STATE OF NEW JERSEY v. LEONARD COLEMAN

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NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

LEONARD COLEMAN,

Defendant-Appellant.

_______________________________

March 14, 2014

Submitted December 2, 2013 Decided

Before Judges St. John and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-06-685.

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, on the brief).

Grace H.Park, ActingUnion CountyProsecutor, attorney for respondent (Stacey E. Zyriek, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This case arises out of the death of two-year-old X.G. on February 25, 2010. Defendant Leonard Coleman appeals from his judgment of conviction for abuse or neglect of a child. He contests the prosecutor's decision to reject his application for admission to the Pre-Trial Intervention (PTI) Program. We affirm.

I.

The following facts were admitted by defendant at his plea colloquy and his PTI interview. Defendant and his wife Diane Matthews were separated. Matthews took on the responsibility of raising X.G., the child of one of her friends, as well as her three children with defendant. On February 25, Matthews had to go out that evening, and so defendant went to the house to care for the children, including X.G. Defendant found X.G. had scratches on his face, and was bleeding from his head. Matthews claimed X.G. had fallen down the stairs. During the hour or more that Matthews left X.G. in defendant's care, X.G. continued to bleed from his head. Although defendant knew X.G. was bleeding, and had been bleeding for a number of hours, defendant did nothing to get X.G. medical attention. Matthews returned and defendant slept at the house. During the night, Matthews found X.G. convulsing in the bathroom and called an ambulance. X.G. died that night.

The prosecution also noted that defendant told the police the injuries on X.G. were very visible, and the large cut on X.G.'s head continued to bleed despite defendant's attempts to stop it. Despite the evidence of ongoing abuse, and the fact that X.G. would not eat and was moaning, defendant said he did not seek medical attention because "other people might get involved and there would be bills."

The grand jury indicted defendant and Matthews. It charged Matthews with first-degree murder and two counts of second-degree endangering the welfare of a child. She later pled guilty to manslaughter, and was sentenced to several years in prison.

The grand jury charged defendant with second-degree endangering the welfare of a child. N.J.S.A. 2C:24-4(a)(2). Specifically, it found that he endangered X.G. by willfully failing to provide proper and sufficient medical attention despite having a duty of care, making X.G. an abused or neglected child under N.J.S.A. 9:6-1 and 9:6-8.21.

Pursuant to a plea agreement, defendant eventually pleaded guilty to abuse or neglect of a child as defined in N.J.S.A. 9:6-1, which is a crime of the fourth degree, N.J.S.A. 9:6-3. As part of the plea agreement, the prosecutor agreed to forego raising procedural objections to defendant's application to the PTI program.1

The Union County Prosecutor's Office rejected defendant's application for the PTI Program. Defendant appealed the prosecutor's decision to the Superior Court. See R. 3:28(f)-(h). The judge designated to hear PTI appeals (the PTI judge) heard argument and denied the appeal on January 23, 2012.

At sentencing, the prosecutor recommended non-custodial probation pursuant to the plea agreement. The sentencing judge imposed a sentence of probation for one year and fines in a judgment of conviction filed February 28, 2012.

Defendant appeals, raising the following argument:

THE JUDGE BELOW ERRED IN DENYING DEFENDANT'S MOTION TO BE ADMITTED TO THE PRE-TRIAL INTERVENTION PROGRAM AS THE PROSECUTOR'S DENIAL WAS A PATENT AND GROSS ABUSE OF DISCRETION.

In reviewing this argument, we must hew to our "severely limited" scope of review. State v. Negran, 178 N.J. 73, 82 (2003). Deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function," State v. Wallace, 146 N.J. 576, 582 (1996), "'[f]irst, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options,'" State v. Nwobu, 139 N.J. 236, 246 (1995) (citation omitted). Accordingly, courts give prosecutors "'extreme deference,'" ibid. (citation omitted), and "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.

"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. Watkins, 193 N.J. 507, 520 (2008) (citations omitted). "A 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.'" Ibid. (citations omitted). Given the defendant's "heavy burden," ibid., "'a prosecutor's decision to reject a PTI applicant "will rarely be overturned."'" State v. Brooks, 175 N.J. 215, 225 (2002) (citations omitted).

The PTI program is governed by N.J.S.A. 2C:43-12 to -22 (the Act), Rule 3:28, and the Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules (2014) (the Guidelines). The PTI Program provides eligible defendants the opportunity to avoid ordinary prosecution and sanctions. N.J.S.A. 2C:43-12(a)(1)-(2). If accepted, their charges may be placed in an inactive status while they receive supervisory treatment for a period generally "not to exceed three years." N.J.S.A. 2C:43-13(a)-(c); see R. 3:28(b)-(d). On their successful completion of such treatment, their charges are dismissed with prejudice. N.J.S.A. 2C:43-13(d); see R. 3:28(c).

