STATE OF NEW JERSEY v. DANIEL DAVIES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1454-08T41454-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL DAVIES,

Defendant-Appellant.

_________________________________

 

Submitted April 21, 2010 - Decided

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 06-09-0316.

Yvonne Smith Segars, Public Defender, attorney for appellant (Elizabeth H. Smith, Designated Counsel, of counsel and on the brief).

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Thomas J. Reed, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Daniel Davies, appeals from two discrete and successive rulings of the Criminal Part. First, he appeals an order dated March 23, 2007 denying his motion to dismiss the indictment because of alleged failure by the State to present exculpatory evidence to the grand jury. Second, he appeals the trial court's inclusion, as part of its admission of defendant on August 12, 2008 into the pretrial intervention ("PTI") program, of a condition that defendant plead guilty to the third-degree offense of resisting arrest, N.J.S.A. 2C:29-2a(3)(a). Having considered defendant's arguments in light of the record and the applicable law, we affirm the denial of the motion to dismiss the indictment. However, we vacate the inclusion of the impermissible extraction of a guilty plea as a condition of defendant's admission into the PTI program.

The indictment charged defendant with second-degree disarming of a law enforcement officer, N.J.S.A. 2C:12-11(a) (Count One); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (Count Two); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (Count Three). The indictment stemmed from an incident in Montague Township on June 24, 2004, during which defendant confronted Sussex County employees who were engaged in tree-trimming activities near defendant's rural dwelling and two sheriff's officers who were on the scene for traffic control during the tree removal. Defendant and his wife apparently challenged the authority of the County employees to be on the premises, accusing them of trespassing. After sticks and rocks were hurled at one of the workers who was in an aerial bucket, a sheriff's officer told defendant that he was under arrest.

According to the State's proofs, defendant resisted being handcuffed and tried to remove the gun of one of the officers from its holster. He then fled into his house with other family members. Shortly thereafter, one of the County workers saw defendant pointing what was perceived to be a gun out of an upstairs bedroom window. After about an hour passed, defendant reemerged from the house, but was yelling and acting aggressively. An officer tackled defendant and he was eventually subdued and handcuffed.

In moving to dismiss the indictment, defendant claimed that the prosecutor failed to inform the grand jurors about an ongoing dispute between defendant and the County road department, including prior civil litigation resulting in a court order that had restricted the County's tree-cutting authority. Defendant also contends that the grand jurors should have been presented with a 9-1-1 audiotape, or a transcript of that tape, which allegedly portrayed defendant and his family in a more favorable light.

In his oral ruling denying the motion to dismiss the indictment, the trial judge concluded that the State had no obligation to present to the jurors the additional background information concerning defendant's ongoing dispute with the County, nor was it obligated to present any other allegedly exculpatory information under State v. Hogan, 144 N.J. 216 (1996). Among other things, the trial judge found that one of the exhibits that was presented to the grand jury did, in fact, reveal that there was a pending "legal action" between defendant and the County concerning proposed tree-cutting that was scheduled to be heard by the civil court. The trial judge also observed that, regardless of the merits of defendant's position in the civil action, he had no right to resist the police when they attempted to arrest him. The judge further noted that the grand jury "is not intended to be a full adversarial process[,]" that the State's presentation to the grand jurors was not "off the mark[,]" and that defendant would still have the ability to adduce exculpatory evidence if the matter were tried.

Our standard of review in examining the trial court's denial of the motion to dismiss the indictment is limited. A decision on whether to dismiss an indictment is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). An indictment should be dismissed "'only on the clearest and plainest ground,' and only when the indictment is manifestly deficient or palpably defective." Hogan, supra, 144 N.J. at 228-29 (quoting State v. Perry, 124 N.J. 128, 168 (1991)) (internal citations omitted).

We detect no such abuse of discretion or manifest deficiency in the grand jury process here. Although Hogan acknowledged that grand jurors should be advised of certain "clearly exculpatory" proof that "directly negates the guilt" of a defendant, the Supreme Court also noted in Hogan that an indictment should be dismissed on that basis only in "rare" situations, and that "courts should act with substantial caution before concluding that a prosecutor's decision [to not present certain allegedly-exculpatory proofs] was erroneous." Id. at 236-39. Given these standards, we are satisfied that the denial of defendant's motion to dismiss in this case was appropriate, substantially for the reasons articulated in the trial judge's oral opinion.

