STATE OF NEW JERSEY VS. DAVON M. JOHNSON(15-01-0055, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-0625-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVON M. JOHNSON,
Defendant-Appellant.
_____________________________
Submitted May 2, 2017 – Decided November 2, 2017
Before Judges Messano and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 15-01-0055.
Joseph E. Krakora, Public Defender, attorney
for appellant (Peter T. Blum, Assistant Deputy
Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Kayla
Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from the denial of his application for
admission into the Pretrial Intervention Program (PTI) following
his arrest for possession of one hundred fifty envelopes of heroin
in a school zone. We affirm.
I.
Defendant, a twenty-one year old with no criminal record, was
stopped by Newark police officers on May 18, 2014, for failing to
stop at a red light. According to the police, when defendant
reached into the glove compartment to retrieve his credentials,
three bricks of heroin fell to the floor, containing one hundred
fifty glassine envelopes of heroin. He was charged with three
third-degree offenses: possession of heroin, N.J.S.A. 2C:35-10(a);
possession of heroin with intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and (b)(3); and possession of heroin with intent to
distribute in a school zone, N.J.S.A. 2C:35-7.
Defendant applied for admission to PTI in July 2014. His
counsel filed a letter providing a Statement of Compelling Reasons
in support of his application. The letter noted defendant was a
life-long Newark resident who graduated from Malcolm X Shabazz
High School three years earlier. He had been active in varsity
sports and was a full-time student at Bloomfield College, studying
accounting. Defendant also worked at a number of different jobs
and spent time caring for his younger sister, nieces and nephews.
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Citing the purposes of PTI, defense counsel submitted that PTI
would be a sufficient deterrent to future criminal conduct, that
any indictable conviction would cause substantial hardship to
defendant and his family, jeopardizing his ability to complete
college and obtain employment in accounting. Counsel also noted
the following mitigating factors: defendant's character and
attitude, his lack of any prior delinquency or criminal activity,
the likelihood he would respond affirmatively to probationary
treatment, the role his youthfulness played in the offense and
that the offense was the result of circumstances unlikely to recur.
Following review of defendant's application and his counsel's
Statement Of Compelling Reasons, the Probation Office recommended
against his admission to PTI, setting forth the following reasons:
You were arrested by Newark Police in
possession of 150 glassine envelopes of
heroin. You reported no history of substance
abuse or drug dependence. Based 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, your application for admittance into
the PTI program is denied.
In a seven-page letter dated November 7, 2014, the State
rejected defendant's PTI application. The letter reviewed
defendant's personal circumstances, including his age, residence,
education and work history, his denial of drug use and absence of
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a criminal record. The State also reviewed the details of
defendant's offense.
Turning to an analysis of the aggravating factors it deemed
relevant to defendant's application, the State cited and discussed
the following factors: the nature of the offense, N.J.S.A. 2C:43-
12(e)(1); the facts of the case, N.J.S.A. 2C:43-12(e)(2); the
needs and interests of the victim and society, N.J.S.A. 2C:43-
12(e)(7); whether or not the crime is of such a nature that the
value of supervisory treatment would be outweighed by the public
need for prosecution, N.J.S.A. 2C:43-12(e)(14); and whether or not
the harm done to society by abandoning criminal prosecution would
outweigh the benefits to society from channeling an offender into
a supervisory treatment program, N.J.S.A. 2C:43-12(e)(17). In
discussing the nature of the offense, the State noted defendant
was presumptively ineligible for PTI because he was charged with
a school zone offense.
The State also identified mitigating factors relevant to its
consideration of defendant's potential for rehabilitation: the
motivation and age of defendant, N.J.S.A. 2C:43-12(e)(3);
defendant had "no prior criminal record of any kind," N.J.S.A.
2C:43-12(e)(9); the crime did not involve violence or the threat
of violence, N.J.S.A. 2C:43-12(e)(10); the lack of any evidence
"suggest[ing] that defendant was involved with gangs or organized
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crime," N.J.S.A. 2C:43-12(e)(13); and, because there were no co-
defendants, defendant's participation in PTI would not adversely
affect their prosecution, N.J.S.A. 2C:43-12(e)(16). The State
determined the aggravating factors it identified outweighed the
mitigating factors and militated against defendant's admission
into PTI.
The State also addressed defendant's Statement of Compelling
Reasons and arguments for admission. Among the reasons articulated
in response, the State noted it "relied heavily" on the fact that,
although defendant "is admittedly not a heroin user," he possessed
"a significant amount of heroin" that was "conveniently packaged
into three separate bricks" for distribution. The State also
repeated that defendant was presumptively ineligible for PTI,
stating, "Defendant's crimes not only include a school zone
offense, but highlight the fact that he is charged with a heroin
distribution offense despite not being drug dependent himself.
