroin fell to the floor, containing one hundred
    
    fifty glassine envelopes of heroin.      He was charged with three
    
    third-degree offenses: possession of heroin, N.J.S.A. 2C:35-10(a);
    
    possession of heroin with intent to distribute, N.J.S.A. 2C:35-
    
    5(a)(1) and (b)(3); and possession of heroin with intent to
    
    distribute in a school zone, N.J.S.A. 2C:35-7.
    
         Defendant applied for admission to PTI in July 2014.        His
    
    counsel filed a letter providing a Statement of Compelling Reasons
    
    in support of his application.    The letter noted defendant was a
    
    life-long Newark resident who graduated from Malcolm X Shabazz
    
    High School three years earlier.      He had been active in varsity
    
    sports and was a full-time student at Bloomfield College, studying
    
    accounting.   Defendant also worked at a number of different jobs
    
    and spent time caring for his younger sister, nieces and nephews.
    
                                     2                          A-0625-15T1
    Citing the purposes of PTI, defense counsel submitted that PTI
    
    would be a sufficient deterrent to future criminal conduct, that
    
    any indictable conviction would cause substantial hardship to
    
    defendant and his family, jeopardizing his ability to complete
    
    college and obtain employment in accounting.      Counsel also noted
    
    the   following   mitigating   factors:   defendant's    character     and
    
    attitude, his lack of any prior delinquency or criminal activity,
    
    the likelihood he would respond affirmatively to probationary
    
    treatment, the role his youthfulness played in the offense and
    
    that the offense was the result of circumstances unlikely to recur.
    
          Following review of defendant's application and his counsel's
    
    Statement Of Compelling Reasons, the Probation Office recommended
    
    against his admission to PTI, setting forth the following reasons:
    
               You were arrested by Newark Police in
               possession of 150 glassine envelopes of
               heroin. You reported no history of substance
               abuse or drug dependence. Based on the facts
               of the case and the likelihood of the present
               offense being a part of an organized criminal
               activity as well as a pattern of anti-social
               activity, your application for admittance into
               the PTI program is denied.
    
          In a seven-page letter dated November 7, 2014, the State
    
    rejected   defendant's   PTI   application.    The      letter   reviewed
    
    defendant's personal circumstances, including his age, residence,
    
    education and work history, his denial of drug use and absence of
    
    
    
                                       3                              A-0625-15T1
    a   criminal   record.     The   State   also   reviewed   the   details   of
    
    defendant's offense.
    
          Turning to an analysis of the aggravating factors it deemed
    
    relevant to defendant's application, the State cited and discussed
    
    the following factors: the nature of the offense, N.J.S.A. 2C:43-
    
    12(e)(1); the facts of the case, N.J.S.A. 2C:43-12(e)(2); the
    
    needs and interests of the victim and society, N.J.S.A. 2C:43-
    
    12(e)(7); whether or not the crime is of such a nature that the
    
    value of supervisory treatment would be outweighed by the public
    
    need for prosecution, N.J.S.A. 2C:43-12(e)(14); and whether or not
    
    the harm done to society by abandoning criminal prosecution would
    
    outweigh the benefits to society from channeling an offender into
    
    a supervisory treatment program, N.J.S.A. 2C:43-12(e)(17).                 In
    
    discussing the nature of the offense, the State noted defendant
    
    was presumptively ineligible for PTI because he was charged with
    
    a school zone offense.
    
          The State also identified mitigating factors relevant to its
    
    consideration of defendant's potential for rehabilitation: the
    
    motivation     and   age   of    defendant,     N.J.S.A.   2C:43-12(e)(3);
    
    defendant had "no prior criminal record of any kind," N.J.S.A.
    
    2C:43-12(e)(9); the crime did not involve violence or the threat
    
    of violence, N.J.S.A. 2C:43-12(e)(10); the lack of any evidence
    
    "suggest[ing] that defendant was involved with gangs or organized
    
                                         4                              A-0625-15T1
    crime," N.J.S.A. 2C:43-12(e)(13); and, because there were no co-
    
    defendants, defendant's participation in PTI would not adversely
    
    affect their prosecution, N.J.S.A. 2C:43-12(e)(16).              The State
    
    determined the aggravating factors it identified outweighed the
    
    mitigating factors and militated against defendant's admission
    
    into PTI.
    
