State v. Davon M. Johnson (080394) (Essex County and Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Davon M. Johnson (A-58-17) (080394)
Argued March 11, 2019 -- Decided May 30, 2019
TIMPONE, J., writing for the Court.
This appeal arises from defendant Davon M. Johnson’s unsuccessful application for
pretrial intervention (PTI), filed in anticipation of his indictment for third-degree possession
of a controlled dangerous substance (CDS) within 1000 feet of a school zone, N.J.S.A.
2C:35-7(a). Both the presumption against PTI for second-degree offenses and the
presumption against PTI for the sale of narcotics were cited in the denial of his application.
The Court considers whether those presumptions should have been applied in this case.
In May 2014, defendant was charged with motor vehicle and CDS offenses, including
violation of N.J.S.A. 2C:35-7(a). He applied for PTI and included a statement of compelling
reasons supporting his admission. The prosecutor rejected defendant’s application. She
relied on State v. Caliguiri, 158 N.J. 28, 43 (1999), which permitted prosecutors to treat an
N.J.S.A. 2C:35-7 offense as a second-degree offense, thereby triggering the presumption
against admission into PTI. And, quoting PTI Guideline 3(i), the prosecutor found defendant
presumptively ineligible for PTI because he was charged with the “sale or dispensing” of a
Schedule I or II narcotic and was not drug dependent.
Following the denial of his application, a grand jury indicted defendant. Defendant
appealed the denial to the trial court, which refused to disturb the prosecutor’s determination.
Defendant then entered a guilty plea to third-degree possession of heroin. He appealed to the
Appellate Division, arguing the prosecutor incorrectly applied the two presumptions against
PTI. When that appeal was unsuccessful, defendant petitioned for certification, which the
Court granted. 233 N.J. 23 (2018).
HELD: The 2009 amendments to N.J.S.A. 2C:35-7’s sentencing structure reflect a more
flexible sentencing policy that renders Caliguiri’s reasoning no longer viable. The
presumption against PTI for second-degree offenders cannot be applied to N.J.S.A. 2C:35-
7(a) offenders. And the presumption against PTI for the “sale” of narcotics was not
applicable here because defendant was charged with possession with intent to “distribute” and
there is no allegation or evidence that he sold the narcotics. The decision to deny defendant’s
application must be reevaluated.
1
1. PTI is a diversionary program through which certain offenders are able to avoid criminal
prosecution by receiving early rehabilitative services expected to deter future criminal
behavior. At the time defendant’s PTI application was denied, Guideline 3 to Rule 3:28
included a list of mandatory factors to be considered in addition to those enumerated in
N.J.S.A. 2C:43-12(e). Of particular relevance here, Guideline 3(i) then provided that “[a]
defendant charged with a first or second degree offense or sale or dispensing of Schedule I or
II narcotic drugs . . . should ordinarily not be considered for enrollment in a PTI program.”
Guideline 3(i) to Rule 3:28 (2014). (pp. 9-11)
2. The penalty structure for violations of N.J.S.A. 2C:35-7, which is part of the
Comprehensive Drug Reform Act of 1987 (CDRA), is similar to that for second-degree
offenses for which admission to PTI is presumptively unavailable. In Caliguiri, the Court
found the “especially stern punishments” for N.J.S.A. 2C:35-7 offenders, “[i]n light of the
general tenor of the CDRA and the goals of the PTI Guidelines,” countenanced allowing
prosecutors to apply the presumption against PTI to second-degree offenders. 158 N.J. at 43.