Guideline 3(i) of R. 3:28." The State concluded defendant had
failed to present sufficient compelling reasons to rebut the
presumption against his admission.
An Essex County grand jury returned an indictment against
defendant in January 2015, charging him with the same offenses
filed against him at the time of his arrest.
5 A-0625-15T1
On March 23, 2015, defendant filed an appeal with the Law
Division from the State's rejection of his PTI application.
Because "[a]n appeal by the defendant shall be made . . . within
ten days after the rejection," R. 3:28(h), the appeal was untimely.
The submission was also incomplete because three of the letter
brief's seven pages were not included in the filing. In response,
the State argued defendant's appeal was procedurally barred
because it was untimely and further, that it should be denied on
the merits.
The trial judge acknowledged the State's procedural argument
but did not limit his reasons for denying the appeal to that basis.
He stated, "[E]ven assuming that this appeal was not procedurally
barred . . . I nonetheless find that the defendant's motion fails
on the merits" and then proceeded to state the reasons for his
ruling. The trial judge found the prosecutor had evaluated and
weighed all relevant aggravating and mitigating factors, provided
a synopsis of her reasoning and supporting caselaw regarding each
factor and that the defendant had failed to demonstrate the
rejection amounted to a clear error in judgment. Citing the
Supreme Court's holding in State v. Caliguiri, 158 N.J. 25, 43
(1999) ("[W]e hold that prosecutors may treat N.J.S.A. 2C:35-7 as
equivalent to a second-degree offense and consider PTI
presumptively unavailable."), the trial judge noted the
6 A-0625-15T1
presumption against admission was only overcome by a demonstration
of compelling reasons, which defendant had failed to show.
Thereafter, defendant entered a guilty plea to one count of
possession of heroin pursuant to a plea agreement and was sentenced
to two years' probation.
Defendant presents the following issues for our
consideration in his appeal:
POINT I
A REMAND SHOULD OCCUR BECAUSE THE
TRIAL COURT DEPRIVED JOHNSON OF DUE
PROCESS IN DECIDING THE PTI APPEAL
BASED ON A DEFENSE BRIEF THAT WAS
MISSING NEARLY HALF ITS PAGES. U.S.
CONST. AMEND. XIV; N.J. CONST. ART.
I, PARA. 1.
POINT II
THE COURT'S REFUSAL TO EXCUSE THE
LATENESS OF THE PTI APPEAL WAS
IMPROPER BECAUSE THE PAGES MISSING
FROM THE DEFENSE BRIEF DEMONSTRATE
THAT (A) GOOD CAUSE EXISTED FOR THE
COURT TO ENLARGE THE TIME AND,
ALTERNATIVELY, (B) THE OMISSION OF
THE PAGES WAS INEFFECTIVE
ASSISTANCE OF COUNSEL. U.S. CONST.
AMENDS. VI, XIV; N.J. CONST. ART. I,
PARAS. 1, 10.
A. GOOD CAUSE EXISTED TO
ENLARGE THE TEN-DAY TIME LIMIT TO
FILE A PTI APPEAL WHEN JOHNSON'S
COUNSEL DID NOT LEARN OF THE PTI
REJECTION FOR "MONTHS."
7 A-0625-15T1
B. ALTERNATIVELY, THE
UNPROFESSIONAL OMISSION OF THE
PAGES WAS INEFFECTIVE ASSISTANCE OF
COUNSEL BECAUSE A REASONABLE
PROBABILITY EXISTS THAT THE COURT
BELOW WOULD NOT HAVE HELD THE APPEAL
TIME-BARRED HAD IT SEEN THE PAGES.
POINT III
A REMAND SHOULD OCCUR BECAUSE THE
PROSECUTOR IMPROPERLY DENIED PTI BY
APPLYING INAPPLICABLE PRESUMPTIONS.
A. THE PRESUMPTION AGAINST
PTI FOR SECOND-DEGREE OFFENSES
SHOULD NOT HAVE BEEN APPLIED TO THE
THIRD-DEGREE OFFENSE OF POSSESSING
DRUGS WITH INTENT TO DISTRIBUTE IN
A SCHOOL ZONE.
B. EVEN IF THE SECOND-
DEGREE-OFFENSE PRESUMPTION WAS
THEORETICALLY APPLICABLE TO SCHOOL
ZONE OFFENSES, THE PROSECUTOR
SHOULD NOT HAVE APPLIED IT TO
JOHNSON, WHO WAS SIMPLY DRIVING
THROUGH WHEN THE POLICE STOPPED HIM
AND FOUND HEROIN.
