STATE OF NEW JERSEY VS. MICHAEL A. WYTANIS, JR. (16-04-0730, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-4474-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL A. WYTANIS, JR.,
Defendant-Appellant.
____________________________________
Argued October 11, 2018 – Decided October 31, 2018
Before Judges Nugent and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 16-04-0730.
Alan L. Zegas argued the cause for appellant (Law
Offices of Alan L. Zegas, attorneys; Alan L. Zegas and
Joshua M. Nahum, on the briefs).
Cheryl L. Hammel, Assistant Prosecutor, argued the
cause for respondent (Bradley D. Billhimer, Ocean
County Prosecutor, attorney; Samuel J. Marzarella,
Chief Appellate Attorney, of counsel; Cheryl L.
Hammel, on the brief).
PER CURIAM
Defendant Michael A. Wytanis, Jr. appeals from a May 9, 2017 judgment
finding him ineligible for admission to pre-trial intervention (PTI). We affirm.
The following facts are taken from the record. In 2005, defendant's
driver's license was suspended for a period of ten years due to multiple DUI
convictions. In 2012, in an effort to circumvent the suspension, defendant
affixed his picture to his deceased brother's identification in order to obtain a
New Jersey driver's license. Facial recognition software revealed the
discrepancy. As a result, a complaint-summons charged defendant with
knowingly exhibiting, displaying, or uttering personal identifying information
of another to obtain a New Jersey digital driver's license, N.J.S.A. 2C:21 -
17.2(a); knowingly uttering a writing of another without authorization, which he
knew to be forged and which is or purports to be a part of an issue of money,
securities, postage or revenue stamps, or other instruments, certificates or
licenses issued with the purpose to defraud or injure, N.J.S.A. 2C:21-1(a)(3);
and tampering with public records or information with the purpose to defraud or
injure the New Jersey Motor Vehicle Commission, N.J.S.A. 2C:28-7(a)(1).
Relevant to this appeal, the first charge is a second-degree offense.
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Defendant completed an application for admission to the PTI program.
The Ocean County PTI director denied the application. The rejection letter
noted defendant had
reported [four] previous DUI's: [September] 1987,
[April] 1997, [July] 1999 and [July] 2005. [Defendant]
reportedly "tried valium [five] or [six] times" from
1978-1979, used cocaine on [five] or [six] occasions
between 1983-1985, smoked marijuana socially from
[his] teens until [February] 1990 and tried mescaline
"once in 1982 while in the Navy."
Additionally, the letter stated defendant indicated he sought treatment for his
marijuana use in 1985 and alcohol in 1999. The letter gave positive weight to
defendant's willingness to comply with the terms of PTI, but denied his
application "after full consideration of all relevant factors[.]"
The PTI rejection also noted defendant had received a conditional
discharge in a municipal court matter in 1988, related to a marijuana possession
charge. The conditional discharge stemmed from defendant's arrest following a
traffic stop, during which marijuana was discovered in the glove compartment
of his vehicle. The municipal court records from this traffic stop revealed
defendant was charged with several offenses, including marijuana possession,
but had received a conditional discharge.
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Defendant contended the conditional discharge erroneously appeared on
his record. He claimed he had no recollection of the disposition or appearing in
municipal court to answer the charge, and claimed he did not receive any
supervisory treatment as a result of the disposition. Defendant contended the
charge was dismissed without condition. Defendant sought post-conviction
relief in municipal court, which in turn vacated the conditional discharge. The
municipal court concluded "the court records documenting [the conditional
discharge] may have been entered in error."
Defendant informed the PTI director the conditional discharge had been
vacated by the municipal court. The PTI director indicated the vacated
discharge had no legal significance with respect to PTI eligibility, concluded
defendant had been previously diverted pursuant to Rule 3:23-3(g), and was
ineligible for PTI.
Defendant did not appeal the PTI determination. Instead, he pled guilty
to third-degree wrongful impersonation, N.J.S.A. 2C:21-17(a)(1). He did not
seek to withdraw his plea. Instead, at his sentencing, defendant requested the
judge reconsider his eligibility and admit him to PTI. Notwithstanding the
procedurally unique nature of defendant's motion, the sentencing judge
addressed it and found him ineligible for PTI because his guilty plea had not
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been vacated and he had previously received a conditional discharge. Defendant
was sentenced to one year of non-custodial probation, assessed a fine, and
required to complete ten hours of community service. This appeal followed.