         The State also addressed defendant's Statement of Compelling
    
    Reasons and arguments for admission. Among the reasons articulated
    
    in response, the State noted it "relied heavily" on the fact that,
    
    although defendant "is admittedly not a heroin user," he possessed
    
    "a significant amount of heroin" that was "conveniently packaged
    
    into three separate bricks" for distribution.              The State also
    
    repeated that defendant was presumptively ineligible for PTI,
    
    stating,    "Defendant's   crimes   not   only   include   a   school   zone
    
    offense, but highlight the fact that he is charged with a heroin
    
    distribution offense despite not being drug dependent himself.
    
    Guideline 3(i) of R. 3:28."         The State concluded defendant had
    
    failed to present sufficient compelling reasons to rebut the
    
    presumption against his admission.
    
         An Essex County grand jury returned an indictment against
    
    defendant in January 2015, charging him with the same offenses
    
    filed against him at the time of his arrest.
    
    
    
                                         5                              A-0625-15T1
          On March 23, 2015, defendant filed an appeal with the Law
    
    Division   from    the   State's   rejection     of     his    PTI    application.
    
    Because "[a]n appeal by the defendant shall be made . . . within
    
    ten days after the rejection," R. 3:28(h), the appeal was untimely.
    
    The submission was also incomplete because three of the letter
    
    brief's seven pages were not included in the filing.                  In response,
    
    the   State   argued     defendant's   appeal     was    procedurally       barred
    
    because it was untimely and further, that it should be denied on
    
    the merits.
    
          The trial judge acknowledged the State's procedural argument
    
    but did not limit his reasons for denying the appeal to that basis.
    
    He stated, "[E]ven assuming that this appeal was not procedurally
    
    barred . . . I nonetheless find that the defendant's motion fails
    
    on the merits" and then proceeded to state the reasons for his
    
    ruling.    The trial judge found the prosecutor had evaluated and
    
    weighed all relevant aggravating and mitigating factors, provided
    
    a synopsis of her reasoning and supporting caselaw regarding each
    
    factor and that the defendant had failed to demonstrate the
    
    rejection amounted to a clear error in judgment.                        Citing the
    
    Supreme Court's holding in State v. Caliguiri, 
    158 N.J. 25
    , 43
    
    (1999) ("[W]e hold that prosecutors may treat N.J.S.A. 2C:35-7 as
    
    equivalent    to    a     second-degree      offense      and        consider   PTI
    
    presumptively      unavailable."),         the   trial        judge    noted    the
    
                                           6                                   A-0625-15T1
    presumption against admission was only overcome by a demonstration
    
    of compelling reasons, which defendant had failed to show.
    
         Thereafter, defendant entered a guilty plea to one count of
    
    possession of heroin pursuant to a plea agreement and was sentenced
    
    to two years' probation.
    
          Defendant   presents     the   following   issues   for     our
    
    consideration in his appeal:
    
                   POINT I
    
                   A REMAND SHOULD OCCUR BECAUSE THE
                   TRIAL COURT DEPRIVED JOHNSON OF DUE
                   PROCESS IN DECIDING THE PTI APPEAL
                   BASED ON A DEFENSE BRIEF THAT WAS
                   MISSING NEARLY HALF ITS PAGES. U.S.
                   CONST. AMEND. XIV; N.J. CONST. ART.
                   I, PARA. 1.
    
                   POINT II
    
                   THE COURT'S REFUSAL TO EXCUSE THE
                   LATENESS OF THE PTI APPEAL WAS
                   IMPROPER BECAUSE THE PAGES MISSING
                   FROM THE DEFENSE BRIEF DEMONSTRATE
                   THAT (A) GOOD CAUSE EXISTED FOR THE
                   COURT TO ENLARGE THE TIME AND,
                   ALTERNATIVELY, (B) THE OMISSION OF
                   THE    PAGES     WAS     INEFFECTIVE
                   ASSISTANCE OF COUNSEL. U.S. CONST.
                   AMENDS. VI, XIV; N.J. CONST. ART. I,
                   PARAS. 1, 10.
    
                        A.   GOOD CAUSE EXISTED TO
                   ENLARGE THE TEN-DAY TIME LIMIT TO
                   FILE A PTI APPEAL WHEN JOHNSON'S
                   COUNSEL DID NOT LEARN OF THE PTI
                   REJECTION FOR "MONTHS."
    