But that decision was based on a sentencing structure that has since evolved. In 2009, the
Legislature altered N.J.S.A. 2C:35-7 by enacting a new subsection (b), which authorizes
courts to “waive or reduce the minimum term of parole ineligibility required under subsection
a.,” or to “place the defendant on probation.” Caliguiri’s determination that the presumption
against PTI for first- and second-degree offenses should encompass third-degree school zone
offenses, although well-reasoned at the time, is no longer consistent with the Legislature’s
intent. Based on the changed statutory language and the Legislature’s clear intent in
amending N.J.S.A. 2C:35-7, the presumption against PTI for first- and second-degree
offenders can no longer be applied to N.J.S.A. 2C:35-7(a) offenders. Because the prosecutor
relied, in part, on that presumption, the Court remands to the prosecutor to reconsider
defendant’s application. The Court disturbs no other portion of Caliguiri. (pp. 12-15)
3. The presumption against PTI for the “sale or dispensing” of a Schedule I or II narcotic, as
it was set forth in Guideline 3(i), is also inapplicable. N.J.S.A. 2C:35-7(a) uses the terms
“distribute” and “dispense” but does not use the term “sale.” Possession with intent to
distribute is not technically a sale, nor is it “dispensing.” Defendant was not charged with
selling or dispensing narcotics because there was no evidence that he sold or dispensed
narcotics. Imputing a presumption against PTI for a “sale” to defendant, who was charged
with “possession with intent to distribute,” was improper. Because the prosecutor considered
two inapplicable presumptions, the decision to deny defendant’s application must be
reevaluated. The Court remands to the prosecutor and, if need be, to the trial court for
appropriate action following the prosecutor’s review. (pp. 15-16)
The judgment of the Appellate Division is reversed and the matter is remanded.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’S opinion.
2
SUPREME COURT OF NEW JERSEY
A-58 September Term 2017
080394
State of New Jersey,
Plaintiff-Respondent,
v.
Davon M. Johnson,
Defendant-Appellant.
On certification to the Superior Court,
Appellate Division.
Argued Decided
March 11, 2019 May 30, 2019
Peter T. Blum, Assistant Deputy Public Defender, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Peter T. Blum, of counsel and on the
briefs).
Kayla Elizabeth Rowe, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Kayla Elizabeth Rowe, of counsel and
on the briefs).
JUSTICE TIMPONE delivered the opinion of the Court.
1
This appeal arises from defendant Davon M. Johnson’s unsuccessful
application for pretrial intervention (PTI), filed in anticipation of his
indictment for third-degree possession of a controlled dangerous substance
(CDS) within 1000 feet of a school zone, N.J.S.A. 2C:35-7(a). The significant
question before us is whether the presumption against PTI for second-degree
offenses or the presumption against PTI for the sale of narcotics should have
been applied in this case.
In State v. Caliguiri, we recognized the presumption against PTI for
second-degree offenses could be applied to N.J.S.A. 2C:35-7 offenders
because, at the time, a school-zone conviction required the imposition of a
period of parole ineligibility. 158 N.J. 28, 37-38, 42-43 (1999). We observed
that “[t]he penalty structure for this type of offense [was] similar to that for
second-degree offenses for which admission to PTI is presumptively
unavailable.” Id. at 43 (quoting State v. Baynes, 148 N.J. 434, 449 (1997)).
Since Caliguiri was decided, the Legislature amended N.J.S.A. 2C:35-7,
modifying and relaxing the statute’s sentencing structure. See L. 2009, c. 192,
§ 1. While maintaining the statute’s mandatory-minimum sentencing
structure, the Legislature granted courts the latitude to waive or reduce the
period of parole ineligibility or impose a term of probation under certain
circumstances. Ibid.
2
We find that the 2009 amendments to N.J.S.A. 2C:35-7’s sentencing
structure reflect a more flexible sentencing policy that renders Caliguiri’s
reasoning no longer viable. Accordingly, we hold the presumption against PTI
for second-degree offenders cannot be applied to N.J.S.A. 2C:35-7(a)
offenders.
We also find that the presumption against PTI for the “sale” of narcotics
was not applicable here because defendant was charged with possession with
intent to “distribute” and there is no allegation or evidence that he sold the
narcotics.
Despite the prosecutor’s dutiful consideration of defendant’s application
for PTI, including the factors set forth in N.J.S.A. 2C:43-12(e), both
presumptions were cited in the denial of his application. We remand so that
the prosecutor can reassess defendant’s application without consideration of
the presumptions.
