STATE OF NEW JERSEY IN THE INTEREST OF A.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY

IN THE INTEREST OF A.R.

________________________

July 31, 2013

 

Submitted July 24, 2013 - Decided

 

Before Judges Reisner and Yannotti.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FJ-04-1311-13.

 

Warren W. Faulk, Camden County Prosecutor, attorney for appellant State of New Jersey (Jamie Hutchinson, Assistant Prosecutor, of counsel and on the brief).

 

Law Offices of Edward J. Crisonino, attorney for respondent A.R.

PER CURIAM

By leave granted, the State appeals from a trial court order denying its motion to waive A.R., a juvenile, to adult court pursuant to N.J.S.A. 2A:4A-26.1 For the reasons that follow, we reverse and remand.

I

On November 12, 2012, A.R., then age sixteen, and a juvenile co-defendant, S.S., were arrested in Camden after State Troopers observed them engaging in what appeared to be hand-to-hand drug transactions outside an apartment complex. When the Troopers approached and attempted to arrest the two juveniles, S.S. surrendered, while A.R. fled into an apartment inside one of the buildings. He was soon apprehended and, in the apartment, the Troopers found four handguns and forty-six heat-sealed bags of crack cocaine. When the Troopers contacted the apartment's tenant, he denied having given the juveniles permission to enter or use the apartment.

A.R. was charged with fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2). Both juveniles were charged with third-degree possession of crack cocaine, N.J.S.A. 2C:35-10a(1); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5b(3); four counts of second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b; four counts of second-degree possession of a handgun while committing a drug offense, N.J.S.A. 2C:39-4.1a; fourth-degree possession of a defaced handgun, N.J.S.A. 2C:39-3d; and third-degree burglary, N.J.S.A. 2C:18-2.

On February 26, 2013, S.S. accepted a plea bargain which permitted him to be adjudicated in juvenile court. During the plea colloquy, he incriminated A.R. in committing burglary, possessing the crack cocaine with intent to distribute, and knowing that at least one of the guns was in the apartment they were using as a stash house. A.R. rejected the State's plea offer, which would have allowed his charges to be resolved in juvenile court.

Thereafter, also on February 26, 2013, the Prosecutor's Office filed a series of amended charges against A.R. The upgraded charges included four counts of second-degree possession of a weapon for an unlawful purpose during the commission of a burglary or during the commission/in furtherance of the distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:39-4a; and fourth-degree possession of a firearm by a minor, N.J.S.A. 2C:58-6.1b.

On February 27, 2013, the Prosecutor's Office filed a motion to waive A.R.'s case to adult court. The motion was supported by a written statement of reasons, addressing the seven factors set forth in the Attorney General's Juvenile Waiver Guidelines. On March 8, 2013, the Prosecutor's Office filed an amended statement of reasons. Much of the statement was devoted to describing the different sanctions available in the adult justice system as opposed to the juvenile justice system. The statement also discussed the severe problems of drug crime and gun violence in the City of Camden. In particular, the statement recited:

Camden City has a high rate of violent crime and a particularly high rate of violent crime, and crimes involving possession of firearms, committed by juveniles and young adults. In fact, in 2012 Camden County experienced its highest homicide rate in history. As such, there is a real and distinct need for general deterrence of acts of violence in Camden County.

 

Addressing the need for specific deterrence of A.R., the statement noted that while he had "no prior history within the juvenile justice system," he was not "amenable to probationary treatment" because of the serious nature of the charges against him. The statement further recited that five days before his arrest on the current charges, A.R. "had been arrested and charged with other drug offenses." Two co-defendants had implicated A.R. in those earlier charges, which included CDS possession with intent to distribute.

The statement reasoned that, due to the prior charges and the fact that A.R. had now been arrested with "four firearms and CDS," effective deterrence required incarcerating him for a longer period than the juvenile justice system would permit. The statement distinguished S.S.'s situation, because S.S. had no prior arrest history, only entered the stash house once, surrendered immediately when confronted by the Troopers, and "was a relatively minor player with respect to this particular narcotics set." Although he had the "heavy burden" to demonstrate that the State's waiver decision was an abuse of discretion, State in re V.A., 212 N.J. 1, 29 (2012), defendant did not file a written response to the prosecutor's statement of reasons.

At the waiver hearing on March 12, 2013, State Trooper Jones testified that he observed the alleged drug transactions, and saw defendant go in and out of the stash house three or four times. He described defendant's flight and eventual arrest, and the discovery of the crack cocaine and guns in the apartment. Jones explained that when he apprehended defendant in the apartment and "forced [him] down to the ground," he saw a handgun lying on the carpet four or five feet from defendant.

