STATE OF NEW JERSEY v. JAMES SHACKELFORD

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

0 DOCKET NO. A-5139-13T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JAMES SHACKELFORD,

Defendant-Respondent.

___________________________________

April 13, 2015

Submitted January 13, 2015 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-04-00497.

John L. Molinelli, Bergen County Prosecutor, attorney for appellant (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Following the return of an indictment charging defendant James Shackelford, an Alabama resident, with second-degree possession of a Sportman Model FM H 1 Power 9 MM handgun without a permit, defendant applied for admission into the Bergen County Pretrial Intervention (PTI) Program. The PTI Director rejected defendant's application. Defendant appealed to the Law Division, where the judge enrolled defendant in the PTI program over the Prosecutor's objection. The Prosecutor appeals from the implementing order. Because the PTI Director considered improper factors and the judge relied on facts that do not appear to have support in the record, we reverse and remand so that the PTI proceedings can begin anew.

The facts are undisputed. On the night defendant was arrested, he was driving a white pickup truck on the Palisades Interstate Parkway when a patrol officer pulled him over after noticing that the truck's rear license plate light was out. There was a passenger in the pickup truck. As the patrol officer approached the passenger's side, he observed "numerous bullets on the dashboard." After obtaining a license and registration from defendant and identification from the passenger, the officer asked if there were any guns in the vehicle. Defendant and his passenger denied possessing any guns. After another officer arrived at the scene, the officers ordered the occupants out of the pickup truck, searched them, and found no weapons. In response to the first officer's request, defendant signed a form consenting to a search of the pickup truck. During the search, the officer found the handgun wrapped in a towel, in "the rear tool box," loaded with sixteen bullets, one in the chamber. Defendant admitted the gun belonged to him and the police arrested him.

Following the indictment, defendant applied for admission into the PTI program. In support of his application, he submitted letters from family, friends, ministers, lawmakers and business colleagues. The letters establish that defendant, a father of six, is devoted to his wife and children, his church and his community. He has worked countless hours to support his family yet still finds significant time to serve his community and support others in need. Notwithstanding the multiple testimonials to defendant's good character, the Bergen County PTI Director rejected defendant's PTI application.

In the letter rejecting the application, the PTI Director cited several of the PTI guidelines.1 Noting that under Guideline 3(i) there is a "rebuttable presumption against admission" for second-degree offenses, and further noting that the Prosecutor had not joined in defendant's PTI application, the PTI Director decided that "[t]he additional material submitted by . . . defendant fails to rise to the level of rebutting the presumption against PTI enrollment."

The PTI Director also cited Guideline 3(e) and defendant's arrest in Alabama fourteen years earlier for sexual assault, a charge that was dismissed; and Guideline 3(b) and the fact that defendant resided in another state, which "would negate the minimal supervision and the early rehabilitation provided by the PTI program." Specifically, the PTI Director noted that it would be impossible for a New Jersey probation officer to conduct a home investigation of defendant's home in Alabama. Inexplicably, the PTI Director followed that comment by stating, "[t]his would be especially detrimental in a case where the defendant is charged with an offense involving the distribution of controlled dangerous substances." Defendant was not charged with any drug offense.

The Law Division judge enrolled defendant in the PTI program over the Prosecutor's objection. The judge found that the PTI Director "failed to properly evaluate all the relevant factors that pertain to this specific defendant and assign the appropriate weight to the factors." Noting that the "case stemmed from a motor vehicle stop for an unlit license plate while defendant was merely passing through New Jersey[,]" and that "the loaded handgun was found wrapped in a towel inside a closed [toolbox] within the bed of his truck out of reach of the occupants[,]" the judge concluded defendant did not intend to use the gun unlawfully. The judge also found the PTI Director "overly emphasized the ineligibility of the defendant . . . due to his [second-degree] charge." And the judge determined that the letters and other material provided by defendant "demonstrate compelling reasons to overcome such a presumption" against admission. Significantly, the judge found the "State fail[ed] to address specific reasons as to why this particular defendant is not amenable to the PTI program and based [its] decision on a per se rule to exclude defendants who are charged with Graves Act offenses."

The court enrolled defendant in the PTI program for three years, ordered that he forfeit the handgun, and imposed appropriate fines and assessments. The court also required defendant to report to a New Jersey parole officer but permitted him to do so by telephone and letter, rather than in person.

Three months after the judge entered the implementing order, and after the State had filed its appellate brief, the Acting Attorney General issued a memorandum that the parties felt was relevant to the appeal, as they both filed supplemental briefs discussing it. The memorandum was entitled: "Clarification of 'Graves Act' 2008 Directive with Respect to Offenses Committed by Out-of-State Visitors From States Where Their Gun-Possession Conduct Would Have Been Lawful" (2014 Memorandum). The trial judge, however, did not have the opportunity to consider either the 2014 Memorandum or the parties' positions concerning its application to defendant.

We begin our analysis by noting that the statutory provisions implementing the PTI program are N.J.S.A. 2C:43-12 through 43-22. The procedural aspects of PTI programs are contained in Rule 3:28, after which appear the PTI guidelines. The statute, N.J.S.A. 2C:43-12, states explicitly that "Prosecutors and program directors shall consider" the statutory criteria. "Absent evidence to the contrary, a reviewing court must assume that all relevant factors were considered by the prosecutor's office." State v. Baynes, 148 N.J. 434, 444 (1997) (citing State v. Nwobu, 139 N.J. 236, 249 (1995)).

