STATE OF NEW JERSEY v. EDWARD SHACKLEFORD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3238-05T53238-05T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

EDWARD SHACKLEFORD,

Defendant-Respondent.

________________________________________________________________

 

Submitted November 8, 2006 - Decided December 12, 2006

Before Judges Lisa and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 05-06-1602.

Paula T. Dow, Essex County Prosecutor, attorney for appellant (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

The State appeals from an order admitting defendant, Edward Shackleford, into the Pretrial Intervention Program (PTI) over the prosecutor's objection. The State argues that its decision to reject defendant's PTI application was based upon a thorough consideration of all appropriate factors and did not constitute a gross and patent abuse of discretion, as a result of which the judge erred in overriding the State's decision. We agree with the State and reverse.

At about 1:00 a.m. on January 20, 2005, defendant and his girlfriend, Share Neal, were sitting in defendant's car in front of Neal's house in East Orange. Neal informed defendant she was pregnant and that the child might not be his. Defendant reached under the front seat and pulled out a handgun. He placed a bullet in the chamber, pointed the gun at Neal, and said, "Get the f--- out." Neal got out of the car. Defendant cursed her again. He then got out of the car and began chasing her. Neal was able to enter her house and lock the door. She immediately called the police. A temporary domestic violence restraining order was issued, as well as a search warrant. Within the next hour or two, the police responded to defendant's home to serve the restraining order and execute the search warrant. Although defendant denied having a gun, the police found hidden under his mattress a .380 High Point handgun with one magazine on the side. Further investigation revealed that the gun had been stolen in South Carolina. Defendant stated that he had obtained the gun on the street for his protection. A final restraining order was issued on February 2, 2005. At the time the trial court proceedings were concluded, that order remained in effect.

Defendant was indicted for fourth-degree Graves Act aggravated assault, N.J.S.A. 2C:12-1b(4) (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); second-degree Graves Act possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4 (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count four); and fourth-degree violation of a firearm's regulatory provisions, N.J.S.A. 2C:39-10 (count five).

Defendant applied for admission into PTI. In support of his application, he noted that he was twenty-four years old with no previous contact with the criminal justice system, he had availed himself of educational opportunities, served honorably as a United States Marine in the Iraq war and was recently honorably discharged. Defendant received several commendations during his military service. He received treatment through the Veterans Affairs healthcare system for substance abuse. He completed a residential program and was continuing on an outpatient basis. He was diagnosed at the Veterans hospital as suffering from post-traumatic stress disorder (PTSD) and was awaiting a bed at a VA hospital for treatment in the PTSD clinic, but would not be eligible for that treatment until resolution of his criminal charges. Defendant contended that his criminal episode with his girlfriend was an aberration in an otherwise law-abiding and commendable life, he was amenable to rehabilitation, and would be an ideal candidate for PTI.

Although the criminal case manager recommended approval of defendant's PTI application, the prosecutor did not. In its November 22, 2005 letter rejecting defendant's application, the prosecutor acknowledged the mitigating circumstances proffered by defendant that would militate in favor of his admission. However, the prosecutor also set forth many aggravating factors and, on balance, concluded that defendant should not be admitted into PTI. The prosecutor stated:

I have evaluated the guidelines relevant to PTI as enunciated in statutory and decisional law. Upon due consideration of all factors, I have determined that Edward Shackleford is not a suitable candidate for diversion. N.J.S.A. 2C:43-12e(1) and Guideline 3(i) of R. 3:28 indicate that it is proper for the Prosecutor to consider the nature of the offense charged. It is the opinion of this Office that the defendant pointed a hand gun at the body of the pregnant victim, placing her life and the life of her unborn child at-risk. Clearly this could have resulted in serious injury or death to Ms. Neal and or her unborn child. The stress and fear of this incident could have induced a miscarriage in the victim.