Defendant raises the following arguments on appeal:
POINT ONE
THE COURT ERRED IN DISREGARDING THE
FINDINGS OF THE MUNICIPAL COURT THAT A
CONDITIONAL DISCHARGE HAD LIKELY NOT
OCCURRED.
POINT TWO
THE COURT ERRED IN FINDING THAT A
CONDITIONAL DISCHARGE WITHOUT ANY
SUPERVISORY TREATMENT IS AN ABSOLUTE
BAR TO ENTRY INTO PTI.
POINT THREE
THE COURT ERRED IN FINDING THAT A
VACATED ERRONEOUS CONDITIONAL
DISCHARGE IS AN ABSOLUTE BAR TO ENTRY
INTO PTI.
POINT FOUR
THE COURT ERRED BY FINDING THAT ENTRY
OF A GUILTY PLEA IS A BAR TO AN APPEAL OF
A PTI DENIAL.
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I.
The decision to admit a defendant to 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)). Therefore, the prosecutor's decision
to grant or deny a defendant's PTI application is entitled to great deference. Ibid.
(citing State v. Leonardis, 73 N.J. 360, 381 (1977)). A trial judge may overrule
a prosecutor's PTI determination "only when the circumstances 'clearly and
convincingly establish that the prosecutor's refusal to sanction admission into
the program was based on a patent and gross abuse of . . . discretion.'" Id. at
624-25 (alteration in original) (quoting Wallace, 146 N.J. at 582).
To establish a "patent and gross abuse of discretion," a defendant must
show the prosecutor's decision "(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" and "that the
prosecutorial error complained of will clearly subvert the goals underlying
[PTI]." Id. at 625 (quoting State v. Bender, 80 N.J. 84, 93 (1979)). The
prosecutorial decision must be "so wide of the mark sought to be accomplished
by PTI that fundamental fairness and justice require judicial intervention."
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Wallace, 146 N.J. at 582-83 (quoting State v. Ridgway, 208 N.J. Super. 118,
130 (Law Div. 1985)).
"Thus, the scope of review is severely limited." State v. Waters, 439 N.J.
Super. 215, 225 (App. Div. 2015) (quoting State v. Negran, 178 N.J. 73, 82
(2003)). "Reviewing courts must accord the prosecutor 'extreme deference.'"
Id. at 225-26 (quoting State v. Nwobu, 139 N.J. 236, 246 (1995)). "We must
apply the same standard as the trial court. Therefore, we review the [trial court's
ruling] of the prosecutor's decision de novo." Id. at 226.
II.
Defendant claims the sentencing judge erred because she disregarded the
municipal court findings, which vacated the conditional discharge. He argues
the municipal court's decision should be afforded greater deference because it
found defendant credible and "acknowledged the infirmity in the municipal
courts [sic] own records, and ultimately vacated the conditional discharge
because the 'court records documenting [the conditional discharge] may have
been entered in error.'"
"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.'" Roseman, 221 N.J. at 621 (quoting Nwobu,
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139 N.J. at 240). "[A]cceptance into PTI is dependent upon an initial
recommendation by the [c]riminal [d]ivision [m]anager and consent of the
prosecutor. The assessment of a defendant's suitability for PTI must be
conducted under the [g]uidelines for PTI provided in Rule 3:28, along with
consideration of factors listed in N.J.S.A. 2C:43-12(e)." Ibid. Absent evidence
to the contrary, a reviewing court should assume the prosecutor's office has
considered all relevant factors in reaching its PTI determination. Nwobu, 139
N.J. at 249 (citing State v. Dalglish, 86 N.J. 503, 509 (1981).
Additionally, N.J.S.A. 2C:43-12(g)(1) limits PTI eligibility for those
having previously received a conditional discharge pursuant to N.J.S.A.
2C:36A-1. Importantly, the statute contemplates an individual may only receive
supervisory treatment once. Ibid. "A defendant charged with a first or second
degree offense . . . should ordinarily not be considered for enrollment in a PTI
program except on joint application by the defendant and the prosecutor."
Pressler & Verniero, Current N.J. Court Rules, § 3:28-1, 1308-¶0.47 (2018) (e-
book). Notwithstanding this presumption, the guidelines establish the procedure
for review of the PTI application:
[I]n such cases, the applicant shall have the opportunity
to present to the criminal division manager, and through
the criminal division manager to the prosecutor, any
facts or materials demonstrating the applicant's
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amenability to the rehabilitative process, showing
compelling reasons justifying the applicant's admission
and establishing that a decision against enrollment
would be arbitrary and unreasonable.
[Ibid.]
Defendant does not challenge the denial of PTI on the basis of the N.J.S.A.
