STATE OF NEW JERSEY v. RONALD W. WERKHEISER
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2355-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONALD W. WERKHEISER,
Defendant-Appellant.
________________________________
Submitted: March 3, 2010 - Decided: May 12, 2010
Before Judges Stern and Graves.
On appeal from the Superior Court of New
Jersey, Law Division, Criminal Part, Warren
County, Indictment No. 07-02-0059.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Michael B. Jones,
Assistant Deputy Public Defender, of counsel
and on the brief).
Thomas S. Ferguson, Warren County Prosecutor,
attorney for respondent (Dit Mosco, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Following his plea to conspiracy to possess cocaine with
intent to distribute cocaine and possession of cocaine,1 and
sentence to two years probation conditioned upon the service of
1
No issue of merger is raised.
15 days service in the County Jail, defendant appeals the
prosecutor's denial of defendant's enrollment into the pretrial
intervention program (PTI). He contends that the prosecutor's
basis for rejecting enrollment and the judge's reliance upon the
prosecutor's report of "no cooperation" were inappropriate and
that, in any event, the prosecutor's denial of consent for
enrollment into PTI constituted "a patent and gross abuse of
discretion."
PTI was not designed to be a prosecutor's tool to gain
cooperation, and in fact acknowledgment of guilt is not required
under the guidelines. What we recently said in State v. Monser,
407 N.J. Super. 40, 55-56 (App. Div. 2009), applies in this
case:
A "[d]efendant generally has a heavy
burden when seeking to overcome a
prosecutorial denial of his admission into
PTI." [State v. Watkins,
193 N.J. 507, 520
(2008)] (citing State v. Nwobu,
139 N.J.
236, 246-47,
652 A.2d 1209 (1995)). 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. Hoffman, 399 N.J.
Super. 207, 213,
943 A.2d 910 (App. Div.
2008) (quoting State v. Watkins, 390 N.J.
Super. 302, 305,
915 A.2d 561 (App. Div.
2007), aff'd,
193 N.J. 507,
940 A.2d 1173
(2008)). See also Negran, supra, 178 N.J.
at 82,
835 A.2d 301; Brooks, supra, 175 N.J.
at 225,
814 A.2d 1051; Nwobu, supra, 139
N.J. at 246,
652 A.2d 1209; Motley, supra,
369 N.J. Super. at 321,
848 A.2d 875. "A
A-2355-07T4
2
patent and gross abuse of discretion is
defined as a decision that 'has gone so wide
of the mark sought to be accomplished by PTI
that fundamental fairness and justice
require judicial intervention.'" Watkins,
supra,
193 N.J. 576, 582-83,
684 A.2d 1355
(1996)). "Ordinarily, an abuse of
discretion will be manifest if defendant can
show that a prosecutorial veto (a) was not
premised upon a consideration of all
relevant factors, (b) was based upon a
consideration of irrelevant or inappropriate
factors, or (c) amounted to a clear error in
judgment." State v. Bender,
80 N.J. 84, 93,
402 A.2d 217 (1979).
Prosecutors are granted "wide latitude
in deciding whom to divert into the PTI
program and whom to prosecute through a
traditional trial." Negran, supra,
178 N.J.
at 82,
835 A.2d 301. We afford the
prosecutor's decision great deference.
Wallace, supra,
146 N.J. at 589,
684 A.2d 1355; State v. Leonardis,
73 N.J. 360, 381,
378 A.2d 607 (1977)); State v. Kraft,
265 N.J. Super. 106, 111,
625 A.2d 579 (App.
Div. 1993). For that reason, "[t]he scope
of judicial review of a decision to reject a
PTI application is 'severely limited.'"
Hoffman, supra,
399 N.J. Super. at 213,
943 A.2d 910 (App. Div. 2008). See also
Leonardis, supra,
73 N.J. at 381,
375 A.2d 607. A trial court can only overturn a
prosecutor's decision to deny PTI upon
finding a patent and gross abuse of
Kraft, supra, 265 N.J. Super.
discretion.
at 112-13,
625 A.2d 579.
The fundamental question before us is
whether, under the circumstances of this
case, the prosecutor could condition
defendant's PTI admission on a guilty plea
to a motor vehicle charge carrying a
mandatory term of imprisonment. "Enrollment
in PTI programs should be conditioned upon
their neither informal admission nor entry
A-2355-07T4
3
of a plea of guilty. Enrollment of
defendants who maintain their innocence
should be permitted unless the defendant's
attitude would render pretrial intervention
R. 3:28, Guideline 4. See
ineffective."
also N.J.S.A. 2C:43-12g. Rejection of PTI
admission should only occur where "it is
unlikely that behavioral change can occur as
a result of short-term rehabilitative work."
Pressler, Current N.J. Court Rules, comment
on R. 3:28, Guideline 4.
[(Id.)]
Defendant asserts he was enrolled in PTI before the
prosecutor "decided that defendant had not complied with the
cooperation agreement" they executed, and thereafter "withdrew
his consent for defendant's admission." If so, defendant would
be entitled to a hearing on the claim that he did not honor the
agreement to cooperate. Rule 3:28(b)(3).
While the judge's opinion on the PTI appeal reveals that
defendant "was informed by Criminal Case Management that he
[was] approved for the program" and "[d]efendant executed the
Standard Conditions of PTI Supervision and the Criminal Division
Program Director executed an Order of Postponement," no such
order appears to have been executed by the prosecutor or judge,
and none is in the record before us.2 Thus, defendant was not
actually enrolled in PTI when the program director decided,
based on the prosecutor's report that defendant breached the
2
Only the PTI Director's signature is on the form.
A-2355-07T4
4
condition of his consent by not honoring the cooperation
agreement, to re-evaluate his decision to admit defendant into
the program. The Criminal Division Manager then decided to
reject defendant's application, stating that defendant's
"willingness to cooperate . . . was a significant factor in our
initial decision."3 Criminal Case Management then listed reasons
for rejection, including the adverse impact on the "prosecution
of co-defendants."
The PTI judge expressly found that "[t]he prosecutor has
not consented to defendant's admission to PTI and, indeed, the
defendant has not been admitted into the PTI program."
Moreover, the agreement defendant signed with the prosecutor
emphasizes the need for, and terms of, cooperation as a
condition.
As defendant was never enrolled in PTI, and the record
sustains a basis by the program director for rejecting defendant
at the time of rejection, independent of his lack of
cooperation, we conclude that defendant is not entitled to a
termination hearing to evaluate the claim of lack of
3
At sentencing defense counsel stated "[t]here are 10 co-
defendants in this case. The defendant submits that he's the
least-culpable of all of the co-defendants." He also pointed
out that his burglary and larceny convictions were twenty-five
years old. On the prior PTI appeal, counsel pointed out that
the last prior conviction occurred in 1982, and that "the last
co-defendant" was being sentenced the next day.
A-2355-07T4
5
cooperation,4 that there was no "patent and gross abuse" of
discretion by the prosecutor, and that the order denying
enrollment must be affirmed.5
Affirmed.
4
Defendant never expressly claimed that he, in fact, performed
the acts required by the agreement.
5
Accordingly, this is not the occasion to consider the impact of
a prosecutor's desire for a plea of guilty to an offense other
than a motor vehicle offense or for cooperation in a prosecution
involving co-defendants, or what a prosecutor may do to assure a
conviction if enrollment might jeopardize a prosecution against
the defendant should he or she be terminated from the program a
year or two after enrollment.
A-2355-07T4
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