STATE OF NEW JERSEY VS. DAVONNE HORTON(15-07-1006, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4462-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVONNE HORTON,
Defendant-Appellant.
_________________________________________
Argued July 6, 2017 – Decided July 18, 2017
Before Judges Yannotti and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
15-07-1006.
Michael Denny, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Mr. Denny, of counsel and on the brief).
Frances Tapia Mateo, Assistant Prosecutor,
argued the cause for respondent (Esther
Suarez, Hudson County Prosecutor, attorney;
Ms. Mateo, on the brief).
PER CURIAM
Defendant pled guilty to aggravated assault, contrary to
N.J.S.A. 2C:12-1(b)(7), causing significant bodily injury, and the
trial court sentenced defendant to three years of probation.
Defendant appeals from the judgment of conviction dated May 17,
2016, and argues that the trial court erred by affirming the
prosecutor's denial of his application for admission to pre-trial
intervention (PTI). We affirm.
A Hudson County grand jury charged defendant with first-
degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree
aggravated assault, causing serious bodily injury, N.J.S.A. 2C:12-
1(b)(1) (count two); third-degree burglary, N.J.S.A. 2C:18-2
(count three); and fourth-degree kidnapping, N.J.S.A. 2C:13-1(b)
(count four). On December 3, 2015, defendant pled guilty to count
two, which was amended to third-degree aggravated assault,
attempting to cause significant bodily injury, N.J.S.A. 2C:12-
1(b)(7). The State agreed to recommend a term of non-custodial
probation and dismissal of the other charges.
At the plea hearing, defendant admitted that on December 22,
2014, he punched J.I. with the intent to cause him significant
bodily injury. Defense counsel asked the court to allow defendant
to apply for admission to PTI as part of his presentence interview.
The judge agreed that defendant could submit a PTI application.
The judge stated, however, there was "no guarantee" he would be
accepted into the program.
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Thereafter, defendant submitted an application to the
prosecutor for admission to PTI. By letter dated January 11, 2016,
the Assistant Manager of the Criminal Division, Hudson County,
advised she was recommending denial of defendant's application.
On January 26, 2016, Assistant Prosecutor Thomas J. Carroll wrote
to the Assistant Manager of the Criminal Division and stated that
her recommendation was accepted. Carroll sent a copy of his letter
to the court and to defendant's attorney.
In his letter, Carroll noted that defendant had been charged
with multiple first- and second-degree offenses of a violent and
assaultive nature, making him presumptively ineligible for
admission to PTI. Carroll stated that there was nothing in
defendant's background or character that was "unusual" or
"extraordinary," which would overcome the presumption against his
admission to PTI.
Defendant appealed the prosecutor's determination to the
trial court, arguing that the prosecutor erred by considering
certain factors when deciding whether he should be admitted to
PTI. On March 21, 2016, the judge heard oral arguments on the
appeal. The judge remanded the matter to the prosecutor's office
to clarify whether in denying defendant's application, the State
had considered defendant's inability to pay court-imposed fines,
his dismissed contacts with the criminal justice system, and his
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admitted use of marijuana. The judge asked the prosecutor to
determine if these factors were not considered, whether the State
still took the position that defendant should not be admitted to
PTI.
On March 30, 2015, Carroll wrote to the judge and stated that
in rejecting defendants' application for admission to PTI, the
State had not given any weight to defendant's ability or inability
to pay court-imposed fines, his prior municipal court history, or
his admitted use of marijuana. Carroll also stated that admitting
defendant to PTI, after he entered a valid guilty plea, would be
inconsistent with the PTI guidelines and relevant case law.
The judge considered the matter again on April 29, 2016.
After hearing oral arguments, the judge placed her decision on the
record. The judge noted that under a recent amendment to the PTI
statute, a defendant could plead guilty to a second-degree offense
and still be admitted to PTI.
The judge asked the assistant prosecutor if defendant had
been charged with a third-degree offense, whether the State would
still deny him admission to PTI. The assistant prosecutor replied
that based on the nature of the offense, which was violent and
assaultive, the State would deny defendant's application. The
judge then ruled that the prosecutor's determination was not a
patent and gross abuse of discretion.
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The judge sentenced defendant on count two to three years of
probation and dismissed the other counts of the indictment. The
judge imposed fees and penalties and ordered defendant not to have
any contact with the victim or the victim's family. The judge
stated that if defendant complied with all of the conditions of
probation, he could apply to terminate probation after one and
one-half years. The judge entered a judgment of conviction dated
May 17, 2016. This appeal followed.
On appeal, defendant raises the following single point:
POINT I
BECAUSE THE PROSECUTOR AND PTI DIRECTOR
CONSIDERED INAPPROPRIATE FACTORS, THEIR
REFUSALS TO ALLOW DEFENDANT TO ENROLL IN PTI
EACH CONSTITUTE A PATENT AND GROSS ABUSE OF
DISCRETION[.]