C. THE PRESUMPTION AGAINST
PTI FOR THE "SALE" OF A NARCOTIC
SHOULD NOT HAVE BEEN APPLIED TO
JOHNSON BECAUSE HE WAS CHARGED WITH
THE INTENT TO DISTRIBUTE, NOT AN
ACTUAL SALE.
II.
In Point I, defendant argues the trial court deprived him of
due process by deciding his motion based on a brief that was
8 A-0625-15T1
missing pages and without hearing oral argument on the motion. We
disagree.
As a general rule, we would expect there to be oral argument
on such a motion. Defendant has not represented that oral argument
was requested, however. Moreover, counsel was present on the
return date of the motion and there is nothing in the transcript
that reflects a request to be heard or the trial court's denial
of such a request.
The letter brief that was submitted consisted of four pages,
numbered 1, 5, 6 and 7. We have been provided with the missing
pages, 2, 3 and 4 and compared their contents to the facts and
arguments presented to the trial court in the letter brief and
from other sources.
Page 2 begins with the completion of the procedural history
and proceeds to discuss defendant's personal circumstances, noting
his gainful employment, college studies, athletic talent, and
involvement with his nieces and nephews. The page also includes
a number of expressions of defense counsel's personal belief that
defendant is a "a very worthy candidate for the PTI program."
Pages 3 and 4 are the first two pages of defendant's legal
argument. Approximately one-half of page 3 is a block quote from
Guideline 1, Guidelines for Operation of Pretrial Intervention in
New Jersey (Guidelines), Pressler & Verniero, Current N.J. Court
9 A-0625-15T1
Rules, following R. 3:28 at 1235 (2017), setting forth the purposes
of PTI. Approximately one-third of page 4 is a block quote from
Guideline 2. In the remaining text, counsel addresses (a) and (b)
of Guideline 1. He argues that, if defendant "can address whatever
problem that caused this aberrational behavior," services provided
to him could reasonably be expected to deter future criminal
behavior. Reference is made to his employment and college
matriculation and the negative consequences a criminal conviction
would have to him personally and to his job prospects. The letter
brief concedes defendant's "application on its face might not
justify his admission into the PTI program," and presents a
conclusory statement that upon appropriate consideration of "all
of the compelling reasons previously submitted . . . it would
appear that . . . [defendant] meets the burden that is imposed by"
Guideline 2.
Our review of the omitted pages within the context of the
submissions to the court and the trial court's detailed findings
of fact reveals no material fact or argument that was not before
the trial court. We therefore discern no prejudice to defendant
arising from the omission of pages 2, 3 and 4.
III.
In Point II, defendant argues the trial court erroneously
"refus[ed] to excuse the lateness of" his PTI appeal. The record
10 A-0625-15T1
fails to support this contention. Although the trial judge
acknowledged that defendant's appeal from the PTI rejection was
untimely, he addressed the merits of defendant's appeal and stated
reasons for his denial. As a result, the argument presented in
Point II regarding "good cause" to enlarge the time in which to
file an appeal lacks any merit. R. 2:11-3(e)(2).
Defendant argues in the alternative that counsel was
ineffective in submitting a brief that was missing pages.
Generally, ineffective assistance of counsel claims are not
entertained on direct appeal "because such claims involve
allegations and evidence that lie outside the trial record." State
v. Preciose, 129 N.J. 451, 460 (1992). In this case, however, the
allegations and evidence are fully revealed by the record and it
is unnecessary to resort to matters outside the record to decide
this issue.
To prevail on a claim of ineffective assistance of counsel,
defendant must meet the two-prong test of establishing both that:
(l) counsel's performance was deficient and he made errors that
were so egregious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment to the United States
Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional
11 A-0625-15T1
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052,
2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l05
N.J. 42, 52 (l987).
Defendant contends the trial court "improperly decided" his
PTI appeal based upon an incomplete version of the defense brief
that "contained no excuse" for the untimely filing of the appeal
and that as a result, the trial court held the appeal was
procedurally barred as untimely. Even if we assume counsel's
performance in submitting an incomplete letter brief satisfied the
first Strickland prong, defendant cannot satisfy the second prong
because the trial judge addressed the merits of his appeal and
explicitly stated he found "the defendant's motion fails on the
merits." This argument therefore lacks merit.
IV.
Finally, we turn to the merits of defendant's challenge to
the rejection of his PTI application.
A.
