STATE OF NEW JERSEY v. TODD R. KETTERMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5991-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TODD R. KETTERMAN,

Defendant-Appellant.

____________________________

 

Submitted March 23, 2009 - Decided

Before Judges Reisner and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-10-0740.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (Michael McLaughlin, Assistant Prosecutor, on the brief).

PER CURIAM

By leave granted, defendant Todd R. Ketterman appeals from an order dated June 26, 2008 terminating him from participation in the Pretrial Intervention Program (PTI). We reverse and remand for further proceedings.

I

In 2004, defendant was indicted for fourth-degree willful non-support, N.J.S.A. 2C:24-5. On March 31, 2005, defendant entered into a plea agreement pursuant to which he pled guilty in exchange for being admitted to PTI. As a condition of the plea agreement, defendant was required to comply with an order of postponement entered March 31, 2005, which provided that he was to pay $42,834 in child support arrears at the rate of $300 per month, plus any current support obligation, until he paid off the arrears. The order contemplated that defendant was to pay off the arrears in full within thirty-six months, which would have required him to pay a substantial lump sum at the end of the third year. The plea agreement provided that if defendant was terminated from PTI, he would be returned to court for sentencing pursuant to his guilty plea. On the other hand, if he successfully completed PTI, he would be permitted to retract his guilty plea and the State would move to dismiss the indictment.

In November 2005, the Family Part entered an order denying defendant's motion to reduce child support, but providing that he could renew his motion and, if he did so, any reduction granted would be retroactive "to the filing of Defendant's instant motion."

On March 5, 2008, the Probation Division notified defendant that he had failed to pay the arrears "in the amount of $48,834" and that his current arrears were $59,441. Therefore, Probation was recommending that defendant be terminated from PTI. The letter acknowledged that defendant had a pending motion to reduce his child support. That motion was decided by order of May 2, 2008. The application to terminate defendant from PTI was heard on June 10, 2008.

At the hearing, the State presented testimony from a Probation employee, John Cannistraro, who was filling in for defendant's regular probation officer because she was on vacation at the time of the hearing. Cannistraro testified that the court's automated case management system (ACMS) showed that defendant owed $59,441 in support arrears. However, he acknowledged that by order of May 2, 2008, a different judge had reduced defendant's monthly support obligation to $1272.80 from $2301, "plus $500 for child support arrears every month." Cannistraro testified that in the three years since defendant was admitted to PTI in March 2005, he had paid approximately $150,000 in child support. However, he should have paid approximately $198,000. Cannistraro was unable to say whether defendant had ever advised Probation that he was having difficulty making his required payments.

Cannistraro also admitted that he did not handle child support matters and therefore could not testify as to what amount of defendant's payments had gone to current support obligations and what portion represented payment of arrears. He further agreed that the PTI order provided that defendant's arrears were "subject to reduction by a court of competent jurisdiction." However, he did not know what impact, if any, the recent order reducing defendant's child support might have had on the arrears, that is, whether the reduction was retroactive.

Defendant testified that his child support had been reduced. On the court's inquiry, defense counsel argued that the May 2, 2008 order, together with the November 2005 order, should be construed as retroactively reducing defendant's child support back to November 2005. The judge hearing the PTI matter concluded that if the May 2 order did not specifically address the arrears, then they were not reduced. Counsel admitted that defendant had not paid the full amount of the approximately $42,000 in arrears.

Defendant testified that he was supposed to pay a total of $1800 a month, which included a portion for arrears. However, because "the system" inaccurately recorded his total obligation as $2300 per month, he was not being credited with any payments toward the arrears. He also testified that his motions to reduce his support obligation dragged on for three years, and that he did not pay the entire arrears because he did not know the correct amount. He explained that he had paid $1800 a month for thirty-six months and that if the system had reflected the correct amount of monthly child support, his arrears would have been significantly reduced. Defendant was unable to say exactly how much he thought he owed in arrears; he estimated that he might owe $20,000. At this point, the court interjected, "we need go no further than that because, unfortunately, my own hands are tied with regard to - whatever the arrearages were, they were to have been paid within that 36 month period of time that you were in PTI. They haven't been."

Defense counsel argued that her client had spent much of the past three years trying to get the court system to correct the mistake in the computer system concerning what he owed in current support. Unless that was corrected, he would never be credited with reductions to the arrears. She argued that until Probation corrected its records, she could not say whether defendant had actually paid the arrears in full. The judge indicated his view that he had no discretion to extend PTI beyond thirty-six months, and that no matter what amount was in arrears or why, he had no discretion not to dismiss defendant from PTI.