I.
A.
We distill the following facts from the record in the PTI proceedings.
On May 18, 2014, defendant was driving through Newark when he was
stopped by a Newark police officer for running a red light. As defendant
reached into the glove compartment for his credentials, three bricks of heroin
3
fell to the floor. Each brick contained 150 individual bags of heroin.
Defendant was charged with third-degree possession of heroin, N.J.S.A.
2C:35-10(a)(1), third-degree possession of heroin with intent to distribute,
N.J.S.A. 2C:35-5(b)(3), and third-degree possession of heroin with intent to
distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7. He was also
charged with two motor vehicle violations for his failure to observe the red
light, N.J.S.A. 39:4-81, and for the possession of a CDS in a motor vehicle,
N.J.S.A. 39:4-49.1.
On July 10, 2014, defendant applied for PTI and included a two-page
statement of compelling reasons supporting his admission in accord with
Guideline 2 to Rule 3:28 (2014). Since the Guidelines were eliminated in
2018, Rule 3:28-3(b)(1) now provides for the submission of a statement of
compelling reasons. As defendant’s letter explained, defendant, who was
twenty-one years old at the time of his arrest, had no prior criminal history,
graduated from high school, matriculated into Bloomfield College where he
studied accounting, worked on a cabin maintenance and cleaning team at
Newark Liberty International Airport, and spent time with his younger sisters,
nieces, and nephews. In the statement, defendant asserted PTI would be
sufficient to deter any future unlawful conduct, and an indictable conviction
4
would cause a substantial hardship to him and his family by inhibiting his
chances of completing college and obtaining employment.
After reviewing defendant’s application and statement, the Probation
Office recommended defendant’s application for PTI be denied. Highlighting
that defendant was found with 150 glassine envelopes of heroin and reported
no history of substance abuse, the Probation Office reasoned his application
should be denied “[b]ased on the facts of the case and the likelihood of the
present offense being a part of an organized criminal activity as well as a
pattern of anti-social activity.”
On November 7, 2014, the prosecutor rejected defendant’s application
for PTI. She found five of the N.J.S.A. 2C:43-12(e) factors to be aggravating
factors. In particular, the prosecutor found defendant presumptively ineligible
for PTI under N.J.S.A. 2C:43-12(e)(1) based on the nature of the offense. She
relied on our decision in Caliguiri, 158 N.J. at 43, permitting prosecutors, for
PTI evaluation purposes, to treat an N.J.S.A. 2C:35-7 offense as a second-
degree offense, thereby triggering the presumption against admission into PTI.
And, quoting Guideline 3(i), the prosecutor found defendant was also
presumptively ineligible for PTI because he was charged with the “sale or
dispensing” of a Schedule I or II narcotic and was not drug dependent.
5
The prosecutor found several mitigating factors present in defendant’s
case, including defendant’s age; his lack of criminal history; the absence of
violence in commission of the crime; the absence of evidence suggesting
defendant’s involvement with organized crime; and the absence of other
defendants. See N.J.S.A. 2C:43-12(e)(3), (9), (10), (13), and (16). Weighing
the factors, the prosecutor determined that defendant had “not presented
sufficient compelling reasons justifying admission into PTI,” and that he had
failed to “overcome his heavy burden of rebutting the presumptions against his
admission.” Following the denial of his application, an Essex County Grand
Jury indicted defendant on January 9, 2015, on the charges contained in the
original compliant.
B.
On March 23, 2015, before trial, defendant filed an untimely appeal to
the Law Division, seeking review of the denial of his PTI application. The
trial court refused to disturb the prosecutor’s determination. In addition to
finding the appeal procedurally barred under the then-existing Rule 3:28(h),
which required an appeal of the denial of PTI to be filed within ten days (now
codified in Rule 3:28-6(a)), the court found defendant did not establish that the
prosecutor failed to conduct an individualized analysis of his PTI application.