In arguing against the waiver motion, defense counsel contended that the decision to seek waiver was based solely on A.R.'s refusal to accept a plea bargain. The prosecutor explained that her office routinely sought either waiver or a sentence to "Jamesburg" in any case involving weapons. She stated that in this case, the two juveniles were treated differently for several reasons. First, S.S. appeared to be less culpable in the drug activity. He also surrendered immediately, and he cooperated with the prosecution by giving a statement incriminating A.R. The prosecutor further stated that A.R. had a prior drug arrest. However, in explaining why S.S.'s case was treated differently, she also noted that S.S. accepted a plea agreement, while A.R. did not.

In an oral opinion issued immediately after the hearing, the judge found probable cause to charge defendant with the CDS and weapons offenses underlying the waiver motion. However, he concluded that it was an abuse of discretion for the prosecutor to seek to waive A.R.'s case to adult court based on his refusal to accept a plea deal, when, had he accepted the deal, his case would have remained in juvenile court.

The judge amplified his reasoning in a written decision issued April 1, 2013. He rejected the State's explanation that it had "no other choice but to seek waiver" when A.R. refused to accept a plea offer. He reasoned that the State "could bring the juvenile to trial in the Family Part." He also stated that the State's reason for seeking waiver was

[a]rbitrary and amounts to an abuse of discretion because the juvenile's decision to exercise his constitutional right to a trial (or even his decision not to accept the State's plea offer) are not delineated factors to be considered under the Guidelines. The prosecutor acted arbitrarily because it considered information outside the bounds set by the Guidelines when deciding to seek waiver.

 

. . . Although the State submitted a Statement of Reasons for waiver, the prosecutor stated multiple times during the hearing on March 12, 2013, that the reason for the waiver motion was the juvenile's decision not to accept the State's plea deal. . . . It is an affront to fair play and our system of justice to use waiver as a bargaining chip during plea negotiations . . . .

The judge also considered the apparent contradiction between the State's initial willingness to offer a plea deal that would allow a juvenile court disposition, and its later decision that deterrence required A.R.'s lengthy incarceration. He likewise reasoned that A.R.'s co-defendant was being treated more favorably, in avoiding waiver, only because S.S. accepted a plea deal. The judge also found the State gave only cursory consideration to A.R.'s lack of a prior record. II

In 2000, the Legislature amended the waiver statute to expand the prosecutor's authority to seek waiver of juveniles to adult court on serious criminal charges. See N.J.S.A. 2A:4A-26. If a juvenile over the age of fourteen is charged with certain serious crimes, the court "shall" waive the juvenile to adult court for trial, on the prosecutor's motion. N.J.S.A. 2A:4A-26a. The statute requires the Attorney General to promulgate guidelines for the prosecutor's exercise of discretion in the waiver decision. The statute provides, in relevant part:

a. On motion of the prosecutor, the court shall, without the consent of the juvenile, waive jurisdiction over a case and refer that case from the Superior Court, Chancery Division, Family Part to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing, that:

 

(1) The juvenile was 14 years of age or older at the time of the charged delinquent act; and

 

(2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute [one or more of the following types of enumerated offenses].

 

. . . .

 

d. A motion seeking waiver shall be filed by the prosecutor within 30 days of receipt of the complaint. This time limit shall not, except for good cause shown, be extended.

 

e. If the juvenile can show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, waiver shall not be granted. This subsection shall not apply with respect to a juvenile 16 years of age or older who is charged with committing any of the acts enumerated . . . .

 

f. The Attorney General shall develop for dissemination to the county prosecutors those guidelines or directives deemed necessary or appropriate to ensure the uniform application of this section throughout the State.

 

[N.J.S.A. 2A:4A-26.]

 

Pursuant to N.J.S.A. 2A:4A-26f, on March 14, 2000, the Attorney General adopted a set of Juvenile Waiver Guidelines (Guidelines), which require the prosecutor to consider the following factors:

1. Nature of the Offense

 

The prosecutor shall consider the nature of the offense, including:

 

1. The death of a victim during the course of the offense;

 

2. The nature and circumstances of the act;

 

3. The role of the juvenile therein;

 

4. The fact that there was grave and serious harm inflicted on the victim or the community;

 

5. The potential for grave and serious harm to the victim or the community; and

 

6. The use or possession of a weapon during the course of the offense.

 

2. Deterrence

 

The prosecutor shall consider the need for deterring the juvenile and others from violating the law.

