State of New Jersey v. Jeffrey Walker ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2384-22
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
June 3, 2024
v. APPELLATE DIVISION
JEFFREY WALKER,
Defendant-Appellant.
__________________________
Submitted May 6, 2024 – Decided June 3, 2024
Before Judges Sabatino, Marczyk, and Chase.
On appeal from the Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
11-02-0411.
Wolf Law PC, attorneys for appellant (Robert W.
Ruggieri, of counsel; Randolph H. Wolf, on the brief).
Raymond S. Santiago, Monmouth County Prosecutor,
attorney for respondent (Monica Lucinda do Outeiro,
Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
CHASE, J.S.C. (temporarily assigned)
The question before us on appeal is whether, in the context of a criminal
case, a defendant has the right to direct the sequence in which victims receive
restitution payments and if restitution can be extinguished when a victim has
not been located. Cancelling out restitution would run counter to the
remunerative, rehabilitative, deterrence, and punitive goals of restitution, allow
a defendant to keep the fruits of their offense, and deprive victims of
compensation for the losses suffered. As such, we conclude a defendant
cannot control in which order his victims get paid, and restitution should not
be extinguished when a victim has not been located.
I.
In 2011, defendant Jeffery Walker was indicted for second-degree theft
by illegal retention, N.J.S.A. 2C:20-9; second-degree misappropriation of
entrusted property, N.J.S.A. 2C:21-15; third-degree theft by deception,
N.J.S.A. 2C:20-4; and third-degree misappropriation of entrusted property,
N.J.S.A. 2C:21-15. Defendant misappropriated health care insurance
premiums from his company's employees instead of paying them to the
insurance carrier. Pursuant to an agreement with the State, defendant pleaded
guilty to an amended count of third-degree theft by illegal retention and third-
degree misappropriation of entrusted property. In exchange, the State
recommended a sentence of five years' probation conditioned on defendant's
disqualification from holding future government employment, maintenance of
full-time employment, and paying of over $72,000 in restitution to his victims.
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In July 2012, defendant was sentenced to probation in accordance with
the plea agreement. An amended judgment of conviction set the restitution
amount at $72,471.35, payable to his 101 victims "over a period of five years
. . . payable through probation in equal installments over the period of
probation." Defendant's probation ended in 2017, and the then-outstanding
balance of his restitution was transferred to collections. As of October 20,
2022, defendant had paid only $27,746 of the money he misappropriated, still
owing $45,595.35.
Rather than paying the substantial arrears of the restitution amount he
agreed to and was ordered to pay, defendant sought instead to reduce that
amount by attempting to obtain information from the Monmouth County
Probation Department to determine what amount was still owed to the
individual victims and to pay off their claims. Defendant learned his
restitution had been prorated among all of the victims. He also learned some
of the victims had not been located and their prorated restitution escheated to
the State in case they were later located.
In November 2022, defendant filed a PCR petition to return the
escheated funds to the Monmouth County Probation Department, to pay those
funds to victims who had been located, to reduce the amount of restitution to
the amounts still owed after escheated funds had been distributed to the located
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victims, or alternatively, to fix the current balance of restitution only to those
amounts still owed to located victims. Defendant then argued it would be in
the interest of justice that his restitution obligation be deemed completed once
the located victims were paid the amount of their loss and he be relieved from
having to make any further payments for those victims who had not been
located.
After hearing oral argument, Judge Chad N. Cagan authored a thorough
nineteen-page written opinion denying defendant's PCR. Although the court
held the motion was procedurally deficient because defendant offered no proof
of service upon the probation department, a necessary party, the court
addressed the procedural and substantive errors inherent in defendant's
attempts to use PCR to obtain his desired relief.
The court held the PCR petition was untimely under Rule 3:22-
12(a)(1)(A) and defendant's claim of "excusable neglect" was unsupported by
the facts presented, but even if defendant's factual assertions were true, there
was no reasonable probability enforcement of the time bar would result in a
fundamental injustice. The court cited defendant's agreement to pay
restitution, his clear awareness of his obligations, and his failure to entirely
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pay them over the five years of probation as he had been ordered. 1 The court
also found no fundamental injustice warranting waiver of the five-year
statutory time limit to file a PCR because defendant had agreed to pay the
entire amount as part of his plea, had not followed his agreement, and did not
allege the outcome of the proceedings was unjust. Judge Cagan then noted
defendant agreed at oral argument his sentence was not illegal, and so even if
the application was not time-barred, it did not fit into any cognizable ground
for relief under Rule 3:22-2. Defendant appeals from a March 7, 2023 order
denying his petition.