The court also found the prosecutor correctly applied the presumption against
6
PTI because the prosecutor charged defendant under N.J.S.A. 2C:35-7
(possession of controlled dangerous substances near or on school property) .
The court reasoned defendant’s application was properly denied because he
failed to show compelling reasons demonstrating his amenability to
rehabilitation or something idiosyncratic in his background that would
overcome the presumption against admission.
Three months later, defendant entered a guilty plea to third-degree
possession of heroin, N.J.S.A. 2C:35-10(a)(1). The court sentenced defendant
to two years’ probation and 190 hours of community service.
C.
Defendant appealed to the Appellate Division, arguing the prosecutor
incorrectly applied the two presumptions against admission into PTI.
Defendant asserted that the presumption against PTI for N.J.S.A. 2C:35-7
offenders was no longer viable in light of amendments made to that statute in
2009. He also disputed the prosecutor’s application of the presumption against
PTI for the “sale or dispensing” of narcotics because he was not engaged in or
charged with the sale of heroin.
Despite finding defendant’s arguments procedurally barred because he
did not raise them below, the appellate panel commented on the merits of his
claim. Relying on the Appellate Division’s recent decision in State v.
7
Coursey, 445 N.J. Super. 506, 511 (App. Div. 2016), which recognized
Caliguiri as providing guidance on how to interpret Guideline 3(i), the panel
determined that the presumption against PTI had not been eroded by the
amendments to N.J.S.A. 2C:35-7. The panel dismissed defendant’s second
argument as meritless, reasoning that the presumption against PTI was applied
in Caliguiri, where the defendant was also charged with possession in a school
zone under similar circumstances.
We granted Defendant’s petition for certification. 233 N.J. 23 (2018).
II.
A.
Defendant reasserts that the 2009 amendments significantly relaxed
N.J.S.A. 2C:35-7’s sentencing structure and that the typical offender “should
be treated like an ordinary third-degree offender.” Defendant also resubmits
that the presumption against PTI for the “sale” of narcotics should not have
been applied because he was charged with possession with intent to distribute,
and the term “distribute” used in the statute is broader than the term “sale” that
was used in the Guidelines. Lastly, defendant contends the prosecutor abused
her discretion in denying his application.
8
B.
The State disputes that the 2009 amendments overrode the presumption
against PTI articulated in Caliguiri. The State contends that the 2009
amendments in no way suggest that the Legislature no longer views possession
of heroin with intent to distribute it in a school zone as a serious offense,
highlighting that the Legislature maintained the presumption of incarceration.
Next, the State asserts the facts of this case are clear and show defendant
intended to sell the heroin. The State insists that defendant should not be freed
from the presumption against PTI merely because he was arrested before he
could complete the sale.
Finally, the State argues that it is in the prosecutor’s discretion whether
to recommend a defendant for PTI and that, in denying defendant’s application
in this case, the prosecutor carefully considered all relevant factors under
N.J.S.A. 2C:43-12(e).
III.
A.
“PTI is a ‘diversionary program through which certain offenders are able
to avoid criminal prosecution by receiving 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)). Prosecutors
9
are tasked with making individualized assessments of each defendant,
particularly his or her “amenability to correction” and likely “responsiveness
to rehabilitation.” State v. Watkins, 193 N.J. 507, 520 (2008) (quoting
N.J.S.A. 2C:43-12(b)(1)).
Until recently, “[t]he assessment of a defendant’s suitability for PTI
must be conducted under the Guidelines for PTI provided in Rule 3:28, along
with consideration of factors listed in N.J.S.A. 2C:43-12(e).” Roseman, 221
N.J. at 621. Following changes to Rule 3:28, however, the Guidelines were
eliminated. Now, many of their prescriptions -- with significant variations --
are contained in Rules 3:28-1 to -10. N.J.S.A. 2C:43-12(e) sets forth a list of
seventeen nonexclusive factors that prosecutors must consider in connection
with a PTI application. At the time defendant’s PTI application was denied,
Guideline 3 to Rule 3:28 then included a list of eleven (later twelve)
mandatory factors to be considered “in addition to” those enumerated in the
statute. Of particular relevance here, Guideline 3(i) provided that “[a]
defendant charged with a first or second degree offense or sale or dispensing
of Schedule I or II narcotic drugs . . . by persons not drug dependent, should
ordinarily not be considered for enrollment in a PTI program except on joint
application by the defendant and the prosecutor.” Guideline 3(i) to Rule 3:28
(2014). We note that there is no similar provision dealing with the sale of
10
narcotics in the post-amendment rules governing the Pretrial Intervention
Program. “To overcome ‘the presumption against PTI, defendant must
establish “compelling reasons” for admission’ to the program.” Watkins, 193
N.J. at 520 (quoting Nwobu, 139 N.J. at 252).
