STATE OF NEW JERSEY v. TAWANDA N. ANDREWS

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0927-19T1

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

TAWANDA N. ANDREWS,

     Defendant-Respondent.
__________________________

                    Submitted March 17, 2020 – Decided April 22, 2020

                    Before Judges Fisher and Rose.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 16-06-
                    1030.

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for appellant (Carey J. Huff,
                    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
      Defendant Tawanda Andrews and Edward Tinsley were engaged in a

volatile relationship when, four years ago, she assaulted him with her

automobile, causing him to suffer a compound fracture of his left leg. Defendant

drove away from the scene. When soon thereafter she was stopped by an Asbury

Park police officer, defendant acknowledged her culpability, saying, "I'm not

gonna lie, I just had a domestic on Ridge Ave and, yes, I hit him with my car."

      Defendant was indicted and charged with: third-degree leaving the scene

of a motor vehicle accident resulting in serious bodily injury,  N.J.S.A. 2C:12- -

1.1; fourth-degree assault by auto,  N.J.S.A. 2C:12-1(c)(1); and second-degree

aggravated assault,  N.J.S.A. 2C:12-1(b)(1).     Pursuant to a negotiated plea

agreement, on October 3, 2016, defendant pleaded guilty to an amended charge

of third-degree aggravated assault,  N.J.S.A. 2C:12-1(b)(7), in exchange for the

State's agreement to dismiss the remaining charges and recommend a

probationary term. The State also agreed to allow defendant to seek admission

into the pretrial intervention program (PTI), while retaining its right to oppose

that application.

      Defendant was rejected from admission into PTI in January 2017 and did

not thereafter seek relief.   That month she was sentenced to a two-year

probationary term. Defendant did not file an appeal.


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      In June 2018, well into her probationary term, defendant filed a post-

conviction relief (PCR) petition, which was later amended in May 2019.

Defendant claimed she was denied the effective assistance of counsel because

her trial attorney failed to submit – for consideration in her PTI application –

letters and other communications she had received from Tinsley (hereafter "the

Tinsley correspondence").

      The PCR judge heard argument in August 2019, by which time defendant

had completed her probationary term. The PCR judge found a need for an

evidentiary hearing, which occurred over the course of three days in August and

September 2019. After hearing testimony from defendant and her trial attorney,

the PCR judge concluded that defendant established her trial attorney was

ineffective and, by order entered on September 20, 2019, the judge vacated the

judgment of conviction and guilty plea, and allowed defendant to reapply for

admission into PTI, this time with the Tinsley correspondence.

      We granted leave to appeal the September 20, 2019 order, and now

consider the State's arguments that the PCR judge erred by: (1) interfering with

the prosecutor's charging decisions; (2) finding prejudice could be based on the

conviction's potential impact on defendant's employment prospects; and (3)

failing to apply the procedural bar contained in Rule 3:22-4. Having considered


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these arguments, we reverse because, despite our deferral to the PCR judge's

factual findings, State v. Nash,  212 N.J. 518, 540 (2013), and assuming trial

counsel's failure to provide the Tinsley correspondence when initially seeking

admission to PTI fell below professional norms, we conclude there is no

"reasonable probability that, but for counsel's unprofessional error," defendant

would have been admitted to PTI. Strickland v. Washington,  466 U.S. 668, 694

(1984); State v. Fritz,  105 N.J. 42, 52 (1987).

      Assuming the Tinsley correspondence had been provided when defendant

initially sought entry into PTI, the question for the PCR judge was whether the

outcome would probably have been different; that is, whether there was "a

probability sufficient to undermine confidence" in the prior PTI disposition .

Strickland,  466 U.S.  at 694; Fritz,  105 N.J. at 52. The answer to that question

must undoubtedly be in the negative.

      To be sure, one of the reasons given for the rejection of defendant's PTI

application was that Tinsley had provided a victim impact statement and

opposed defendant's acceptance into PTI. In seeking post-conviction relief,

defendant argued that the Tinsley correspondence – sent to defendant while

Tinsley was incarcerated on an unrelated matter – revealed a different intention.

That, however, is not entirely clear.       Tinsley may have expressed in his


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correspondence a desire to rekindle their relationship, and he may have uttered

feelings of affection toward defendant, but he never said anything in those

communications that would suggest the incident did not happen as the State

alleged – or as defendant herself admitted when pleading guilty – nor did he

express a view about defendant's entry into PTI.

      But, assuming the Tinsley correspondence could be interpreted in a light

favorable to defendant's position regarding PTI, it would at best call into

question only one of the many reasons given by the prosecutor in objecti ng to

defendant's PTI application. The prosecutor did not just object because Tinsley

objected; the prosecutor expressed numerous valid reasons for opposing

defendant's PTI admission:

                the presumption against admission for persons
                 charged "with intentionally inflicting violence
                 upon another" and here, as the prosecutor stated,
                 "defendant ran over [Tinsley] with an
                 automobile" and had already pleaded guilty to an
                 aggravated assault. See R. 3:28-4(b)(1); N.J.S.A.
                 2C:43-12(e)(2).

                the needs and interests of the victim and society.
                 Other than the desire of Tinsley as then
                 expressed, the prosecutor relied as well, in citing
                  N.J.S.A. 2C:43-12(e)(7), on the State's "interest
                 in formally prosecuting individuals who use
                 automobiles to assault and injure others."



