STATE OF NEW JERSEY v. MARIANNA JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1732-04T51732-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARIANNA JOHNSON,

Defendant-Appellant.

_______________________________________

 

Argued December 14, 2005 - Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, S-1997-324.

Michael S. Simon argued the cause for appellant (Simon, Monahan and Simon, attorneys; Mr. Simon, on he brief).

Simon Louis Rosenbach argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor; Mr. Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals a November 18, 2004, order which expunged certain arrests and convictions but denied her petition to expunge three disorderly persons convictions because of a subsequent criminal charge in Florida and its disposition. The trial judge equated the Florida disposition to a diversionary program which would bar expungement pursuant to N.J.S.A. 2C:52-14(f). We affirm.

Born on August 25, 1972, defendant is currently thirty-three yeas old. Prior to completing, apparently successfully, a rehabilitative treatment program in 2001, she had accumulated, over a one-year period, a number of disorderly persons arrests, most of them drug related, all but four of which were dismissed. The four that were not are as follows: 1) in January 1997, defendant was convicted of a municipal ordinance violation of "loitering for controlled dangerous substances," 2) in August 1997, she incurred two separate convictions of possession of drug paraphernalia, and 3) in December 1997, she was convicted of possession of a hypodermic needle. All of these disorderly persons offenses occurred in New Jersey.

On June 3, 1999, defendant was arrested in Florida and charged with Fla. Stat. 893.13(2)(a)(1), purchase or possession with intent to purchase controlled substances, and Fla. Stat. 893.03(1)(b)(11), possession of heroin. No action was taken on the possession of heroin charge. As permitted by Florida law, defendant pled nolo contendere to the charge of purchase or possession with intent to purchase controlled substances. A conviction of that charge is a second-degree felony, which carries a maximum sentence of fifteen years. Fla. Stat. 775.085(3)(c). The Florida judge ordered that "an adjudication of guilt be withheld." See Fla. R. Crim. P. 3.670; Fla. Stat. 948.01(2); Fla. Stat. 921.187(a)3; Sanchez v. State, 541 So. 2d 1140, 1141 (Fla. 1989). Defendant was sentenced to eighteen months probation. Probation was terminated early by the Court on December 8, 1999.

In April 2004, defendant sought expungement of her New Jersey arrests and convictions under N.J.S.A. 2C:52-3 and N.J.S.A. 2C:52-4. The trial judge granted the expungement of all the arrests which did not lead to convictions and the January 1997 conviction which was based upon a municipal ordinance violation. He did not grant expungement for the other three convictions. He said:

I am satisfied based on my review of the expungement statutes that the application to expunge those . . . convictions cannot be granted. I believe that [defendant] completed a diversionary program following her Florida arrest, that a program which results in her being placed on probation for a period of time is tantamount to P.T.I. in New Jersey and it's that kind of diversionary program that would preclude the granting of an expungement of other convictions.

The case that counsel has cited, In re Podias, 284 N.J. Super. 674 [(App. Div. 1995), certif. denied, 143 N.J. 517 (1996),] reflects that the New Jersey Appellate Court rejected an expungement petition when a defendant had P.T.I. in New Jersey citing 2C:52-14(f) which provides that there can be no expungement when a person seeking the relief of expungement of a conviction has prior or subsequent to said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program.

[Counsel] . . . says . . . the charges were never dismissed in Florida. . . . I think that really exerts form over substance.

What happened was that [in the Florida criminal matter, defendant] sought supervisory treatment or was granted supervisory treatment or diversionary treatment and under the statute . . . the application to expunge must be denied.

On appeal, defendant argues:

THE TRIAL JUDGE ERRED IN RULING THAT N.J.S.A. 2C:52-14f BARRED THE EXPUNGEMENT OF THREE (3) NEW JERSEY DISORDERLY PERSONS CONVICTIONS OF A DEFENDANT WHO HAS BEEN ARRESTED AND CHARGED IN FLORIDA WITH A CRIME BUT WHOSE FLORIDA CHARGE, WHILE FULLY RESOLVED, WAS NOT DISMISSED FOLLOWING COMPLETION OF A SUPERVISORY TREATMENT OR OTHER DIVERSION PROGRAM.

In this respect, N.J.S.A. 2C:52-14 provides that:

A petition for expungement filed pursuant to this chapter shall be denied when:

. . . .

f. The person seeking the relief of expungement of a conviction for a disorderly persons, petty disorderly persons, or criminal offense has prior to or subsequent to said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program.

