STATE OF NEW JERSEY v. LUIS M. OLIVA
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1106-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS M. OLIVA,
Defendant-Appellant.
______________________________
Submitted February 14, 2018 – Decided April 12, 2018
Before Judges Koblitz and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Indictment No.
14-06-0537.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Erin Smith Wisloff,
Supervising Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant Luis M. Oliva appeals from the September 15, 2016
judgment of conviction entered following his guilty plea to fourth
degree operating a motor vehicle during a period of license
suspension, N.J.S.A. 2C: 40-26(b), and to driving with a suspended
license,
N.J.S.A. 39:3-40. His application for pretrial
intervention (PTI) was denied. Defendant's guilty plea preserved
his ability to appeal the December 5, 2014 order that denied his
acceptance into PTI. See R. 3:9-3(f). We affirm that denial.
On March 6, 2014, defendant was driving his vehicle in Lincoln
Park when a police officer, who had performed a routine vehicle
registration check, learned that defendant's driver's license was
suspended, and stopped him. Defendant was on his way home from
his part time job. He was not under the influence of alcohol.
Defendant admitted that he knew his license was suspended based
on his 2013 second conviction for driving while under the influence
(DWI),
N.J.S.A. 39:4-50.
Defendant was indicted for fourth-degree driving while
suspended,
N.J.S.A. 2C:40-26(b) and charged with motor vehicle
summonses for driving with a suspended license,
N.J.S.A. 39:3-40,
and for failure to surrender a suspended license,
N.J.S.A. 39:5-
35.
N.J.S.A. 2C:40-26(b) provides that "[i]t shall be a crime of
the fourth degree to operate a motor vehicle during the period of
license suspension . . . if the actor's license was suspended
2 A-1106-16T1
. . . for a second or subsequent violation of R.S. 39:4-50." "A
person convicted of an offense under this subsection shall be
sentenced by the court to a term of imprisonment." Ibid. "[T]he
sentence imposed shall include a fixed minimum sentence of not
less than 180 days during which the defendant shall not be eligible
for parole."
N.J.S.A. 2C:40-26(c).
The Morris County Prosecutor's Office rejected defendant's
application for PTI on August 7, 2014, advising that,
[a]fter a careful weighing of the interests
of society and considering the circumstances
of the offense, and taking into account the
amenability of this defendant for the PTI
program, it is clear the state must exercise
its discretion to handle this crime in the
normal course of prosecution.
The letter provided that defendant's driving record, which
included "two (2) prior DWI convictions,1 eight (8) previous
suspensions of driving privileges and two (2) persistent
offenders," that "indicate[d] a pattern of anti-social behavior
and lack of amenability to rehabilitation." The prosecutor
contended that the Legislature's mandatory sentence and parole
ineligibility under
N.J.S.A. 2C:40-26 was "clearly intended to
1
Defendant's first DWI was December 4, 2004, and the second, July
17, 2013.
3 A-1106-16T1
deter" driving under the influence, which deterrence would be
"undermined" if defendant were not prosecuted.
Defendant filed a motion to compel admission to PTI. The
prosecutor's brief in opposition addressed the PTI Guidelines2 and
each of the criteria set forth in
N.J.S.A. 2C:43-12, including the
nature of the offense and need to deter, defendant's unwillingness
to abide by the law, age, criminal history, motivation to enter
PTI, and that the crime was not related to "any condition or
situation that a period of supervisory treatment would . . .
change." The prosecutor noted the mandatory minimum period of
incarceration under the statute.
On December 5, 2014, the court denied defendant's motion,
finding that the prosecutor's review of defendant's application
was objective and without consideration of anything that was
inappropriate. The State had considered the applicable factors
and guidelines. Thus, the court found no "patent or gross abuse
of discretion" by the prosecutor in its determination that
traditional prosecution was necessary because defendant "would not
be responsive to [PTI]."
On July 18, 2016, defendant pled guilty to fourth-degree
operating a motor vehicle during a period of license suspension,
2 See Rule 3:28, Guidelines for Operation of Pretrial Intervention.
4 A-1106-16T
1 N.J.S.A. 2C:40-26(b) and to driving with a suspended license,
N.J.S.A. 39:3-40.3 He was sentenced on the fourth-degree offense
to 180 days in the Morris County Correctional Facility and fined.
His guilty plea to driving with a suspended license was merged,
and the remaining motor vehicle charge was dismissed.
On appeal, defendant raises the following issues:
POINT I
THE PROSECUTOR'S REJECTION OF MR. OLIVA'S PTI
APPLICATION CONSTITUTES AN ABUSE OF
DISCRETION, THUS WARRANTING A REMAND FOR
RECONSIDERATION OF THE APPLICATION.
A. The Prosecutor's Justification for
Rejecting Mr. Olivo from PTI was Premised on
the Erroneous and Impermissible Notion that a
Per Se Bar Against PTI Admission Exists for
All Individuals Charged with Violating
N.J.S.A. 2C:40-26.