    
    
                                     7                           A-0625-15T1
                       B.   ALTERNATIVELY,         THE
                  UNPROFESSIONAL   OMISSION   OF   THE
                  PAGES WAS INEFFECTIVE ASSISTANCE OF
                  COUNSEL   BECAUSE    A    REASONABLE
                  PROBABILITY EXISTS THAT THE COURT
                  BELOW WOULD NOT HAVE HELD THE APPEAL
                  TIME-BARRED HAD IT SEEN THE PAGES.
    
                  POINT III
    
                  A REMAND SHOULD OCCUR BECAUSE THE
                  PROSECUTOR IMPROPERLY DENIED PTI BY
                  APPLYING INAPPLICABLE PRESUMPTIONS.
    
                       A.   THE PRESUMPTION AGAINST
                  PTI   FOR  SECOND-DEGREE   OFFENSES
                  SHOULD NOT HAVE BEEN APPLIED TO THE
                  THIRD-DEGREE OFFENSE OF POSSESSING
                  DRUGS WITH INTENT TO DISTRIBUTE IN
                  A SCHOOL ZONE.
    
                       B.   EVEN   IF   THE   SECOND-
                  DEGREE-OFFENSE    PRESUMPTION   WAS
                  THEORETICALLY APPLICABLE TO SCHOOL
                  ZONE   OFFENSES,   THE   PROSECUTOR
                  SHOULD NOT HAVE APPLIED IT TO
                  JOHNSON, WHO WAS SIMPLY DRIVING
                  THROUGH WHEN THE POLICE STOPPED HIM
                  AND FOUND HEROIN.
    
                       C.   THE PRESUMPTION AGAINST
                  PTI FOR THE "SALE" OF A NARCOTIC
                  SHOULD NOT HAVE BEEN APPLIED TO
                  JOHNSON BECAUSE HE WAS CHARGED WITH
                  THE INTENT TO DISTRIBUTE, NOT AN
                  ACTUAL SALE.
    
                                  II.
    
        In Point I, defendant argues the trial court deprived him of
    
    due process by deciding his motion based on a brief that was
    
    
    
    
                                   8                         A-0625-15T1
    missing pages and without hearing oral argument on the motion.    We
    
    disagree.
    
         As a general rule, we would expect there to be oral argument
    
    on such a motion. Defendant has not represented that oral argument
    
    was requested, however.    Moreover, counsel was present on the
    
    return date of the motion and there is nothing in the transcript
    
    that reflects a request to be heard or the trial court's denial
    
    of such a request.
    
         The letter brief that was submitted consisted of four pages,
    
    numbered 1, 5, 6 and 7.    We have been provided with the missing
    
    pages, 2, 3 and 4 and compared their contents to the facts and
    
    arguments presented to the trial court in the letter brief and
    
    from other sources.
    
         Page 2 begins with the completion of the procedural history
    
    and proceeds to discuss defendant's personal circumstances, noting
    
    his gainful employment, college studies, athletic talent, and
    
    involvement with his nieces and nephews.   The page also includes
    
    a number of expressions of defense counsel's personal belief that
    
    defendant is a "a very worthy candidate for the PTI program."
    
         Pages 3 and 4 are the first two pages of defendant's legal
    
    argument.   Approximately one-half of page 3 is a block quote from
    
    Guideline 1, Guidelines for Operation of Pretrial Intervention in
    
    New Jersey (Guidelines), Pressler & Verniero, Current N.J. Court
    
                                     9                         A-0625-15T1
    Rules, following R. 3:28 at 1235 (2017), setting forth the purposes
    
    of PTI.     Approximately one-third of page 4 is a block quote from
    
    Guideline 2.    In the remaining text, counsel addresses (a) and (b)
    
    of Guideline 1. He argues that, if defendant "can address whatever
    
    problem that caused this aberrational behavior," services provided
    
    to him could reasonably be expected to deter future criminal
    
    behavior.      Reference   is   made   to   his   employment   and   college
    
    matriculation and the negative consequences a criminal conviction
    
    would have to him personally and to his job prospects.          The letter
    
    brief concedes defendant's "application on its face might not
    
    justify his admission into the PTI program,"              and presents a
    
    conclusory statement that upon appropriate consideration of "all
    
    of the compelling reasons previously submitted . . . it would
    
    appear that . . . [defendant] meets the burden that is imposed by"
    
    Guideline 2.
    
         Our review of the omitted pages within the context of the
    
    submissions to the court and the trial court's detailed findings
    
    of fact reveals no material fact or argument that was not before
    
    the trial court.     We therefore discern no prejudice to defendant
    
    arising from the omission of pages 2, 3 and 4.
    
                                       III.
    