It is the opinion of this office that the defendant was arguing with Ms. Neal, became enraged and drew a gun on her. The defendant armed himself with a dangerous weapon which he illegally obtained on the street (stolen). He has prior military training with weapons even receiving an award for same; therefore, he should have exercised better judgment. Additionally, if the defendant was suffering from the effects of PTSD, experiencing recollections/ flashbacks of his military service and/or impulsive behavior the last thing he should have done was illegally obtain a handgun, and certainly should not have kept it in his car within easy reach. The totality of the circumstances indicates that the defendant's conduct is intolerable and needs to be deterred particularly in the domestic violence context. Therefore, the needs and interests of society would best be served by prosecuting this case and not by diverting your client into a diversionary program. Additionally, there is a presumption against PTI for crimes committed with threat of violence and second degree crimes, and the defendant has not overcome these presumptions. R. 3: 28 Guideline 3(i)(3).

Furthermore, I have determined that the defendant has failed to establish that the values of supervisory treatment would outweigh the public need for prosecution. N.J.S.A. 2C:43-12e(14). The aggravating factors, particularly N.J.S.A. 2C:43-12e(1), (2), (7), (9) (substantial danger), (10), (14) and (17), which overwhelmingly outweigh the mitigating factors, namely N.J.S.A. 2C:43-12e, (3) (age), (4), (8), (12), (13), (15) and (16), militate against the defendant's admission into the program.

The matter came on for argument on February 15, 2006. The judge issued an oral decision, in which he overrode the prosecutor's decision, reasoning as follows:

This is a unique situation, uh, because there are, um, mitigating factors that are, um, important in this case. There are also aggravating factors that are also very important, and the balancing in this case is difficult. The . . . Court has read all of the, uh, material that has been supplied by both sides. The Court recognized that . . . it's a high standard to overturn a decision made by the Prosecutor's office, uh, to deny a PT application. Uh, the Court also recognizes that it is appropriate for Prosecutors to base their rejection solely on the nature of an offense for which the guidelines express a presumption against admission, and this includes crimes committed with violence or threats of a violence. So, there is a presumption in this case that, um, the defendant is not entitled to PTI, based upon the nature of the offense.

In this case, Mr. Shackleford is 24 years old. He graduated from Newark Technical High School. Afterwards, he enrolled in the United States Marine Corp., from which he was honorably discharged after serving his country in Iraq.

. . . .

He has shown a history of employment, uh, and is currently employed there. Um, he has no criminal record. He is -- as a result of his service in Iraq, he, uh, suffers from low substance abuse problems and post-tramac - traumatic stress disorder, however, he has made every effort to, uh, receive treatment for both. Um, these qualities clearly make him a prime candidate for PTI. The problem, of course, is that, um, the offense which is charged in the domestic violence context raises a flag and creates the conflict that we are faced with in this case.

The Prosecutor's office has determined that the interests of society would be best served by prosecuting this case, and by not diverting Mr. Shackleford into PTI. The decision is correctly based on, uh, the fact that the charges are -- are levied against Mr. Shackleford, are of the -- there is one of the second degree, which contains a threat of not only violence, but domestic violence. The Prosecutor states that they, uh, attempted to show a balancing test, and that the aggravating factors outweighed the mitigating factors against the defendant's admission into the program.

The State stated that one aggravating factor was used that Mr. Shackleford is a substantial danger to others, under NJSA 2C:43-12E9. The defense argues that in fact, that is not -- there is no basis for such a finding, that he has never been involved in the criminal justice system prior to this incident. There is a basis for that finding, however, the Court agrees with the defendant -- the defense, that that is not a proper aggravating factor, looking at the totality of the circumstances and, while initially ce -- certainly the actions of Mr., uh, Shackleford, uh, cannot be condoned, when one looks at his record, which is admirable, um, to say the least, one cannot but help conclude that the defense is right, and that he does -- he is not a substantial danger to others. Um, he has, basically, his whole life tried to prove that fact. Uh, the fact that he, uh -- when he comes back from Iraq, is suffering from substance abuse problems and post-traumatic stress disorder, and is faced with the situation that he was faced with, he clearly acted, uh, improperly and in a criminal manner, but I think that, uh, this Court at least feels that Mr. Shackleford deserves a break, and when one looks at the weighing of the aggravating and mitigating factors, this Court feels that, clearly, the mitigating factors outweigh the aggravating factors.