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                the crime was "of an assaultive or violent nature."
                  N.J.S.A. 2C:43-12(e)(10).

                the crime was of such a nature that the value of
                 supervisory treatment was outweighed by the
                 public need for prosecution.  N.J.S.A. 2C:43-
                 12(e)(14). As the State pointed out, not only was
                 the crime violent and assaultive but it consisted
                 of defendant running the victim over after a
                 verbal dispute "while the [victim] was standing
                 on a public sidewalk in a densely populated urban
                 area." Thus, the prosecution objected because of
                 the "need to publicly prosecute individuals who
                 engage in public acts of violence."

                one of the purposes of PTI is to provide the least
                 burdensome possible means of prosecuting
                 individuals charged with committing victimless
                 offenses, but the prosecutor correctly urged that
                 this was not a victimless offense.

While acknowledging factors that favored defendant's entry into PTI – her

"apparent remorse" that "tends to speak well of her motivation," her maintenance

of gainful employment and "aspirations to further her education and training in

her chosen field," and her lack of a prior criminal history – the prosecutor found

the contrary circumstances delineated above outweighed these positive factors.

      Assuming the Tinsley correspondence had been presented when PTI was

sought, it at best would have removed the victim's desire from the prosecutor's

side of the ledger over to defendant's side. There remained, however: the

particularly violent nature of the crime; the serious harm caused to the victim;

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the presumption against PTI for such crimes; society's need to publicly prosecute

such offenders; and the particularly brazen nature of the conduct, the crime

having been committed in a densely populated urban area.

      The question for the PCR judge was not whether defendant's PTI

application would have been different but whether it is reasonably probable that:

(1) the prosecutor's objection would have been overridden by the trial court if

the Tinsley correspondence was known, or (2) this court would have upheld such

a determination if the trial court did permit PTI admission over the prosecutor's

objection. As to the first inquiry, we can only say that the legal standard which

governed the trial court in considering an application into PTI over the

prosecutor's objection would have precluded such relief. Moreover, we can say

without equivocation that had the trial court overridden the prosecutor's

objection, we would have reversed.

      In such matters, we start with the proposition that it is the "fundamental

responsibility" of the prosecutor to decide whom to prosecute. State v. Kraft,

 265 N.J. Super. 106, 111 (App. Div. 1993). Deciding whether to admit a

defendant into PTI is a "quintessentially prosecutorial function," State v.

Wallace,  146 N.J. 576, 582 (1996), that calls for an "individualized assessment

of [a defendant's] 'amenability to correction' and potential 'responsiveness to


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rehabilitation,'" along with a consideration of all the statutory factors and

guidelines. State v. Roseman,  221 N.J. 611, 621-22 (2015) (quoting State v.

Watkins,  193 N.J. 507, 520 (2008)). Prosecutors have wide latitude in PTI

determinations. State v. Nwobu,  139 N.J. 236, 246 (1995). A prosecutor's

objection to PTI admission is afforded "extreme deference," Kraft,  265 N.J.

Super. at 112, which has also been referred to as "enhanced" or "extra"

deference, State v. Baynes,  148 N.J. 434, 443-44 (1997). So, defendants are

saddled with "a heavy burden" when seeking to overcome prosecutorial vetoes ,

Kraft,  265 N.J. Super. at 112, and courts may set aside a prosecutor's objection

"only" when the prosecutor's decision constitutes a "most egregious example[]

of injustice and unfairness," State v. DeMarco,  107 N.J. 562, 566 (1987). To

overturn a rejection of a PTI application, a defendant must "clearly and

convincingly establish that the prosecutor's refusal . . . was based on a patent

and gross abuse of . . . discretion." Wallace,  146 N.J. at 582 (quoting State v.

Leonardis,  73 N.J. 360, 382 (1977)). An abuse of discretion occurs when the

"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." Id. at 583 (quoting State v.

Bender,  80 N.J. 84, 93 (1979)). For such an abuse of discretion to rise to the


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level of "patent and gross," it must be shown that the prosecutorial error

complained of will "clearly subvert the goals underlying [PTI]." Bender,  80 N.J.

at 93.

         A principled application of these standards – had the PTI application been

supported by the Tinsley correspondence – would have inevitably led to either

the trial court's refusal to override the prosecutor's position or, if the judge was

determined to override it, our reversal of that determination. There remained –

despite counsel's failure to combat the assertion that the victim opposed PTI

admission with the Tinsley correspondence – more than ample grounds for

defendant's rejection from PTI. Put in the language of the Strickland test, there

is no "reasonable probability" that defendant would have succeeded in gaining

PTI admission even if counsel submitted the Tinsley correspondence.

Confidence in the outcome of the PTI application has not been undermined by

trial counsel's omission.




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      The order granting post-conviction relief is reversed and the judgment of

conviction is reinstated. 1




1
  We agree – as apparently do the parties – that the PCR judge should not have
vacated either the guilty plea or the judgment of conviction. Even if the judge
correctly ruled on the PCR petition, he should only have permitted defendant to
reapply for PTI admission with the Tinsley correspondence and awaited the
outcome before vacating either the guilty plea or the judgment of conviction.
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