On appeal, defendant argues:
POINT I.
THE COURT BELOW ERRED IN DENYING
[DEFENDANT'S] MOTION OF NOVEMBER 1,
2022. THE COURT BELOW GAVE THREE
REASONS FOR DENYING THE MOTION, BUT
UPON CLOSE REVIEW NONE OF THESE HAVE
MERIT. THUS, THE DECISION OF THE COURT
BELOW MUST BE REVERSED. AT THE VERY
LEAST, THE COURT BELOW SHOULD HAVE
DIRECTED THE PROBATION DEPARTMENT TO
ALLOCATE THE PAYMENTS ALREADY
RECEIVED FROM [DEFENDANT] TO THE
VICTIMS WHO HAVE BEEN LOCATED.
BEYOND THAT, THE COURT BELOW SHOULD
HAVE MODIFIED THE JUDGMENT OF
1
Defendant's probation could have been extended for up to five additional
years in order for him to complete his restitution. N.J.S.A. 2C:45-2(c)(2).
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CONVICTION SO THAT ONCE THE VICTIMS
ALREADY LOCATED HAD BEEN FULLY
COMPENSATED, [DEFENDANT] WOULD HAVE
NO FURTHER OBLIGATIONS TOWARDS
RESTITUTION.
A. The [c]ourt [b]elow denied the Motion
in part because defendant had not
served the Motion papers on the
Probation Department. There is
absolutely no [Rule] that requires such
service. Furthermore, if the [c]ourt
below felt that under the circumstances
such service was appropriate and/or
necessary, it should have directed
defendant's counsel to do so, and held
consideration of the Motion until it
was complete, and Probation had an
opportunity to respond if it so chose.
The holding of the [c]ourt [b]elow
must be reversed.
B. The [c]ourt [b]elow denied the Motion
in part because it determined it was
untimely under R[ule] 3:22-12. In so
ruling the [c]ourt [b]elow applied the
wrong standard, holding that the
excusable neglect standard applied
rather than the discovery doctrine
standard. Applying the proper
standard the Motion was timely,
because on the facts the time to file did
not begin to run until Probation
provided the report on the payments
made by defendant. The holding of the
[c]ourt [b]elow must be reversed.
C. The [c]ourt [b]elow denied the Motion
in part because it held that the
application failed to establish any
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grounds for granting relief under
R[ule] 3:22-2. In so holding, the
[c]ourt [b]elow relied on facts that
were unsupported by the record, and
legal principles that were wrong.
Thus, the decision below must be
reversed.
II.
We review the legal conclusions of a PCR court de novo. State v.
Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard
additionally applies to mixed questions of law and fact. Id. at 420. Finally,
we use a de novo standard of review when a PCR court does not conduct an
evidentiary hearing. State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016)
(citing Harris, 181 N.J. at 421).
Rule 3:22-12 states in pertinent part:
[N]o petition shall be filed pursuant to this rule more
than [five] years after the date of entry pursuant to
Rule 3:21-5 of the judgment of conviction that is
being challenged unless:
(A) it alleges facts showing that the delay beyond said
time was due to defendant's excusable neglect and that
there is a reasonable probability that if the defendant's
factual assertions were found to be true enforcement
of the time bar would result in a fundamental
injustice[.]
[R. 3:22-12(a)(1)(A).]
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The five-year time bar may be relaxed only under the specified circumstances
set forth in Rule 3:22-12(a)(1)(A). In assessing whether excusable neglect
justifies relaxation of the time bar for PCR petitions set forth in Rule 3:22-12,
we "consider the extent and cause of the delay, the prejudice to the State, and
the importance of the petitioner's claim in determining whether there has been
an 'injustice' sufficient to relax the time limits." State v. Norman, 405 N.J.
Super. 149, 159 (App. Div. 2009) (quoting State v. Afanador, 151 N.J. 41, 52
(1997)). More than "a plausible explanation for [the defendant's] failure to file
a timely PCR petition" is required. Ibid. Our Supreme Court has described
the required showing as one of "compelling, extenuating circumstances," State
v. Milne, 178 N.J. 486, 492 (2004) (quoting Afanador, 151 N.J. at 52), or
alternatively, "exceptional circumstances . . . ." State v. Murray, 162 N.J. 240,
246 (2000) (citing State v. Mitchell, 126 N.J. 565, 580 (1992)).