         In Point II, defendant argues the trial court erroneously
    
    "refus[ed] to excuse the lateness of" his PTI appeal.           The record
    
                                       10                                A-0625-15T1
    fails to support this contention.                       Although the trial judge
    
    acknowledged that defendant's appeal from the PTI rejection was
    
    untimely, he addressed the merits of defendant's appeal and stated
    
    reasons for his denial.           As a result, the argument presented in
    
    Point II regarding "good cause" to enlarge the time in which to
    
    file an appeal lacks any merit.                 R. 2:11-3(e)(2).
    
         Defendant       argues      in    the      alternative      that    counsel      was
    
    ineffective    in    submitting        a     brief      that    was   missing     pages.
    
    Generally,    ineffective        assistance        of     counsel     claims    are   not
    
    entertained     on    direct      appeal        "because       such   claims    involve
    
    allegations and evidence that lie outside the trial record." State
    
    v. Preciose, 
    129 N.J. 451
    , 460 (1992).                  In this case, however, the
    
    allegations and evidence are fully revealed by the record and it
    
    is unnecessary to resort to matters outside the record to decide
    
    this issue.
    
         To prevail on a claim of ineffective assistance of counsel,
    
    defendant must meet the two-prong test of establishing both that:
    
    (l) counsel's performance was deficient and he made errors that
    
    were so egregious that counsel was not functioning effectively as
    
    guaranteed    by     the     Sixth      Amendment         to    the    United     States
    
    Constitution;      and     (2)   the    defect       in    performance     prejudiced
    
    defendant's rights to a fair trial such that there exists a
    
    "reasonable probability that, but for counsel's unprofessional
    
                                               11                                    A-0625-15T1
    errors, the result of the proceeding would have been different."
    
    Strickland v. Washington, 
    466 U.S. 668
    , 687, 694, l04 S. Ct. 2052,
    
    2064, 2068, 
    80 L. Ed. 2d 674
    , 693, 698 (1984); State v. Fritz, l05
    
    N.J. 42, 52 (l987).
    
           Defendant contends the trial court "improperly decided" his
    
    PTI appeal based upon an incomplete version of the defense brief
    
    that "contained no excuse" for the untimely filing of the appeal
    
    and    that    as   a   result,   the   trial    court   held    the    appeal   was
    
    procedurally barred as untimely.                Even if we assume counsel's
    
    performance in submitting an incomplete letter brief satisfied the
    
    first Strickland prong, defendant cannot satisfy the second prong
    
    because the trial judge addressed the merits of his appeal and
    
    explicitly stated he found "the defendant's motion fails on the
    
    merits."       This argument therefore lacks merit.
    
                                            IV.
    
           Finally, we turn to the merits of defendant's challenge to
    
    the rejection of his PTI application.
    
                                             A.
    
           The prosecutor's decision to accept or reject a defendant's
    
    PTI application is entitled to a great deal of deference, State
    
    v. Roseman, 
    221 N.J. 611
    , 624-25 (2015); State v. Leonardis, 
    73 N.J. 360
    ,    381     (1977);   and   may     be   overruled   only    when    the
    
    circumstances         "'clearly   and   convincingly      establish      that    the
    
                                            12                                 A-0625-15T1
    prosecutor's refusal to sanction admission into the program was
    
    based on a patent and gross abuse of . . . discretion.'"             Roseman,
    
    supra, 221 N.J. at 624-25 (citation omitted); see State v. Nwobu,
    
    
    139 N.J. 236
    , 254 (1995) ("The question is not whether we agree
    
    or   disagree   with   the    prosecutor's      decision,   but   whether   the
    
    prosecutor's decision could not have been reasonably made upon
    
    weighing the relevant factors.").
    
           In rendering the decision, the prosecutor must "make an
    
    individualized assessment of the defendant" and consider whether
    
    the defendant is amenable to rehabilitation.            Roseman, supra, 221
    
    N.J.   at    621-22   (citation    omitted).      The   prosecutor    is    also
    
    specifically required to consider the factors listed in N.J.S.A.
    
    2C:43-12(e), State v. Lee, 
    437 N.J. Super. 555
    , 562 (App. Div.
    
    2014).      When the prosecutor rejects a PTI application, N.J.S.A.
    
    2C:43-12(f)     requires     the   prosecutor    to   "precisely   state    his
    
    findings and conclusion which shall include the facts upon which
    
    the application is based and the reasons offered for the denial."
    