3. Effect on Co-Defendants

 

The prosecutor shall consider the effect of waiver on the prosecution of any co-defendants, juvenile or adult, so as to avoid an injustice if similarly situated culpable individuals are tried in separate trials.

 

4. Maximum Sentence and Length of Time Served

 

The prosecutor shall consider and compare the maximum sentences that may be imposed under the juvenile or criminal codes and the amount of time likely to be served. Furthermore, the prosecutor may consider the likely effect on the amount of time served by the juvenile of enhanced sentencing provisions, such as the extended term provisions of the juvenile code contained in N.J.S.A. 2A:4A-44, the No Early Release Act, the Graves Act or any other mandatory or enhanced dispositions or sentences.

 

5. Prior Record

 

The prosecutor shall consider the juvenile's prior record, including:

 

1. The seriousness of any acts for which the juvenile has been adjudicated delinquent;

 

2. Any offenses for which the juvenile has been waived and convicted as an adult;

 

3. Any involvement of the juvenile with a gang; and

 

4. The history of the use of physical violence toward others and the extent to which the juvenile may present a substantial danger to others.

 

6. Trial Considerations

 

The prosecutor shall consider the likelihood of conviction and the potential need for a grand jury investigation.

 

7. Victim's Input

 

If there is an identifiable victim, the prosecutor should confer with the victim or victim's family regarding the victim's input on the waiver decision. However, the waiver decision rests with the prosecutor, not the victim.

 

[Guidelines, supra, at 5-6.]

Notably, the Guidelines also provide that "[n]othing in these guidelines shall preclude a prosecutor from accepting a guilty plea to one or more juvenile delinquency charges in lieu of waiver." Guidelines, supra, at 6.

In State in re V.A., the Court held that the abuse of discretion standard governs the prosecutor's waiver decision. V.A., supra, 212 N.J. at 8. The Court further held that in support of a waiver motion, the prosecutor must submit a statement of reasons demonstrating consideration of the factors set forth in the Guidelines and showing how the Guidelines apply to the specific juvenile for whom waiver is sought. Because waiver is the "'norm'" where the statutory criteria are met, the juvenile carries a "heavy burden to clearly and convincingly show" abuse of discretion. Id. at 29.

However, the prosecutor must provide a sufficiently specific statement of reasons, to permit the court to engage in meaningful review of the waiver motion:

[I]t behooves the prosecutor when formulating a statement of reasons to clearly set forth the facts used in assessing the factors directed by the Guidelines and to explain how evaluation of those facts led to the waiver conclusion.

 

The Legislature did not say that a prosecutor must seek waiver for all sixteen and older juveniles charged with an enumerated offense. See N.J.S.A. 2A:4A-26. Therefore, a reviewing court must have before it a statement that explains why the discretionary determination was made as to the individual juvenile before the court. A proper statement of reasons protects against the abuse of discretion that undermines the general interest in promoting uniformity in these determinations and avoids arbitrary decision-making.

 

[Id. at 28-29.]

 

On the specific issue of deterrence, the Court required the prosecutor to demonstrate an evaluation of the individual juvenile, to show that the prosecutor considered the issue of individual deterrence as well as general deterrence:

("[T]he concept of deterrence involves the notion of 'individual deterrence' that punishment will dissuade the offender from repeating his criminal acts. It also includes the principle of 'general deterrence' that punishment can 'discourage similar wrongdoing by others through a reminder that the law's warnings are real and that the grim consequence of [punishment] is likely to follow from [certain crimes].'" (alterations in original) (citations omitted)).

 

By requiring an individualized assessment about deterrence namely, how the individual need for deterrence is better advanced by waiver as opposed to having the juvenile remain in family court the evaluation need not become a back door into the former rehabilitation assessment that the Legislature rejected for this special category of juvenile offenders. . . . But that does not excuse the prosecutor from considering and explaining his or her conclusions about the respective merits of deterrence through adult versus juvenile proceedings on an individualized basis for each juvenile for whom waiver is sought. In that respect, it is inconceivable that the prosecutor, to some extent, would not also weave in the consideration of the juvenile's past history of behavior.

 

[Id. at 29-30.]

 

However, the Court emphasized that the abuse of discretion standard was not an invitation to trial judges to second-guess the prosecutor's decision.

An abuse of discretion review does not allow the court to substitute its judgment for that of the prosecutor. Rather, a review for abuse of discretion involves a limited but nonetheless substantive review to ensure that the prosecutor's individualized decision about the juvenile before the court, as set forth in the statement of reasons, is not arbitrary or abusive of the considerable discretion allowed to the prosecutor by statute.