Uh, the mitigating factors being . . . that he's a high school graduate, that he enrolled in the Marine Corp., that he was honor -- honorably discharged, that he received commendations, that he has recognized his problems, he has sought treatment for those problems, um, that he had no prior criminal record, that he was faced with a very difficult situation, which he admittedly reacted very poorly to, but -- but when looking at the interests of society, this Court feels that -- that such an incident, um, he's either going to get probation, uh, or he would be in PTI, and if he goes into PTI, as the defense rules, he's going to get the same type of supervisory, um, assistance that, basically, he would get in -- in probation, but he will not have a criminal record if he successfully completes PTI, and I think in light of all his service to this country, and what he has done to help himself, that he should be given that chance to, uh -- to go through the supervisory program and successfully complete it, uh, to continue, uh, with his treatment for post-traumatic stress disorder, his substance abuse, and -- and if he doesn't do those things, that will come out when he's in -- on PTI, uh, and that the -- that his PTI -- the Court feels that if he successfully completes the PTI program, the benefits to society would -- would -- that we would have a productive member of society, without a criminal record, who, uh -- who has served his country and who has shown that he wants to be a good citizen.

Issues concerning the propriety of the prosecutor's consideration of relevant PTI factors are akin to "questions of law"; their resolution requires a determination as to whether that factor was legally cognizable given the underlying policies of PTI. State v. Maddocks, 80 N.J. 98, 104-05 (1979). Consequently, on such matters an appellate court is free to substitute its independent judgment for that of the trial court or the prosecutor should it deem either to have been in error. Id. at 105.

The history of PTI was described by the New Jersey Supreme Court in State v. Nwobu, 139 N.J. 236, 245-49 (1995), where the Court noted that PTI is

an alternative procedure to the traditional process of prosecuting criminal defendants. It is a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter criminal behavior. PTI is intended to augment the criminal justice system when prosecution would be ineffective, counterproductive, or unnecessary.

[139 N.J. at 240-41.]

PTI was first established by Rule 3:28 in 1970 as authority for the vocational-service pretrial intervention program. State v. Leonardis, 71 N.J. 85 (1976) (Leonardis I). In 1979, the Legislature enacted a pre-trial intervention program as part of the Code of Criminal Justice. See N.J.S.A. 2C:43-12 to -22; State v. Leonardis, 73 N.J. 360 (1977) (Leonardis II). Thus, since 1979, PTI has been governed simultaneously by Rule 3:28 and N.J.S.A. 2C:43-12(e), which "generally mirror[]" each other. Nwobu, supra, 139 N.J. at 245.

Also since 1979, courts have remained sensitive to the fact that diversion is a quintessentially prosecutorial function. See State v. Dalglish, 86 N.J. 503, 513 (1981) ("Since the Legislature has established a PTI program with judicial review . . . the problem of judicial interference with legislative authority has been eliminated. Nevertheless, our concern about unwarranted interference with prosecutorial prerogative persists . . . ."). It is widely understood that the prosecutor has great discretion in selecting whom to prosecute and whom to divert to an alternative program, such as PTI. Leonardis II, supra, 73 N.J. at 381.

This discretion however is not unbridled. If the trial court finds a patent and gross abuse of discretion by the prosecution, the court may order enrollment in PTI over a prosecutor's objection. State v. Smith, 92 N.J. 143, 145-46 (1981). A "patent and gross abuse of discretion" is more than just an abuse of discretion as traditionally conceived; it is a prosecutorial decision that "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." State v. Wallace, 146 N.J. 576, 582-83 (1996) (citation omitted). As such, in order to rebut prosecutorial discretion, a defendant must establish clearly and convincingly that rejection from PTI is based on a gross and patent abuse of discretion. State v. Warriner, 322 N.J. Super. 401, 409 (App. Div. 1999).

Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon 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). Under the first two prongs of this abuse of discretion test,

a court should ordinarily not order a defendant enrolled in PTI merely because it has concluded that the prosecutorial decision was based upon a consideration of inappropriate factors or was not premised upon a consideration of all relevant factors. In such a case, the proper disposition will usually be to remand the matter so that the prosecutor may reassess defendant's eligibility in light of the court's rulings. If the alleged error is that of "clear error in judgment," obviously a remand will serve no useful function.

[Id. at 94.]

And, under the third prong, it must be shown that the prosecutorial error complained of will clearly subvert the goals underlying PTI in order for such an abuse of discretion to rise to the level of "patent and gross." Id. at 93.

Prosecutors weigh statutory and related court rule guidelines in determining whether to admit a defendant into PTI. Wallace, supra, 146 N.J. at 585-86. Under N.J.S.A. 2C:43-12(e), the prosecutor shall consider the following factors:

(1) The nature of the offense;

 
(2) The facts of the case;

 
(3) The motivation and age of the defendant;

 
(4) The desire of the complainant or victim to forego prosecution;

 
(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;

 
(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
 
(7) The needs and interests of the victim and society;

 
(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;

 
(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;
 
(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;
 
(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;
 
(12) The history of the use of physical violence toward others;

 
(13) Any involvement of the applicant with organized crime;

 
(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;

 
(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;

 
(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants; and

 
(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.

The prosecutor must also consider several guidelines which act to complement N.J.S.A. 2C:43-12(e). Pressler, Current N.J. Court Rules, R. 3: 28 Guideline 3 at 993 (2007). Particularly relevant to the analysis here are Guidelines 1, 2, 3 and 8.

Guideline 1 sets forth the purposes of PTI:

(1) to enable defendants to avoid ordinary prosecution by receiving early rehabilitative services expected to deter future criminal behavior; (2) to provide defendants who might be harmed by the imposition of criminal sanctions with an alternative to prosecution expected to deter criminal conduct; (3) to avoid burdensome prosecutions for "victimless" offenses; (4) to relieve overburdened criminal calendars so that resources can be expended on more serious criminal matters; and (5) to deter future criminal behavior of PTI participants.

[Nwobu, supra, 139 N.J. at 247.]

Guideline 2 provides that "[a]ny defendant accused of crime shall be eligible for admission into a PTI program." Pressler, supra, Guideline 2 at 992. Thus, the Court has stated that "PTI decisions are 'primarily individualistic in nature' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)).

Guideline 3 refers to and supplements N.J.S.A. 2C:43-12(e). Wallace, supra, 146 N.J. at 586. Relevant here in particular is Guideline 3(i), which states that there is a presumption against acceptance into a program when "the crime was . . . or (3) deliberately committed with violence or threat of violence against another person." Pressler, supra, Guideline 3(i) at 994. When the defendant is charged with a first or second degree offense there is also a presumption against acceptance, and such a defendant "should ordinarily not be considered for enrollment in a PTI program except on the joint application by the defendant and the prosecutor." Ibid. Where there is a presumption of ineligibility, a defendant must show "compelling reasons" to be admitted to PTI. Ibid.; Nwobu, supra, 139 N.J. at 252-53.

Guideline 8 requires the PTI decision maker to provide the defendant with a statement of reasons justifying the decision and demonstrating that all relevant facts have been considered. Pressler, supra, Guideline 8 at 999.

In this case, a presumption against PTI admission existed for two independent reasons. Defendant was charged with a second-degree crime, and his criminal conduct constituted a deliberate act of violence or threat of violence against another person. And, contrary to the trial judge's observation that in a case such as this defendant would end up with probation if not admitted into PTI, we note that defendant's charges include two Graves Act offenses, which carry mandatory prison terms of eighteen months in the case of N.J.S.A. 2C:12-1b(4), and a minimum of three years in the case of N.J.S.A. 2C:39-4. See N.J.S.A. 2C:43-6c.

