STATE OF NEW JERSEY v. TERRELL M. LUCAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5620-07T45620-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRELL M. LUCAS,

Defendant-Appellant.

__________________________

 

Submitted May 12, 2010 - Decided

Before Judges Cuff and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-06-0967.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief; Christopher Shea O'Donnell, Legal Assistant, on the brief).

PER CURIAM

Defendant Terrell M. Lucas pled guilty to third degree attempted theft from the person. The judge imposed a three-year probationary term in accordance with the plea agreement. The central issue in this appeal is whether defendant has the right to apply to the Pretrial Intervention Program (PTI), not whether he would have been admitted to PTI. We conclude that defendant was mistakenly deprived of the opportunity to apply for PTI. We reverse and remand to allow defendant to do so. Accordingly, we do not reach defendant's substantive arguments that the factual basis was inadequate and the sentence was excessive.

Defendant and codefendant Tyshawn Jackson were indicted and charged with second degree conspiracy to commit robbery, N.J.S.A. 2C:15-1a(2) and N.J.S.A. 2C:5-2 (Count One). A juvenile codefendant was charged in Family Court.

At arraignment, the assistant prosecutor informed defendant he could apply to PTI but he would probably be ineligible because he previously had a conditional discharge. At that time, the judge, assistant prosecutor and defense counsel believed that defendant had previously received a conditional discharge. The following exchange occurred at arraignment:

[DEFENSE COUNSEL]: Will you permit the application?

[ASSISTANT PROSECUTOR]: Yes, he can apply, but --

[DEFENSE COUNSEL]: Okay. I'd like to have that done today.

THE COURT: He's had a conditional discharge.

TEAM LEADER: . . . [O]n our list it says he's ineligible. . . .

. . . .

TEAM LEADER: They indicated on our list he's ineligible to apply.

[DEFENSE COUNSEL]: . . . If that's the case, then he can't apply, previous conditional discharge.

TEAM LEADER: Correct.

About six weeks later, defendant pled guilty to third degree attempted theft from a person (as amended), N.J.S.A. 2C:20-3. At the plea, defendant testified that he and the codefendants attempted to take something from the victim who was walking away from an ATM. In attempting to take something from the victim, they acted together and had a look-out. He admitted they distracted the victim by asking him questions.

Defendant was sentenced two and one-half months later to three years probation. At sentencing, the assistant prosecutor and defense counsel knew defendant had not received a conditional discharge and defendant repeated his desire to apply to PTI. At this time, the assistant prosecutor stated she would not allow the PTI application because defendant had been charged initially with a second degree crime and defendant had a record as a juvenile. The following exchange occurred at sentencing:

[DEFENSE COUNSEL]: [O]n June 27th, [2007] [pre-arraignment conference] . . . I sent a letter to [the] Assistant Prosecutor . . . the purpose of this letter is to request [the prosecutor's] consent of the defendant's application to the [PTI].

. . . .

[A]t the arraignment . . . I requested permission from the prosecutor to apply for PTI but [the prosecutor] said that my client has a prior conditional discharge so this makes even an application not possible. . . . [T]there is no conditional discharge, Judge.

. . . .

I'd like him to have the opportunity to apply for PTI. . . .

[ASSISTANT PROSECUTOR]: . . . [E]ven if he doesn't have a conditional discharge, I would not have given the authority to apply.

. . . .

THE COURT: Forget the conditional discharge. Would you or would you not allow the application?

[ASSISTANT PROSECUTOR]: We would not allow the application.

. . . .

[DEFENSE COUNSEL]: . . . [S]he [assistant prosecutor] would not have permitted even an application . . . it's left for the appellate process.

[Emphasis added.]

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN FAILING TO ALLOW DEFENDANT TO APPLY FOR PRETRIAL INTERVENTION OVER THE STATE'S OBJECTION, SINCE THE DEFENDANT HAD INITIALLY OBTAINED THE CONSENT OF THE STATE AND WAS ELIGIBLE FOR PTI AND SINCE THE CO-DEFENDANT CHARGED WITH THE SAME OFFENSE WAS ADMITTED TO THE PROGRAM.

POINT II

THE DEFENDANT'S PLEA WAS DEFECTIVE BECAUSE THE COURT FAILED TO ELICIT A SUFFICIENT FACTUAL BASIS FOR THE OFFENSE OF ATTEMPTED THEFT (NOT RAISED BELOW).

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW).

At the plea proceeding, the parties focused on whether defendant would have been admitted into PTI, not whether he had the right to apply. In State v. Green, 407 N.J. Super. 95, 99 (App. Div.), certif. granted and remanded by 200 N.J. 471 (2009), we held that the Criminal Division Manager must allow a defendant to submit an application to PTI and must evaluate the application. Moreover, the PTI Guidelines provide that all defendants must be permitted to apply.

GUIDELINE 2. Eligibility for PTI is broad enough to include all defendants who demonstrate sufficient effort to effect necessary behavioral change and show that future criminal behavior will not occur. Any defendant accused of crime shall be eligible for admission into a PTI program. When the application indicates factors which would ordinarily lead to exclusion under the guidelines established hereinafter, the applicant nevertheless shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the defendant's amenability to the rehabilitative process, showing compelling reasons justifying the defendant's admission, and establishing that a decision against enrollment would be arbitrary and unreasonable.

[Guidelines for Operation of Pretrial Intervention in N.J., Pressler, Current N.J. Court Rules, Guideline 2 to R. 3:28 at 1063 (2010) (emphasis added).]

Defendant was mistakenly deprived of the opportunity to apply for PTI. We reverse and remand to permit defendant to submit his PTI application for consideration. Based on this disposition, we do not reach defendant's substantive arguments that the factual basis was inadequate and the sentence was excessive.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

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A-5620-07T4

 

May 28, 2010