The Prosecutor's decision to admit or deny entry into the PTI program is afforded great deference

In fact, the level of deference which is required is so high that it has been categorized as enhanced deference or extra deference. Beyond this, it has been expressly noted that the scope of any review in this area is to be severely limited . . . . Thus, judicial review, in actuality, exists to check only the most egregious examples of injustice and unfairness.

[Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div. 1993)) (internal quotation marks omitted).]

A reviewing court may overturn the denial of a PTI application only upon a showing, by clear and convincing evidence, that the Prosecutor patently and grossly abused its discretion. Ibid. (citing Kraft, supra, 265 N.J. Super. at 111-12). As the Supreme Court has explained

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. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 28 L. Ed. 2d 136, 153 (1971). 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.

[State v. Bender, 80 N.J. 84, 93 (1979).]

"A prosecutor will be found to have made a 'clear error in judgment,' when the decision was premised on appropriate factors and rationally explained but is contrary to the predominant views of others responsible for the administration of justice." Baynes, supra, 148 N.J. at 448 (citing Nwobu, supra, 139 N.J. at 253).

In the case before us, the PTI Director's decision to reject defendant's PTI application was based on consideration of inappropriate factors. The PTI Director considered an arrest on charges later dismissed. There is no evidence in the record that defendant made any admission of the crime for which he had been arrested. Although a Prosecutor's consideration of such an arrest may have once been appropriate, that is no longer the case. Adult criminal charges that have been dismissed, which are unsupported by any "admissions of conduct to support the truth of the allegations in [the] . . . charges[,]" are inappropriate factors to be considered in deciding whether to admit a defendant into PTI. State v. K.S., 220 N.J. 190, 193 (2015).

Additionally, as we have previously noted, the PTI Director's rejection of defendant's application included an ambiguous reference to drug offenses, crimes not involved in this case. We assume the reference to drug offenses was an error. If so, the error can be corrected or clarified on remand.

The PTI Director's decision also may have been contrary to the predominant views of others, as evidenced by the Acting Attorney General's 2014 Memorandum. Significantly, the 2014 Memorandum contains the following paragraph

Furthermore, the 2008 Directive expressly provides that a prosecutor may consent to PTI in "rare cases involving extraordinary and compelling circumstances that fall outside the heartland of the legislative policy to deter unauthorized gun possession." Sec. 5a. Notably, the 2008 Directive provides an example of such an extraordinary case: "the defendant has no prior involvement with the criminal justice system, he or she lawfully acquired and possessed the firearm in a different state and the defendant's presence in New Jersey was incident to lawful travel." Ibid. This specific example provided parenthetically in the 2008 Directive contemplated a situation where an out-of-state resident is traveling through New Jersey en route to another State via our interstate highway system. The 2008 Directive did not address other situations where an out-of-state visitor would be more likely to interact with non-motorists in this State while armed with an unlawfully-possessed firearm.

In its supplemental brief, the Prosecutor argues "that even if the [Acting Attorney General's 2014 Memorandum] were applied, it would not have resulted in the Bergen County Prosecutor's Office agreeing to defendant's PTI application." In explaining that statement, the Prosecutor improperly relies upon defendant's previous arrest that culminated in the charges being dismissed.2

When a Prosecutor considers inappropriate factors, or fails to consider relevant factors, "[a] remand to the prosecutor affords an opportunity to apply the standards set forth by the court 'without supplanting the prosecutor's primacy in determining whether [PTI] is appropriate in individual cases.'" K.S., supra, 220 N.J. at 200 (quoting State v. Dalglish, 86 N.J. 503, 514 (1981)). Remand is particularly appropriate here, because the Supreme Court decided K.S. after the PTI Director had denied defendant's application, after the trial court had enrolled defendant in the PTI program over the Prosecutor's objection, after the State had filed its appeal, and after the Acting Attorney General had issued his 2014 Memorandum.

A remand would be unnecessary were we to conclude the trial judge correctly determined that the prosecutorial error complained of is patent and gross, that is, it will clearly subvert the goals underlying PTI. But a significant factor in the trial judge's decision appears to be that the Prosecutor had a per se policy against admitting into PTI defendants charged with Graves Act offenses. We agree that such a policy would clearly subvert the goals underlying PTI, because the policy would preclude a fair consideration of the statutory criteria for admission into a PTI program. The trial judge did not, however, provide a specific reference to the portion of the record that established such a policy. We have been unable to discern from the record the basis for the court's conclusion.

For the foregoing reasons, we reverse the trial judge's order and remand this matter to the Bergen County Prosecutor to further consider all relevant factors, including the 2014 Memorandum, and to determine whether to admit defendant into the PTI program. "In exercising discretion, the prosecutor may not consider defendant's prior dismissed offenses unless there are admissions or fact-findings that are relevant to one or more of the factors set forth in N.J.S.A. 2C:43-12(e)." K.S., supra, 220 N.J. at 203.

Reversed and remanded. We do not retain jurisdiction.

1 The "Guidelines for Operation of Pretrial Intervention in New Jersey" are contained in Pressler & Verniero, Current N.J. Court Rules, 1166-67 (2015) immediately following Rule 3:28, the rule that provides the procedure for PTI applications.

2 As previously noted, when the Bergen County PTI Director rejected defendant's application, the Supreme Court had not decided K.S. The Supreme Court decided K.S. on January 8, 2015 well after the appeal had been filed in this case and after the Acting Attorney General issued the 2014 Memorandum.