B. Although the State Ostensibly Analyzed the
PTI Factors for Purposes of the Record, the
Prosecutor's Improper Application of a Per Se
Bar Clouded His Ability to Objectively Assess
the PTI Factors. Consequently, the
Prosecutor's Other Proffered Reasons for
Rejecting Mr. Oliva from PTI Overemphasized
the PTI Factors Present in Every N.J.S.A.
2C:40-26 Case, and Failed to Properly Consider
Mr. Oliva's Individual Application.
"PTI is a 'diversionary program through which certain
offenders are able to avoid criminal prosecution by receiving
3
Defendant's plea followed the denial of his motion to suppress
the statement he made to the police when he was stopped.
5 A-1106-16T1
early rehabilitative services expected to deter future criminal
behavior.'" State v. Roseman,
221 N.J. 611, 621 (2015) (quoting
State v. Nwobu,
139 N.J. 236, 240 (1995)). The goal of PTI is to
allow, in appropriate situations, defendants to avoid the
potential stigma of a guilty conviction and the State to avoid
"the full criminal justice mechanism of a trial." State v. Bell,
217 N.J. 336, 348 (2014). "[E]ligibility 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." Roseman,
221 N.J. at 622.
Deciding whether to permit a defendant to divert to PTI "is
a quintessentially prosecutorial function." State v. Wallace,
146 N.J. 576, 582 (1996) (citing State v. Dalglish,
86 N.J. 503, 513,
(1981)). It involves the consideration of a non-exhaustive list
of seventeen statutory factors, see
N.J.S.A. 2C:43-12(e), in order
to "make an individualized assessment of the defendant considering
his or her 'amenability to correction' and potential
'responsiveness to rehabilitation.'" Roseman,
221 N.J. at 621-22
(citing State v. Watkins,
193 N.J. 507, 520 (2008));
N.J.S.A.
2C:43-12(b). Prosecutors are given "broad discretion" in
determining whether to divert a defendant into PTI. State v.
K.S.,
220 N.J. 190, 199 (2015) (citing Wallace,
146 N.J. at 582)).
6 A-1106-16T1
"The fourth degree offense that defendant is charged with
committing . . . does not carry a presumption against admission
into PTI." State v. Rizzitello,
447 N.J. Super. 301, 312 (App.
Div. 2016).
The scope of our review of a PTI rejection is "severely
limited." State v. Negran,
178 N.J. 73, 82 (2003) (citing Nwobu,
139 N.J. at 249)). "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," Watkins,
193 N.J. at 520 (citing Negran,
178 N.J. at
82), meaning that the decision "has gone so wide of the mark sought
to be accomplished by PTI that fundamental fairness and justice
require judicial intervention." Ibid. (quoting Wallace,
146 N.J.
at 582-83). An abuse of discretion is manifested where it can be
proven "that the [PTI] denial '(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. Lee,
437 N.J.
Super. 555, 563 (App. Div. 2014) (quoting State v. Bender,
80 N.J.
84, 93 (1979)).
Applying these principles, there is no basis to disturb the
trial court's decision. Defendant's contention is that the
7 A-1106-16T1
prosecutor applied a per se bar to his application for PTI because
his conviction under
N.J.S.A. 2C:40-26(b) required a sentence to
a term of imprisonment "of not less than 180 days during which the
defendant shall not be eligible for parole."
N.J.S.A. 2C:40-
26(c). Defendant parses through the brief that the prosecutor
submitted to the trial court, citing to portions that reference
the statute's incarceration requirement, in support of his
position.
The argument raised now about a per se bar, was not raised
before the trial court. Instead, defendant's counsel contended
that defendant's driving record was not reflective of who he was
presently, asserting he "is a man who grew up, changed and became
an individual who is a productive member of our society."
Defendant's current argument has mischaracterized the
prosecutor's position. Neither the August 7, 2014 letter nor the
brief in opposition to defendant's motion referred to a per se
rule. The prosecutor analyzed the criteria under the statute and
guidelines, concluding that based on all of those factors, it
chose to "exercise its discretion to handle this crime in the
normal course of prosecution" because defendant's record did not
show an amenability to rehabilitation. The assistant prosecutor
expressly represented to the trial court during argument of the
8 A-1106-16T1
motion that there was no per se rule in its office, stating, "[s]o
it's not a bright line rule in our office. We look at each and
every case on a case by case basis."
We agree there is no indication from this record that the
prosecutor applied a per se rule in rejecting defendant's PTI
application. Defendant's driving record supported the finding
that he was a poor candidate for PTI's goal of short-term
rehabilitation. This showed that over a ten year period, he had
two DWI convictions, eight previous suspensions of driving
privileges, and was considered a persistent offender. The
infraction in 2014 did not arise from an addiction; he was not
arrested for DWI. Defendant did not explain how his current
circumstances justified operating a vehicle without a license in
defiance of his license suspension. As such, the record did not
show defendant's amenability to rehabilitation. We agree
therefore that there was no patent and gross abuse of discretion
by the prosecutor in denying defendant's admission into PTI.
Affirmed.
9 A-1106-16T1
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