The defense argument focuses primarily on two issues. First, defendant argues that the State relied heavily, perhaps exclusively, on the offense circumstances, giving little or no regard to defendant's individual characteristics. Second, the defense argues that his honorable military service and the resulting PTSD should be viewed as a mitigating, rather than aggravating factor. According to defendant, the underlying criminal episode is interrelated with his PTSD, and he is amenable to receiving treatment for that underlying condition, which was brought about by the honorable defense of his country.

We are satisfied that the State has considered all of the appropriate statutory and guideline factors. It has indeed given significant emphasis to the offense circumstances, but it has also considered defendant's individual characteristics. It has taken into consideration the needs of society, including as a policy matter, the need to deter the senseless criminal use of handguns and acts of domestic violence. It has considered mitigating factors personal to defendant, including his age, honorable military service, amenability to rehabilitation, and his educational and employment activities. Against those considerations, it has appropriately considered the extremely violent nature of the offense, in which defendant armed himself with a handgun and ammunition before the incident that precipitated his outburst occurred. Thus, defendant was traveling about in his car with a concealed stolen handgun and ammunition, and doing so in a condition, whether resulting from honorable military service or not, that rendered him emotionally unstable and subject to impulsive behavior. Thus, we cannot take issue with the State's characterization of defendant as an individual who presents "a substantial danger to others." See N.J.S.A. 2C:43-12e(9).

We are convinced from our careful review of the record that the prosecutor considered, weighed and balanced all required factors, including those personal to defendant as well as the offense circumstances. We nevertheless note in passing that courts have repeatedly found that, acting within the broad discretion afforded to them, prosecutors may reject a PTI application "solely on the nature of the offense for which the Guidelines express a presumption against admission." State v. Baynes, 148 N.J. 434, 451 (1997); see also Wallace, supra, 146 N.J. at 588; Nwobu, supra, 139 N.J. at 251-52; Bender, supra, 80 N.J. at 94-95 (1979); State v. Mottley, 369 N.J. Super. 314 (App. Div. 2004); Warriner, supra, 322 N.J. Super. at 409; State v. Seyler, 323 N.J. Super. 360, 369-70 (App. Div. 1999); State v. Imbriani, 291 N.J. Super. 171, 178-79 (App. Div. 1996); State v. Kraft, 265 N.J. Super. 106, 116 (App. Div. 1993); State v. Barrett, 157 N.J. Super. 96, 102 (App. Div. 1978); State v. Litton, 155 N.J. Super. 207, 212 (App. Div. 1977).

For example, in Wallace, the Court held that the denial of the defendant's PTI application did not amount to a clear error of judgment where the defendant entered his former girlfriend's house with a loaded gun and threatened to kill her. 146 N.J. at 579-80. In support of its denial, the prosecutor's office in Wallace relied primarily on Guideline 3(i), which recommends that defendants charged with either a first or second degree offense and/or charged with crimes involving violence or threat of violence be denied PTI. Id. at 588.

Defendants generally face a high burden to demonstrate that a prosecutor's rejection of their PTI application constitutes a gross and patent abuse of discretion. Judicial deference to prosecutors' PTI decisions is an "enhanced deference." Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111-12 (1993)). The burden is particularly high where there is a presumption against admission and an obligation on defendant's part to show compelling reasons justifying his admission. Prosecutors' decisions to reject PTI applications "will rarely be overturned." Baynes, supra, 148 N.J. at 443.

Defendant has fallen short of the required showing of compelling reasons to override the prosecutor's decision in this case. Reasonable minds could differ in analyzing and balancing the applicable factors in this case. However, judges may not substitute their judgment for that of the prosecutor and may only override a prosecutorial PTI rejection upon a clear and convincing showing of a gross and patent abuse of discretion. That very high standard was not met in this case, and the judge impermissibly substituted his judgment for that of the prosecutor.

Reversed and remanded for further proceedings.

 

(continued)

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A-3238-05T5

December 12, 2006