The eligibility criteria for the PTI Program are primarily set forth in N.J.S.A. 2C:43-12(e) and Guideline 3. One of the key considerations is "the nature of the offense." See N.J.S.A. 2C:43-12(b), (e)(1). Guideline 3(i) provides that in assessing the nature of the offense, "[a] defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor." Pressler & Verniero, supra, Guideline 3(i) at 1145. This provision represents a "decision to prevent serious offenders from avoiding prosecution in ordinary circumstances," and creates "a presumption against diversion." State v. Caliguiri, 158 N.J. 28, 42 (1999); Pressler & Verniero, supra, Official Comment to Guideline 3 at 1144-45.

In rejecting defendant's application, the prosecutor relied primarily on the nature of the offense, in particular presumption in Guideline 3(i) against the admission of applicants charged with second-degree offenses. The prosecutor stated:

The defendant was indicted for second degree Endangering the Welfare of a Child. Our Office has not consented to his admission into PTI. Hence, he is presumptively barred from the program.

The prosecutor acknowledged that defendant had pled guilty to fourth-degree abuse or neglect of a child, and that a fourth-degree offense in itself does not give rise to a presumption against PTI. The prosecutor stated, however:

Our review of the defendant's application is based on the pre-disposition merits of the case, not the post-guilty plea/pre-sentence status of the charges. Therefore, defendant is presumptively ineligible due to the indictment of a second-degree charge and the facts that support that indictment.

Defendant contends that it was error to rely on the fact that he was originally charged with a second-degree offense. However, prosecutors make PTI decisions based on the original charges in almost all cases. That flows from the requirements that the defendant must make his PTI application "no later than twenty-eight days after indictment," R. 3:28(h) and "prior to trial," N.J.S.A. 2C:43-12(e). See State v. Frangione, 369 N.J. Super. 258, 259-60 (App. Div. 2004) (finding untimely the PTI application of a defendant, originally charged with a second-degree crime, made after a negotiated plea to a third-degree crime). It also serves the Act's purposes of providing "an alternative to prosecution" or "the least burdensome form of prosecution possible" to offer "early rehabilitative services," to reduce "criminal calendars," and to save "criminal justice resources." N.J.S.A. 2C:43-12(a)(1)-(4); Pressler & Verniero, supra, Official Comment to Guideline 6 at 1149. The original charge is based on the grand jury's finding of a prima facie case. State v. Hogan, 144 N.J. 216, 227 (1996). Thus, it is appropriate for a prosecutor to rely on that charge. Similarly, a defendant charged with a second-degree offense cannot obtain PTI by arguing that he is guilty only of a third-degree crime, because "the PTI process is not designed to assess the weight of the State's case." Nwobu, supra, 139 N.J. at 252.

A prosecutor may reject the PTI application of a defendant who is charged with a second-degree offense, even if the defendant thereafter pleads guilty to a lesser offense. In Wallace, the defendant was charged with a second-degree offense, the prosecutor denied his PTI application, and then the defendant pled guilty to a third-degree offense. Wallace, supra, 146 N.J. at 580-81. The defendant argued that the "reviewing court should accord significant weight" to the negotiated plea reducing "the second-degree offense to a third-degree offense" and resulting in a probationary sentence. Id. at 588. The Supreme Court rejected the defendant's argument, not only because "a subsequently negotiated non-custodial sentence does not retrospectively impugn the soundness of a previous prosecutorial decision," but also because

[i]t would . . . seriously inhibit the discretion of the prosecutor with respect to the PTI decision and . . . would serve to discourage efforts by the State to enter into a negotiated plea agreement that seeks to accommodate a defendant's condition, need for treatment, amenability to supervision, and likelihood for rehabilitation.

[Id. at 588-89.]

That concern applies equally in the unusual case where the plea precedes the PTI decision, as here. To hold that the prosecutor in deciding whether to grant PTI was constrained to consider only the reduced, negotiated offense would discourage the prosecutor from entering into such plea agreements, and would inhibit the prosecutor from denying PTI to defendants who would not have received it in the absence of such an agreement.