The prosecutor's decision to accept or reject a defendant's
PTI application is entitled to a great deal of deference, State
v. Roseman, 221 N.J. 611, 624-25 (2015); State v. Leonardis, 73
N.J. 360, 381 (1977); and may be overruled only when the
circumstances "'clearly and convincingly establish that the
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prosecutor's refusal to sanction admission into the program was
based on a patent and gross abuse of . . . discretion.'" Roseman,
supra, 221 N.J. at 624-25 (citation omitted); see State v. Nwobu,
139 N.J. 236, 254 (1995) ("The question is not whether we agree
or disagree with the prosecutor's decision, but whether the
prosecutor's decision could not have been reasonably made upon
weighing the relevant factors.").
In rendering the decision, the prosecutor must "make an
individualized assessment of the defendant" and consider whether
the defendant is amenable to rehabilitation. Roseman, supra, 221
N.J. at 621-22 (citation omitted). The prosecutor is also
specifically required to consider the factors listed in N.J.S.A.
2C:43-12(e), State v. Lee, 437 N.J. Super. 555, 562 (App. Div.
2014). When the prosecutor rejects a PTI application, N.J.S.A.
2C:43-12(f) requires the prosecutor to "precisely state his
findings and conclusion which shall include the facts upon which
the application is based and the reasons offered for the denial."
See also State v. K.S., 220 N.J. 190, 198-99 (2014).
"Any defendant charged with crime is eligible for enrollment
in a PTI program, but the nature of the offense is a factor to be
considered in reviewing the application." Guideline 3(i). When
the PTI Guidelines establish a rebuttable presumption against
admission based on the nature of the offense, the defendant must
13 A-0625-15T1
present "compelling reasons justifying the applicant's admission
and establishing that a decision against enrollment would be
arbitrary and unreasonable." Ibid. This means he "must
demonstrate something extraordinary or unusual, something
'idiosyncratic,' in his . . . background." Nwobu, supra, 139 N.J.
at 252 (quoting State v. Jabbour, 118 N.J. 1, 7 (1990)).
B.
As we have noted, the State's letter rejecting defendant's
PTI application addressed the relevant statutory factors, made
specific findings as to relevant aggravating and mitigating
factors, discussed defendant's arguments and clearly stated the
reasons for denying his application. Addressing the nature of the
offense, N.J.S.A. 2C:43-12(e)(1), the rejection letter stated
defendant was presumptively ineligible due to the nature of the
charges against him, citing Calguiri, supra, 158 N.J. at 43. The
State also cited Guideline 3(i) as creating a presumption against
admission for defendants charged with "sale or dispensing . . .
of Schedule I or II narcotic drugs . . . by persons not drug
dependent."
In Point III, defendant argues these presumptions against
admission to PTI were inapplicable to his case and that the
prosecutor's reliance upon them requires a remand. Defendant did
not present this argument to the trial court. Instead, he accepted
14 A-0625-15T1
the premise that a presumption against admission applied and argued
he had presented sufficient compelling reasons to warrant his
admission to PTI. Because his argument that the prosecutor erred
in applying these presumptions is presented for the first time on
appeal, we need not address it. See State v. Robinson, 200 N.J.
1, 19-20 (2009). However, we note that, for the following reasons,
we find the arguments unpersuasive.
In Caliguiri, supra, 158 N.J. 28, 32 (1999), the prosecutor
refused a PTI application "solely" because the applicant was
charged with possession of marijuana with intent to distribute in
a school zone, N.J.S.A. 2C:35-7. The Court rejected the
prosecutor's premise, but stated, "[a]lthough N.J.S.A. 2C:35-7
offenders are not categorically ineligible for PTI, there is a
presumption against diversion." Id. at 42.
Defendant argues the reasoning underlying this pronouncement
has been undermined by subsequent amendments to N.J.S.A. 2C:35-7,
which include the availability of non-custodial sentences. No
case is cited, however, that supports his argument the Court's
instruction in Caliguiri is no longer viable. To the contrary,
as recently as last year, we recognized Caliguiri as providing
guidance on how to interpret Guideline 3(i). See State v. Coursey,
445 N.J. Super. 506, 511 (App. Div. 2016).
15 A-0625-15T1
Defendant also argues it was error and an abuse of discretion
to apply this presumption to him because he was neither engaged
in nor charged with a sale or distribution of heroin. The
defendant in Caliguiri was charged with possession of marijuana
with intent to distribute in a school zone under circumstances
that, like here, did not entail a drug transaction. The fact the
Supreme Court nonetheless found the presumption against PTI
eligibility applied to those facts renders defendant's argument
devoid of merit.
We therefore conclude defendant's arguments challenging the
application of the presumption against PTI ineligibility lack
merit. Although he has not challenged the decision that he failed
to present compelling reasons to override that presumption, we are
also satisfied the reasons presented fell short of the "compelling"
standard. Finally, we also conclude the prosecutor's decision was
reasonably made upon a weighing of appropriate factors and should
not be disturbed.
Affirmed.
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