"PTI is essentially an extension of the [prosecutor's]
charging decision, therefore the decision to grant or deny PTI is
a 'quintessentially prosecutorial function.'" State v. Roseman,
221 N.J. 611, 624 (2015) (quoting State v. Wallace, 146 N.J. 576,
582 (1996)). Accordingly, the prosecutor's decision to grant or
deny a defendant's application for PTI "is entitled to a great
deal of deference." Ibid. (citing State v. Leonardis, 73 N.J. 360,
381 (1977)).
A trial court may only reverse a prosecutor's PTI decision
"when the circumstances 'clearly and convincingly establish that
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the prosecutor's refusal to sanction admission to the program was
based on a patent and gross abuse of . . . discretion.'" Id. at
624-25 (quoting Wallace, supra, 146 N.J. at 582). The denial of a
defendant's PTI application is a patent and gross abuse of
discretion if the prosecutor failed to consider all relevant
factors, the prosecutor based the decision on irrelevant or
inappropriate factors, or the decision constitutes "a clear error
of judgment." Id. at 627 (quoting State v. Nwobu, 139 N.J. 236,
247 (1995)).
Defendant argues that the prosecutor's decision to deny his
application for admission to PTI was a patent and gross abuse of
discretion because it was based upon unproven facts and inferences
of guilt, which are not supported by the record. Defendant asserts
that the prosecutor based his decision on the victim's version of
the incident, as recounted in the pre-sentence report, rather than
on the facts he admitted to at the plea hearing.
Admission to PTI is governed by N.J.S.A. 2C:43-12(e), which
sets forth seventeen factors the prosecutor should consider in
determining whether a defendant should be diverted to PTI. The
statutory factors include "the nature of the offense," "the facts
of the case," and whether the crime charged "is of an assaultive
or violent nature[.]" N.J.S.A. 2C:43-12(e)(1), (2), and (10).
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Admission to PTI is also governed by Rule 3:28 and the
guidelines adopted by the Supreme Court. Guideline 3 requires the
prosecutor to consider the statutory criteria in N.J.S.A. 2C:43-
12(e) and other relevant circumstances, including the nature of
the offense. Pressler & Verniero, Current N.J. Court Rules,
Guideline 3(i) on R. 3:28, at 1235 (2017). There is a presumption
against admitting "defendants who have committed certain
categories of offenses" into PTI. State v. K.S., 220 N.J. 190, 198
(2015) (citing State v. Baynes, 148 N.J. 434, 442 (1997)).
A person who has deliberately committed a crime of violence
or threatened violence against another person "should generally"
not be admitted to PTI. Ibid. (citing Pressler & Verniero, Current
N.J. Court Rules, Guideline 3(i) on R. 3:28, at 1169 (2015)). A
defendant can overcome the presumption against admission if the
defendant shows "compelling reasons" for admission to PTI. Ibid.
(citing Pressler & Verniero, supra, Guideline 3(i) on R. 3:28, at
1169 (2015)).
In count one, defendant was charged with first-degree
robbery, contrary to N.J.S.A. 2C:15-1. The indictment alleged that
during the commission of a theft, defendant inflicted serious
bodily injury on the victim, J.I. In count two, defendant was
charged with second-degree aggravated assault, contrary to
N.J.S.A. 2C:12-1(b)(1). The indictment alleged that defendant
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purposely attempted to cause serious bodily injury to J.I.
Defendant also was charged in count three with third-degree
burglary, contrary to N.J.S.A. 2C:18-2; and in count four with
fourth-degree kidnapping, contrary to N.J.S.A. 2C:13-1(b).
As we noted previously, in December 2015, defendant pled
guilty to count two, which was amended to charge third-degree
aggravated assault, attempting to cause significant bodily injury,
contrary to N.J.S.A. 2C:12-1(b)(7). The State agreed to dismiss
the other charges.
It is well established that when a prosecutor and PTI program
director consider a PTI application, they "may not infer guilt
from the sole fact that a defendant was charged, where the charges
were dismissed." K.S., supra, 220 N.J. at 199 (citing State v.
Brooks, 175 N.J. 215, 229 (2002)). In this case, however, the
prosecutor properly considered the original charges in counts one,
three, and four, because when the prosecutor denied defendant's
PTI application, those charges had not yet been dismissed.
Indeed, the charges were not formally dismissed until after
the court sentenced defendant and entered the judgment of
conviction. As noted, in count one, defendant was charged with
committing a crime of violence against another person. In deciding
whether defendant should be admitted to PTI, the prosecutor did
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not err by considering the facts and circumstances of that offense,
which were developed during the investigation.
Even if the prosecutor was limited to considering only the
amended charge to count two, defendant's admission at the plea
hearing that he punched J.I. with the intent to cause him
significant bodily injury was sufficient to establish that he
committed a crime of violence against another person. Based on
that admission, a presumption arose against his admission to PTI.
Defendant did not provide compelling reasons to overcome the
presumption. We therefore conclude that the trial court did not
err by finding that the prosecutor's decision to deny defendant's
application was not a patent and gross abuse of discretion.
We have considered defendant's remaining arguments and
conclude that they are without sufficient merit to warrant
discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.
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