Moreover, the negotiated reduction of the degree of the offense does not change "[t]he facts of the case," which the prosecutor must also consider. N.J.S.A. 2C:43-12(e)(2). The PTI judge ruled that the grave consequences of defendant's inaction, the resulting death of the child, and the strong societal interest in deterring those who commit crimes of this nature were all legitimate grounds for rejecting defendant's PTI application. We agree. See N.J.S.A. 2C:43-12(e)(7), (11), (14), (17). Those facts showed that defendant's offense was of a "serious nature." Cf. State v. Baynes, 148 N.J. 434, 445 (1997). "A prosecutor has the prerogative to view seriously" neglect that culminates in the death of a child. See Wallace, supra, 146 N.J. at 589.

It is well settled that "a prosecutor may, in appropriate circumstances, reject an applicant solely because of the nature of the offense." Caliguiri, supra, 158 N.J. at 36 (citing State v. Leonardis, 73 N.J. 360, 382 (1977)). One appropriate circumstance is "when the Guidelines express a presumption against PTI," including that the defendant was charged with a second-degree offense. Ibid. Where a defendant "fails to rebut the presumption against diversion," the prosecutor's "[r]ejection based solely on the nature of the offense is appropriate." Id. at 43.

As the prosecutor recognized, defendant can rebut Guideline 3(i)'s presumption by showing "compelling reasons justifying [his] admission and establishing that a decision against enrollment would be arbitrary and unreasonable." Pressler & Verniero, supra, Guideline 3(i) at 1145. "[A] defendant must demonstrate something extraordinary or unusual," not merely "that the accused is a first-time offender and has admitted or accepted responsibility for the crime." Nwobu, supra, 139 N.J. at 252. Here, the prosecutor acknowledged that defendant was thirty-three years old and had no prior indictable convictions. Nonetheless, the prosecutor found "nothing extraordinary, unusual or persuasive enough to overcome the serious nature of his offenses [or] the presumption of his ineligibility for admission to PTI," and also found "a strong societal interest in deterring those who commit crimes of this nature." After hearing defendant's argument that, since the crime, he had taken over the care of the three children from their imprisoned mother and had become a minister, the PTI judge found no patent and gross abuse of discretion. We agree.2

Thus, we conclude that the prosecutor appropriately relied on the nature of the offense, and specifically that defendant was charged with a second-degree crime, which was "the single most important factor involved" in the prosecutor's PTI decision. Nwobu, supra, 139 N.J. at 252. Indeed, the prosecutor's decision "was fundamentally founded" on that factor. State v. Humphreys, 89 N.J. 4, 15 (1982). Accordingly, we uphold the prosecutor's determination based on that factor. Ibid.; see Brooks, supra, 175 N.J. at 231-32.3 We offer only brief comment regarding the secondary factors cited by the prosecutor.

The prosecutor noted that the Legislature enacted the PTI in part to "[p]rovide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with 'victimless' offenses[.]" N.J.S.A. 2C:43-12(a)(3). The prosecutor stated that because this was not a victimless crime, it was "inappropriate for PTI." The Legislature, however, did not make only "victimless" crimes eligible for PTI. E.g., Bender, supra, 80 N.J. at 96; see N.J.S.A. 2C:43-12(a)(1)-(5). The Legislature listed that goal as only one of five alternative goals of supervisory treatment. See Pressler & Verniero, supra, Guideline 3(i) at 1144 ("any defendant charged with crime is eligible for enrollment in a PTI program, but the nature of the offense is a factor to be considered in reviewing the application."); see also Leonardis, supra, 73 N.J. at 382. The existence of a victim, and the victim's desires, needs, and interests, are relevant factors to be considered. See N.J.S.A. 2C:43-12(e)(1), (2), (4), (7), (10).

The prosecutor also stated that to allow defendant "to accept a plea to a fourth degree [offense] and then give him the opportunity to have even that matter dismissed would basically allow him a double benefit after negotiation." Here, defendant's ability to plead down to a fourth-degree offense and then apply for the PTI program was a direct result of the parties' plea agreement. However, under the plea agreement, the prosecutor could and did properly deny defendant's PTI application.

Finally, the prosecutor added that there was "a strong likelihood that the defendant cannot be rehabilitated within the three-year period allowed for participation in the Program." Because we find sufficient the prosecutor's primary reason for denying PTI, we need not consider this additional factor.

Affirmed.

1 Defendant failed to apply within twenty-eight days of the indictment as required by Rule 3:28(h).

2 Defendant asks that we remand the case, but he also has not shown "the prosecutor's decision was arbitrary, irrational, or otherwise an abuse of discretion." See Wallace, supra, 146 N.J. at 582-83.

3 To show a patent and gross abuse of discretion, it is insufficient to "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 (1979). "In order for such an abuse of discretion to rise to the level of 'patent and gross,' it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention." Ibid.; see also State in re V.A., 212 N.J. 1, 22 (2012); Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571-72 (2002). That is not the case here.