 

[Id. at 8.]

 

III

Having thoroughly reviewed the record, we cannot agree with the Family Part judge's evaluation of the prosecutor's reasons for the waiver decision. First, based on the March 12 hearing transcript, it is clear that the State did not suddenly decide to file a waiver motion after the plea negotiations fell through. Prior to hearing testimony, the judge asked whether the State had complied with the thirty-day time limit to file the motion. See N.J.S.A. 2A:4A-26d. Defense counsel stated that he had waived the time limit several times while the negotiations were pending. Plainly, all parties were aware that the State planned to file a waiver motion if the case was not resolved through a plea bargain.

It is not unusual for a prosecutor to consent to a lenient disposition in exchange for a defendant's guilty plea, nor is it arbitrary to withhold consent to that lenient disposition when the defendant refuses to plead guilty. In rejecting a constitutional challenge to N.J.S.A. 2A:4A-26e,2 Judge King analogized that section to the traditional choice facing a defendant offered a plea bargain:

The situation facing a juvenile at a Phase II hearing is somewhat analogous to the situation facing defendants who are offered plea bargains, a constitutionally-permissible practice. The juvenile is merely faced with a choice and may voluntarily elect to waive the privilege [against self-incrimination] in exchange for the possibility of favorable treatment.

. . . .

 

The federal Supreme Court has consistently held that the offer of a lower sentence or more lenient treatment in exchange for a guilty plea does not impermissibly coerce a defendant to waive the Fifth Amendment privilege.

 

[State in the Interest of A.L., 271 N.J. Super. 192, 209-10 (App. Div. 1994) (citation omitted).]

 

The Guidelines allow a prosecutor to offer a juvenile adjudication in lieu of waiver, and thus clearly imply that a prosecutor's initial offer of a plea deal does not preclude the later filing of a waiver motion. Many factors may enter into a prosecutor's decision to offer a favorable plea deal to any defendant, adult or juvenile. Those factors include the strength or weakness of the case and the defendant's willingness to cooperate with law enforcement. We agree with the Family Part judge that, if a prosecutor's sole reason for filing a waiver motion is that a juvenile has refused to enter into a plea bargain, that would be illegally arbitrary because it would be inconsistent with the Guidelines. However, that is plainly not the situation here. The prosecutor provided a lengthy and thorough written explanation for the waiver decision, addressing all of the factors set forth in the Guidelines. The prosecutor properly considered A.R.'s prior conduct, including his previous drug arrest five days before the arrest that led to the waiver hearing. See V.A., supra, 212 N.J. at 30. The prosecutor further explained those reasons at the waiver hearing.

We share the judge's view that the State should not use the threat of an otherwise-unjustified waiver motion as a bargaining chip in plea negotiations with a juvenile defendant. However, in this case, the State adequately justified the waiver motion, and defendant did not "clearly and convincingly" establish that the decision was an abuse of discretion. Ibid. The fact that the State gave A.R. a chance to avoid waiver, as the Guidelines allow, did not vitiate the State's right to file the waiver motion after plea negotiations were unsuccessful. Consequently, we reverse the order on appeal and remand for entry of an order granting the waiver motion.

One final issue bears mentioning. In V.A., the Court declined to consider statistical evidence concerning possible discrimination in prosecutorial waiver decisions, because the issue was raised on appeal for the first time by an amicus curiae. Id. at 20 n. 4. In this case, A.R. has not raised the issue. Nonetheless, we note that one aspect of the prosecutor's statement of reasons (e.g., emphasizing the crime problems in Camden) could be problematic, if it reflects a policy that juveniles arrested for crimes in certain areas of the State will be treated less favorably than juveniles arrested for the same crimes in other locations.

However, in this case, the evidence was sufficient to convince us that the waiver decision would likely have been the same regardless of where the offenses were committed. A.R. was arrested for selling crack cocaine out of an apartment that contained a small arsenal of illegal handguns. This was his second arrest for drug dealing in a five-day period. We cannot find an abuse of discretion in the waiver motion.

Reversed and remanded.

1 In our April 6, 2013 order granting the motion for leave to appeal, we also gave the parties the option of relying on their motion briefs as their merits briefs. Both parties chose that option. In a companion order of the same date, we stayed further proceedings in the Family Part, pending our decision of this appeal. That stay is vacated to permit compliance with this opinion.

2 This section allows some juveniles to present proof that they can be rehabilitated if allowed to remain in the juvenile justice system. That proof may include the juvenile's testimony and admission of guilt.