[Emphasis added.]

Defendant contends that regardless of whether the Florida probationary sentence was the equivalent of "a supervisory treatment or other diversion program," she was not "granted [a] dismissal of [the Florida] criminal charge . . . ." Therefore, facially, N.J.S.A. 2C:52-14(f) cannot apply to bar expungement of the remaining New Jersey disorderly persons convictions.

We disagree. Under Florida law and at the time of defendant's sentencing, see footnote 1, supra, an "adjudication of guilt withheld" was a sentencing alternative designed to avoid creating a criminal record where a defendant is thought to be a good prospect for rehabilitation. Sanchez v. Florida, supra, 541 So. 2d at 1141. Accord United States v. Gispert, 864 F. Supp. 1193, 1199 (S.D. Fla. 1994) ("Clearly, the purpose of Florida Statute 948.01 [authorizing, as a sentence alternative, an "adjudication of guilty withheld"] was to prevent a defendant . . . from being branded a 'convicted' felon"). That is precisely the purpose to be served by our diversion programs such as the Pretrial Intervention Program. See State v. Negran, 178 N.J. 73, 80 (2003); State v. Brooks, 175 N.J. 215, 223 (2002).

Alternatively, we are inclined to agree with the State that the effect of defendant's nolo contendere plea and its disposition is, in any event and under current Florida law, a disqualifying conviction. See N.J.S.A. 2C:52-3. In disagreeing, defendant relies upon Batchelor v. Florida, 729 So. 2d 956 (Ct. of App. 1st Dist. 1999), which had held that a nolo contendere plea followed by a withholding of adjudication is not a conviction because there is neither an admission of guilt or adjudication of guilt. See also Garron v. Florida, 528 So. 2d 353 (Fla. 1988).

Recently, however, the Florida Supreme Court has rejected Batchelor, along with several other intermediate Florida court decisions, which had held that a nolo contendere plea with an adjudication of guilt withheld was not the equivalent of a conviction. Montgomery v. State, 897 So. 2d 1282, 1283 (Fla. 2005). The Court said:

The issue in this case is whether a plea of nolo contendere, where adjudication of guilt has been withheld, serves as a prior conviction for purposes of the sentencing guidelines. For sentencing purposes, Chapter 921, Florida Statutes, provides that prior convictions are scored on the sentencing guidelines worksheet in computing a defendant's sentence. See 921.0014, Fla. Stat. (2002). Section 921.0021 defines a conviction as "a determination of guilt that is the result of a plea or trial, regardless of whether adjudication is withheld." See 921.0021(2), Fla. Stat. (2002); see also Fla. R. Crim. P. 3.701(d)(2) ("'Conviction' means a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.") . . . .

Prior record is defined as "a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense." 921.0021(5), Fla. Stat. (2002). When these provisions are considered as a whole, the logical inference is that a no contest plea, where adjudication was withheld, is included as a conviction because the statute does not distinguish between guilty pleas and nolo contendere pleas.

[Id. at 1284, 1286.]

Although Montgomery concerns the use of nolo contendere pleas for sentencing purposes, we see no rational basis for disregarding the Florida Legislature's clear definition of a "conviction" as including such pleas, even where adjudication of guilt has been withheld, see Fla. R. Crim. P. 3.701(d)(2), in the context of a New Jersey defendant's entitlement to a statutory expungement. Defendant, therefore, does not fall within the parameters of N.J.S.A. 2C:52-3 which, pertinent here, authorizes expungements of disorderly or petty disorderly offenses only of a person "who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction. . . ." Indeed, defendant's three New Jersey convictions here, coupled with her Florida conviction, per se disqualify her as the statue permits expungement only if a defendant "has not been convicted . . . of another . . . three . . . offenses. . . ." N.J.S.A. 2C:52-3. Cf. State v. Ochoa, 314 N.J. Super. 168, 172 (App. Div. 1998).

 
Affirmed.

An "adjudication of guilt withheld" as a sentencing alternative is now prohibited for certain offenses, including second-degree felonies. Fla. Stat. 775.08435. Fla. R. Crim. P. 3.670 has been amended by the Florida Supreme Court to reflect that change. In re Amendments to the Fla. Rules of Crim. Procedure, 900 So. 2d 528 (Fla. 2005).

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A-1732-04T5

December 22, 2005