2C:43-12(e) factors. Instead, he argues the sentencing judge erred holding he
was ineligible for PTI because he never received supervisory treatment. We
disagree.
Contrary to defendant's argument, the sentencing judge was not required
to defer to the municipal court determination. Rather, the judge found the
vacation of the conditional discharge had no legal significance to defendant's
PTI eligibility "because the original grant of a conditional discharge in 1988
bars him from PTI regardless of whether the conditional discharge has been
wiped away by a 2016 [m]unicipal [c]ourt [o]rder twenty-seven years later."
The judge relied on our holding in State v. O'Brien, 418 N.J. Super. 428
(App. Div. 2011). There we reversed an order granting a defendant's admission
to PTI where the defendant had vacated the record of an earlier conditional
discharge. Id. at 430-31. We held "where an individual is placed into
supervisory treatment under the conditional discharge statute, N.J.S.A. 2C:36A-
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1, that person is prohibited from later entering into PTI, whether the conditional
discharge is later vacated or not." Id. at 438. We concluded
denying defendant admission into PTI, even though her
prior conditional discharge . . . had been vacated, is
consistent with the legislative intent to bar re-diversion
under New Jersey's diversionary programs. Defendant
has once benefited from a conditional discharge. She
was placed into supervisory treatment in 1990. For
twenty years, defendant's criminal record did not
disclose that she had been arrested for the disorderly
persons offense of possession of marijuana. N.J.S.A.
2C:36A-1(b). Defendant now seeks the benefit of PTI
as a result of her indictment for a drug offense, the very
type of offense for which she received the prior
conditional discharge. The goals underlying pretrial
intervention—to deter future criminal conduct and to
provide a one-time diversion from prosecution—are not
subverted by the prosecutor's decision. Moreover,
while it may be that, as a matter of law, defendant's
conditional discharge for possession of marijuana
"never happened," it does not follow that it never
happened as a matter of fact.
[Id. at 441.]
Here, relying on the holding in O'Brien, 418 N.J. Super. at 438, the judge
found
where an individual is placed into supervisory
treatment under the conditional discharge statute that
person is prohibited from later entering into PTI,
whether the conditional discharge is later vacated or
not. Simply stated, it is the fact that the individual
previously received supervisory treatment that prevents
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him or her from re-enrollment into another diversionary
program [under PTI].
The judge concluded defendant had received a conditional discharge in 1988,
and the fact it was later vacated "does not in any way negate the statutory
prohibition on having two diversionary dispositions." We have no reason to
second guess the judge's findings regarding the conditional discharge.
Regardless of defendant's claim he was never placed into supervisory treatment,
he nonetheless benefited from the conditional discharge for nearly three
decades.
Moreover, the PTI director's letter set forth defendant's history of
substance abuse, including four DUIs as part of the decision to deny him
admission to the program. Although the letter indicated the conditional
discharge as a reason for rejection, it was only one factor in the determination.
Also, defendant does not dispute he presented no evidence to rebut the
presumption of ineligibility for PTI on account of being charged with a second-
degree crime. Therefore, the sentencing judge did not abuse her discretion by
denying defendant admission to PTI.
III.
Lastly, defendant argues the judge erred when she cited his failure to
vacate the guilty plea as a reason to deny admission to PTI. Defendant cites
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State v. Moraes-Pena, 386 N.J. Super. 569, 578-80 (App. Div. 2006), to support
the claim "a defendant does not waive his rights to appeal a PTI denial by
entering a guilty plea."
Defendant's reliance on Moraes-Pena is misplaced. Although we held a
guilty plea is not a bar to an appeal of a PTI rejection, we noted the guidelines
required "the issue concerning enrollment into PTI shall be resolved before or
at the pretrial conference, and in any event, before a plea or verdict." Id. at 578
(citing Pressler & Verniero, Current N.J. Court Rules, Guideline 6, following R.
3:28 at 971 (2006)). Indeed, since our decision in Moraes-Pena, Rule 3:28-2
now expressly provides "[a]pplications for pretrial intervention shall be made at
the earliest possible opportunity, including before indictment, but in any event
no later than the Initial Case Disposition Conference, unless good cause is
shown or consent by the prosecutor is obtained." Additionally, Rule 3:28-6(d)
provides the denial of an application for admission in PTI remains appealable
from a judgment of conviction "notwithstanding that such judgment is entered
following a plea of guilty."
Defendant failed to appeal his conviction. Moraes-Pena requires no less.
The trial judge did not err by concluding accordingly.
Affirmed.
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