We reach a different conclusion on the PTI issue. The record clearly shows that the prosecutor would consent to defendant's admission into the PTI program only if defendant, as a condition of that disposition, would plead guilty to a third-degree offense of resisting arrest. The prosecutor imposed that condition after defendant had initially been rejected as a candidate for PTI, and the trial court had upheld that initial rejection. The plea conditions also required that defendant be enrolled successfully in PTI for a period of twelve months and perform one hundred hours of community service. If defendant successfully completed PTI, the guilty plea would then be vacated and the criminal charges dismissed. If, on the other hand, defendant failed PTI, then and only then could he appeal the original rejection of his admission into PTI.

In an order dated November 16, 2007, the trial court rejected defendant's motion to strike the guilty plea as a condition of the PTI arrangement. Subsequently, on August 12, 2008, defendant entered into a conditional guilty plea, agreeing to abide by the terms of the PTI program and pleading guilty to the third-degree resisting arrest charge. Paragraph 13 of the plea agreement recites these dispositional terms as follows:

PTI with 1 year as specified in consent order of enrollment. Plea is pursuant to R. 3:9-3(f) and defendant has a right to appeal prior determination regarding the requirement of entry of guilty plea as a condition of PTI.

This conditional arrangement was further confirmed in the plea colloquy, in which the trial judge ascertained that defendant understood that "should [he] be terminated from PTI that the matter would then come before the [c]ourt for sentencing subject to his attorney's ability to seek an appeal with the Appellate Division of the prior determination of the [c]ourt that [he] enter a plea of guilty before PTI could be considered[.]"

Defendant consequently enrolled in the PTI program. He then filed the instant appeal, raising not only the trial court's denial of the motion to dismiss the indictment but also the forced inclusion of the guilty plea as a condition of PTI admission. At the time defendant filed his brief on appeal on June 17, 2009, less than twelve months since the time of sentencing had passed and defendant apparently was still enrolled in the PTI program. The State's responsive brief filed on November 17, 2009, more than twelve months after defendant was admitted to PTI, does not enlighten us as to whether defendant had successfully completed the required one-year peirod of PTI. The State argues that, in any event, defendant has failed to show that he has been harmed by the plea arrangement and the PTI condition.

We recognize that PTI, as it is statutorily established in N.J.S.A. 2C:43-12 and as implemented in our criminal courts under Rule 3:28, is a discretionary program. Admission into PTI requires a positive recommendation from the program director and also the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). The prosecutor's assessment is to be guided by seventeen factors enumerated in the PTI statute. N.J.S.A. 2C:43-12e(1) through (17). We are also mindful that "courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing Nwobu, supra, 139 N.J. at 246). We further are cognizant that the scope of judicial review of a prosecutor's objection to a defendant's admission into PTI generally is very limited. Ibid.; see also Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979).

That being said, it also is plain that the PTI Guidelines expressly forbid prosecutors from conditioning, whether formally or informally, a defendant's entry into the PTI program upon a plea of guilt to a criminal offense. See Pressler, Current N.J. Court Rules, Guideline 4 to R. 3:28 (2010). As we observed not long ago in State v. Mosner, 407 N.J. Super. 40, 56 (App. Div. 2009),"'[e]nrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilty. Enrollment of defendants who maintain their innocence should be permitted unless the defendant's attitude would render pretrial intervention ineffective.'" Id. at 56 (quoting Pressler, supra, Guideline 4 to R. 3:28). Moreover, "[r]ejection of PTI admission should only occur where 'it is unlikely that behavioral change can occur as a result of short-term rehabilitative work.'" Ibid.

Consequently, the prosecutor's insistence in the present case on defendant entering into a guilty plea albeit a conditional one subject to being potentially vacated in the future upon successful completion of PTI was contrary to the program's statutory purpose and Guidelines.

Having concluded that the guilty plea was improperly imposed as a condition of PTI admission, the question then becomes what remedy should be applied, beyond simply vacating that aspect of the plea agreement. Because more than a year has passed since the August 2008 disposition, it may very well be the case that defendant has already completed the PTI program successfully and that the guilty plea will be vacated anyway consistent with the negotiated agreement. If that is so, then our disposition simply creates a second and independent basis for vacating the guilty plea, and leaving the remainder of the PTI disposition intact.

If, on the other hand, defendant has not yet completed PTI successfully, then further examination of the remedial options flowing from our determination of an invalid condition is warranted. Such an examination, if it proves to be necessary, should be conducted in the first instance in the trial court, subject to our potential review thereafter. In fashioning a remedy, the trial court shall ensure that defendant is not made worse off for having taken this meritorious appeal of the PTI issue.

 
Affirmed in part, and vacated in part. The matter is remanded for corrective action by the trial court and, if necessary, further proceedings consistent with this opinion.

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A-1454-08T4

 

June 18, 2010