“PTI is essentially an extension of the charging decision, therefore the
decision to grant or deny PTI is a ‘quintessentially prosecutorial function.’”
Roseman, 221 N.J. at 624 (quoting State v. Wallace, 146 N.J. 576, 582
(1996)). “As a result, the prosecutor’s decision to accept or reject a
defendant’s PTI application is entitled to a great deal of deference.” Ibid. A
court reviewing a prosecutor’s decision to deny PTI may overturn that decision
only if the defendant “clearly and convincingly” establishes the decision was a
“patent and gross abuse of discretion.” Wallace, 146 N.J. at 583.
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 judgement. 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.
[Roseman, 221 N.J. at 625 (quoting State v. Bender, 80
N.J. 84, 93 (1979) (citation omitted)).]
11
When a defendant convincingly demonstrates a patent and gross abuse of
discretion, a court may admit the defendant into PTI over the prosecutor’s
objection. Id. at 624-25.
In cases concerning legal error by the prosecutor, however, “there is a
relatively low threshold for judicial intervention because ‘[t]hese instances
raise issues akin to questions of law, concerning which courts should exercise
independent judgment in fulfilling their responsibility to maintain the integrity
and proper functioning of PTI as a whole.’” Watkins, 193 N.J. at 520-21(alteration in original) (quoting State v. Dalglish, 86 N.J. 503, 510 (1981)). In
such cases, a remand to the prosecutor may be appropriate so she or he may
rightly reconsider the application. Dalglish, 86 N.J. at 509-10.
B.
N.J.S.A. 2C:35-7(a) criminalizes “distributing, dispensing or possessing
with intent to distribute a controlled dangerous substance . . . within 1,000 feet
of . . . school property.” The statute is part of the Comprehensive Drug
Reform Act of 1987 (CDRA), which “was designed to create a coordinated
strategy to combat illegal drug use in New Jersey.” Caliguiri, 158 N.J. at 37
(citing W. Cary Edwards, An Overview of the Comprehensive Drug Reform
Act of 1987, 13 Seton Hall Legis. J. 5, 5 (1989)). Although violators of
N.J.S.A. 2C:35-7(a) are guilty of a third-degree crime -- which usually carries
12
a presumption of non-incarceration for first-time offenders, see N.J.S.A.
2C:44-1(e) -- N.J.S.A. 2C:35-7(a) prescribes a mandatory-minimum sentence
of one year of imprisonment for offenders caught possessing less than one
ounce of marijuana and three years of imprisonment in all other cases. The
severity of the penalty structure reflects the CDRA’s policy “to afford special
protection to children from the perils of drug trafficking, to ensure that all
schools and areas adjacent to schools are kept free from drug distribution
activities, and to provide especially stern punishment for those drug offenders
who operate on or near schools.” N.J.S.A. 2C:35-1.1(c).
In Baynes, we recognized that “[t]he penalty structure for [violations of
N.J.S.A. 2C:35-7] [wa]s similar to that for second-degree offenses for which
admission to PTI is presumptively unavailable.” 148 N.J. at 449. And , in
Caliguiri, we found the “especially stern punishments” for N.J.S.A. 2C:35-7
offenders, “[i]n light of the general tenor of the CDRA and the goals of the PTI
Guidelines,” countenanced allowing prosecutors to apply the presumption
against PTI to second-degree offenders. 158 N.J. at 43.