We reject defendant's claims and affirm substantially for the reasons
expressed in the thorough and cogent opinion of Judge Cagan. We add the
following.
Defendant's amended judgment of conviction was filed on July 13, 2012.
Therefore, his petition should have been filed by July 13, 2017. Instead, it was
filed over five years later, in November 2022. Our review of the record shows
defendant did not demonstrate excusable neglect, nor did he allege facts
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constituting "compelling, extenuating circumstances" or "exceptional
circumstances" justifying relaxation of the time bar under Rule 3:22-
12(a)(1)(A).
Moreover, defendant's claim his petition was filed within one year of
"the date on which the factual predicate for the relief sought was discovered,
[and] that factual predicate could not have been discovered earlier through the
exercise of reasonable diligence" fails on its face. Defendant did not even
engage an attorney to find out what had happened to the restitution until more
than seven years after his conviction. His lack of concern for his victims until
seven years later was not "reasonable diligence" on his part, especially since
his stated goal is to avoid disgorging himself of thousands of dollars in ill -
gotten gains.
Despite the petition's procedural defects, out of an abundance of caution,
the judge addressed defendant's petition on its merits, holding the petition did
not assert a "cognizable ground for PCR" as it did not fit into the enumerated
causes under Rule 3:22-2(a)-(e). Defendant concedes the original sentencing
judge did not err but posits "subsequent developments have rendered the
original judgment unfair, creating a miscarriage of justice." Nothing can be
further from the truth.
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Defendant cites no authority to support his request to reduce the amount
of restitution he agreed to pay because some of the scores of victims he
defrauded have yet to be located. We do not give our imprimatur to
defendant's proposal to reach out directly to victims to essentially renegotiate
individual restitution settlements with them.2 Criminal courts should not
facilitate, much less authorize, contact between convicted offenders and their
victims except through the probation department or the prosecutor's office
victim advocate. Importantly, moreover, we deem a private settlement
agreement to extinguish or reduce a restitution award to be contrary to public
2
The Code of Criminal Justice recognizes that the civil law provides another
avenue through which a crime victim may seek recompense from the
defendant. N.J.S.A. 2C:44-2(f) provides:
The ordering of restitution pursuant to this section
shall not operate as a bar to the seeking of civil
recovery by the victim based on the incident
underlying the criminal conviction. Restitution
ordered under this section is to be in addition to any
civil remedy which a victim may possess, but any
amount due the victim under any civil remedy shall be
reduced by the amount ordered under this section to
the extent necessary to avoid double compensation for
the same loss, and the initial restitution judgment shall
remain in full force and effect.
This section presupposes a civil action initiated by a victim. Nothing in this
section authorizes a defendant to reach out to a victim to seek to reduce the
restitution amount ordered by a sentencing court.
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policy. See State v. DeAngelis, 329 N.J. Super. 178, 180-81 (App. Div. 2000).
We reiterate and emphasize the restitution amount and framework was part of
the plea agreement negotiated with the State and approved by the trial court.
"[T]he legislative purpose of restitution is not merely remunerative but
encompasses rehabilitative, deterrence[,] and punitive goals as well." Felicioni
v. Admin. Off. of the Cts., 404 N.J. Super. 382, 394 (App. Div. 2008) (citing
State v. Pulasty, 259 N.J. Super. 274, 283 (App. Div. 1994)); see also State v.
Newman, 132 N.J. 159, 173 (1992) (noting the statutory preconditions for
restitution are plainly satisfied where a defendant derived a pecuniary gain
from the offense). To extinguish defendant's obligation to pay the full
restitution would unjustly reward defendant for his failure to timely pay the
full restitution amount within his negotiated five years. Having failed to
comply with the agreed-upon payment scheduled negotiated with the
prosecutor, defendant is hard pressed to seek to renegotiate his restitution
exposure with individual victims. Moreover, his proposal would allow him to
keep the fruits of his offense and deprive his victims of compensation for the
losses suffered because of his crime. Such an outcome would run counter to
the remunerative, rehabilitative, deterrence, and punitive goals of restitution.
Felicioni, 404 N.J. Super. at 394.
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To the extent we have not addressed them, any remaining arguments
raised by defendant lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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