    See also State v. K.S., 
    220 N.J. 190
    , 198-99 (2014).
    
           "Any defendant charged with crime is eligible for enrollment
    
    in a PTI program, but the nature of the offense is a factor to be
    
    considered in reviewing the application."             Guideline 3(i).       When
    
    the PTI Guidelines establish a rebuttable presumption against
    
    admission based on the nature of the offense, the defendant must
    
                                          13                               A-0625-15T1
    present "compelling reasons justifying the applicant's admission
    
    and establishing that a decision against enrollment would be
    
    arbitrary    and   unreasonable."         Ibid.        This   means    he     "must
    
    demonstrate    something     extraordinary        or     unusual,     something
    
    'idiosyncratic,' in his . . . background."             Nwobu, supra, 139 N.J.
    
    at 252 (quoting State v. Jabbour, 
    118 N.J. 1
    , 7 (1990)).
    
                                         B.
    
         As we have noted, the State's letter rejecting defendant's
    
    PTI application addressed the relevant statutory factors, made
    
    specific    findings   as   to   relevant    aggravating       and    mitigating
    
    factors, discussed defendant's arguments and clearly stated the
    
    reasons for denying his application.         Addressing the nature of the
    
    offense, N.J.S.A. 2C:43-12(e)(1), the rejection letter stated
    
    defendant was presumptively ineligible due to the nature of the
    
    charges against him, citing Calguiri, supra, 158 N.J. at 43.                     The
    
    State also cited Guideline 3(i) as creating a presumption against
    
    admission for defendants charged with "sale or dispensing . . .
    
    of Schedule I or II narcotic drugs . . . by persons not drug
    
    dependent."
    
         In Point III, defendant argues these presumptions against
    
    admission to PTI were inapplicable to his case and that the
    
    prosecutor's reliance upon them requires a remand.              Defendant did
    
    not present this argument to the trial court. Instead, he accepted
    
                                        14                                      A-0625-15T1
    the premise that a presumption against admission applied and argued
    
    he had presented sufficient compelling reasons to warrant his
    
    admission to PTI.    Because his argument that the prosecutor erred
    
    in applying these presumptions is presented for the first time on
    
    appeal, we need not address it.         See State v. Robinson, 
    200 N.J. 1
    , 19-20 (2009). However, we note that, for the following reasons,
    
    we find the arguments unpersuasive.
    
          In Caliguiri, supra, 
    158 N.J. 28
    , 32 (1999), the prosecutor
    
    refused a PTI application "solely" because the applicant was
    
    charged with possession of marijuana with intent to distribute in
    
    a   school   zone,   N.J.S.A.   2C:35-7.      The    Court   rejected   the
    
    prosecutor's premise, but stated, "[a]lthough N.J.S.A. 2C:35-7
    
    offenders are not categorically ineligible for PTI, there is a
    
    presumption against diversion."         Id. at 42.
    
          Defendant argues the reasoning underlying this pronouncement
    
    has been undermined by subsequent amendments to N.J.S.A. 2C:35-7,
    
    which include the availability of non-custodial sentences.                No
    
    case is cited, however, that supports his argument the Court's
    
    instruction in Caliguiri is no longer viable.           To the contrary,
    
    as recently as last year, we recognized Caliguiri as providing
    
    guidance on how to interpret Guideline 3(i). See State v. Coursey,
    
    
    445 N.J. Super. 506
    , 511 (App. Div. 2016).
    
    
    
                                       15                              A-0625-15T1
         Defendant also argues it was error and an abuse of discretion
    
    to apply this presumption to him because he was neither engaged
    
    in nor charged with a sale or distribution of heroin.                  The
    
    defendant in Caliguiri was charged with possession of marijuana
    
    with intent to distribute in a school zone under circumstances
    
    that, like here, did not entail a drug transaction.          The fact the
    
    Supreme    Court   nonetheless   found   the   presumption   against   PTI
    
    eligibility applied to those facts renders defendant's argument
    
    devoid of merit.
    
         We therefore conclude defendant's arguments challenging the
    
    application of the presumption against PTI ineligibility lack
    
    merit.    Although he has not challenged the decision that he failed
    
    to present compelling reasons to override that presumption, we are
    
    also satisfied the reasons presented fell short of the "compelling"
    
    standard.   Finally, we also conclude the prosecutor's decision was
    
    reasonably made upon a weighing of appropriate factors and should
    
    not be disturbed.
    
         Affirmed.
    
    
    
    
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