But our decision then was based on a sentencing structure that has since
evolved. In 2009, the Legislature altered N.J.S.A. 2C:35-7 by enacting a new
subsection (b). L. 2009, c. 192, § 1. Even though the mandatory minimums
were maintained, N.J.S.A. 2C:35-7(b) now authorizes courts to “waive or
13
reduce the minimum term of parole ineligibility required under subsection a.,”
or to “place the defendant on probation pursuant to paragraph (2) of subsection
b.” Before waiving or reducing the period of parole ineligibility, courts must
consider four enumerated factors:
1. The extent and seriousness of the defendant’s criminal history,
N.J.S.A. 2C:35-7(b)(1)(a);
2. The proximity to school property and “the reasonable likelihood of
exposing children to drug-related activities,” id. § 7(b)(1)(b);
3. “[W]hether school was in session at the time of the offense,” id. §
7(b)(1)(c); and
4. “[W]hether children were present at or in the immediate vicinity” of
the offense, id. § 7(b)(1)(d).
N.J.S.A. 2C:35-7(b)(2) bars courts from waiving or reducing the minimum
term of imprisonment, or imposing probation, if the offense occurred while on
school property or involved the threat or use of violence or a firearm. N.J.S.A.
2C:35-7(b)(2)(a)-(b).
Caliguiri’s determination that the presumption against PTI for first- and
second-degree offenses should encompass third-degree school zone offenses,
although well-reasoned at the time, is no longer consistent with the
Legislature’s intent. Based on the changed statutory language and the
14
Legislature’s clear intent in amending N.J.S.A. 2C:35-7, we hold the
presumption against PTI for first- and second-degree offenders can no longer
be applied to N.J.S.A. 2C:35-7(a) offenders. Because the prosecutor relied, in
part, on the presumption against PTI for second-degree offenses, we believe it
appropriate to remand defendant’s application to the prosecutor to reconsider
defendant’s application. We disturb no other portion of Caliguiri.
IV.
Additionally, we find inapplicable the presumption against PTI for the
“sale or dispensing” of a Schedule I or II narcotic, as it was set forth in
Guideline 3(i). N.J.S.A. 2C:35-7(a) uses the terms “distribute” and “dispense”
but does not use the term “sale.”
A “sale” is “[t]he transfer of property or title for a price.” Black’s Law
Dictionary 1454 (9th ed. 2009). Whereas “distribute” is broader and can mean
“[t]o apportion,” “divide among several,” “spread out,” or “disperse.” Id. at
543. As the Appellate Division noted in Coursey, “Guideline 3(i) does not
track the language of N.J.S.A. 2C:35-5(a)(1), because it only refers to ‘sale,’
which is a subset of ‘distribute,’ and it does not list possession with intent.”
445 N.J. Super. at 511 n.1. The Coursey panel concluded that “possession
with intent to distribute is not technically a sale, nor is it ‘dispensing’ as
defined in N.J.S.A. 24:21-2 (defining to ‘dispense’ as to deliver a CDS
15
‘subject by or pursuant to the lawful order of a practitioner’).” Id. at 510-11 &
n.1.
Defendant was not charged with selling or dispensing narcotics because
there was no evidence that he sold or dispensed narcotics. Imputing a
presumption against PTI for a “sale” to defendant, who was charged with
“possession with intent to distribute,” was improper.
V.
The record before us makes clear that the prosecutor faithfully
considered the factors found in N.J.S.A. 2C:43-12(e)(1) to (17), finding
several militated against acceptance of defendant’s application for PTI.
Nevertheless, because the prosecutor considered two inapplicable
presumptions found in then-Guideline 3(i), the decision to deny defendant’s
application must be reevaluated. We reverse the judgment of the Appellate
Division and remand to the prosecutor for a fresh review of defendant’s
application and, if need be, to the trial court for appropriate action following
the prosecutor’s review.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE
TIMPONE’S opinion.
16