II

On this appeal, defendant raises the following points for our consideration:

POINT I: IT WAS NOT AN EXERCISE OF SOUND DISCRETION THAT LED THE JUDGE TO TERMINATE DEFENDANT'S ENROLLMENT IN PTI AND THE ORDER MUST BE REVERSED.

POINT II: THE STATE'S DECISION TO DENY PTI UNLESS DEFENDANT ENTERED A GUILTY PLEA VIOLATES RULE 3:28, GUIDELINE 4, WHICH PROHIBITS MAKING ENTRY OF A GUILTY PLEA A PREREQUISITE TO ENROLLMENT IN PTI.

Although we have serious concerns about the legality of requiring defendant to plead guilty as a condition of PTI admission, we will not decide the issue because it was not within the scope of defendant's motion for leave to appeal nor our order granting leave to appeal. Defendant may raise the issue during the proceedings on remand.

Turning to Point I, the PTI statute provides that if a defendant violates the terms of PTI, the trial judge has discretion to determine whether the violation warrants defendant's dismissal from the program:

Upon violation of the conditions of supervisory treatment, the court shall determine, after summary hearing, whether said violation warrants the participant's dismissal from the supervisory treatment program or modification of the conditions of continued participation in that or another supervisory treatment program.

[N.J.S.A. 2C:43-13e (emphasis added).]

In State v. Devatt, 173 N.J. Super. 188 (App. Div.), certif. denied, 84 N.J. 441 (1980), we held that the court had discretion whether to dismiss a defendant from PTI, but we cautioned that the court must exercise that discretion in a manner consistent with due process. Id. at 194. As in this case, the prosecution sought defendants' dismissal from PTI due to their failure to make required payments:

It is evident, then, that before termination may be ordered, minimum due process requires the State to afford defendants an opportunity to be confronted with evidence in support of or to present evidence against the conclusion that mere noncompliance with a condition justifies withdrawal of the diversionary privilege. Thus, the mere failure to make full restitution within the prescribed time period may not in itself support the conclusion that defendants have failed or refused to cooperate in such a wilful and knowing manner as to have forfeited their right to further participation.

Although the procedure on a termination hearing need not follow all of the formalities of a criminal trial nor be limited by the strict rules of evidence, the court must determine whether a factual basis exists for the conclusion that defendants have wilfully violated PTI conditions in a manner or under such circumstances as to justify termination of their right to further participation in the program. We see no reason to distinguish such a determination from that required in probation revocation proceedings.

. . . .

The proof need not be established to any particular degree but must satisfy the judge in the exercise of sound discretion that the application to terminate is warranted. This requires a conscientious judgment which takes into account the particular circumstances of the individuals in deciding their fitness to continue within the diversionary program.

[Id. at 194-95.]

In Devatt, the issue was whether defendants could afford to make restitution to the welfare board. Here, the question was whether defendant actually owed arrears or whether, due to miscalculation of his basic child support amount, Probation had failed to credit him with making the payments. Further, defendant's good faith was in issue. If defendant's testimony was credible, he had not willfully failed to pay. Rather, he had not paid the lump sum due at the end of the three years because there was a substantial issue as to the correct amount. The State was unprepared to address that issue, because it produced a witness who was completely unfamiliar with the rudiments of child support much less with the specifics of defendant's file.

We conclude that the result was a miscarriage of justice. The judge mistakenly believed that he had no discretion to decide whether or not to dismiss defendant from PTI, and the State did not present enough evidence to permit the judge to exercise that discretion. Further, if defendant in fact did not make the full lump sum payment because of a good faith issue as to the amount, he should be given a reasonable opportunity to pay the lump sum once the amount is settled. We therefore reverse the order on appeal and remand for a rehearing.

 
Prior to the hearing, the Probation Division shall confer with defendant's counsel in a good faith effort to determine what defendant actually owes in arrears. If the parties cannot agree, the Criminal Division may stay the PTI remand hearing to give defendant an opportunity to file a motion on short notice with the Family Part for a declaratory ruling as to the amount of arrears defendants owes. On any remand hearing, the State shall produce a probation officer who is knowledgeable about child support and familiar with defendant's file.

Reversed and remanded.

State v. Pellegrino, 254 N.J. Super. 117 (App. Div. 1992), likewise recognized the trial court's discretion in applications to dismiss a defendant from PTI. However, in that case the trial court mistakenly exercised its discretion in refusing to terminate a defendant from PTI after he was convicted of distributing LSD while participating in the PTI program. Id. at 120-21.

(continued)

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9

A-5991-07T4

April 7, 2009