Opinion
DOCKET NO. A-5138-11T3
04-22-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN MCGUIRE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 10-02-0181.
Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Kevin McGuire pleaded guilty to unlawful possession of a weapon and was sentenced to five years of incarceration, with a one-year period of parole ineligibility. Defendant appeals from the judgment of conviction entered by the trial court. We affirm.
I.
Defendant was charged in Burlington County Indictment No. 10-02-0181 with second-degree unlawful possession of a weapon (handgun), contrary to N.J.S.A. 2C:39-5(b), and fourth-degree hindering his own prosecution, contrary to N.J.S.A. 2C:29-3(b)(1). Thereafter, he applied for admission to pre-trial intervention (PTI).
By letter dated April 29, 2010, the PTI director for the Burlington County Criminal Division informed defendant that his application was denied. The director reviewed the facts and circumstances of defendant's alleged offense and noted the following.
On November 21, 2009, defendant was involved in a motor vehicle accident on certain privately-owned property in Tabernacle Township. After exiting his vehicle with the assistance of the property owners' son and another juvenile, defendant was seen hanging a towel on a branch of a bush located on the property. The property owner reported that, while checking the property for damage, he found a weapon partially buried in the dirt and covered with leaves. Defendant was arrested and charged with the unlawful possession of a .40 caliber handgun, and with hindering his own apprehension.
The director wrote that defendant did not have any prior "contact with the law" and therefore he was a suitable candidate for PTI admission. The director stated, however, that the PTI guidelines bar admission to persons charged with a second-degree offense except upon a joint application by the defendant and the prosecutor's office. The director noted that the prosecutor had not joined defendant's application.
In addition, the director noted that it had been determined that, at the time of the motor vehicle accident, defendant had been under the influence of alcohol, and he was charged with operating a vehicle under the influence. The director also pointed out that defendant intentionally hid the weapon in order to avoid "further complications with the law."
The director stated that the weapon "could have easily fallen into the hands of a child and/or another individual resulting in even more" serious circumstances. The director said that any benefit defendant could derive from admission to PTI was outweighed by the serious nature of the offenses charged and the public's need for prosecution. The director concluded that defendant had not shown compelling reasons to justify his admission to PTI.
Defendant appealed the PTI director's determination to the trial court. The State opposed the appeal. In a letter dated June 25, 2010, the assistant prosecutor reviewed the facts of the charged offenses, as well as the determination of the PTI Director. The assistant prosecutor noted that, while the prosecutor had not separately denied defendant's application for PTI admission, the director's decision was appropriate and should be upheld.
The trial court considered defendant's appeal on July 19, 2010. The court found that the director and the prosecutor had considered the facts of the alleged offenses and other relevant factors in denying PTI admission. The court noted that the degree of the offenses had been considered but there was no blanket denial on that basis. The court determined that the denial of defendant's application for PTI admission was not arbitrary or an abuse of discretion.
Defendant then pleaded guilty to unlawful possession of a firearm. The State agreed to drop the other charge and recommend a sentence of five years of incarceration with a one-year period of parole ineligibility. At the plea hearing, defendant testified that on November 21, 2009, he was in possession of a .40 caliber handgun and he did not have a permit to carry the weapon. The court found that defendant entered into the plea agreement freely, knowingly and voluntarily. The court further found that defendant had provided a sufficient factual basis for his plea.
Defendant was sentenced on August 26, 2011. Defense counsel argued that defendant should be sentenced as a third-degree offender, with the one-year period of parole ineligibility otherwise required by the Graves Act, N.J.S.A. 2C:43-6; -6.2. However, the court found that, under the circumstances, it did not have discretion to depart from the prosecutor's recommended plea except to reject the plea outright. The court noted that defendant had not asked the court to set aside the plea agreement.
The court found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court also found mitigating factors seven, N.J.S.A. 2C:44-1(b)(7) (defendant has no history of prior delinquency or criminal activity); eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the result of circumstances unlikely to recur); and nine, N.J.S.A. 2C:44-1(b)(9) (character and attitude of defendant indicate that he is unlikely to commit another offense).
The court then weighed the aggravating factor and mitigating factors on a qualitative and quantitative basis and found that they were roughly in equipoise because aggravating factor nine had the most weight and balanced out the mitigating factors. The court said mitigating factors eight and nine were entitled to little weight.
The court sentenced defendant to the five-year term of incarceration and the one-year period of parole ineligibility, as provided in the plea agreement. The court imposed appropriate fines and penalties and dismissed count two of the indictment. The court entered the judgment of conviction dated August 26, 2011. This appeal followed.
Defendant raises the following arguments for our consideration:
POINT I
THE REJECTION OF [DEFENDANT'S] PTI APPLICATION WAS AN ABUSE OF DISCRETION AS THERE WAS A FAILURE TO CONSIDER ALL RELEVANT FACTORS AND CONSIDERATION OF INAPPROPRIATE FACTORS RESULTING IN AN ARBITRARY AND UNREASONABLE DECISION; THE PROSECUTOR'S REFUSAL TO ENGAGE IN CONSIDERATION OF THE APPLICATION WAS ALSO ARBITRARY AND UNREASONABLE AND ROSE TO THE LEVEL OF A CLEAR ERROR OF JUDGMENT THAT SUBVERTED THE GOALS OF PTI AND CONSTITUTED A GROSS AND PATENT ABUSE OF DISCRETION. THE TRIAL JUDGE FURTHER ERRED IN AFFIRMING THAT DENIAL.
POINT II
[DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON HIS APPLICATION AND THE APPEAL OF THE DENIAL OF THAT APPLICATION TO PRETRIAL INTERVENTION. U.S. CONST. AMEND. VI (Not Raised Below).
POINT III
THE TRIAL COURT WAS NOT BOUND, FOR PURPOSES OF THE BASE SENTENCE, TO THE TERMS OF THE PLEA AGREEMENT.
II.
Defendant argues that the trial court erred by affirming the denial of his application for PTI admission. He contends that the PTI director failed to consider all relevant factors and considered inappropriate factors in evaluating the application. He contends that the rejection of his PTI application was arbitrary and unreasonable, and an abuse of discretion. We do not agree.
N.J.S.A. 2C:43-12(e) provides that, after the filing of a criminal complaint, and at any time prior to trial, the court may postpone further criminal proceedings and refer the applicant to a program of supervisory treatment approved by the Supreme Court, upon the written recommendation of the program director and the prosecutor. In making their decisions, the director and prosecutor are required to consider certain criteria. N.J.S.A. 2C:43-12(e)(1) to (17). In addition, N.J.S.A. 2C:43-13 establishes a procedure for supervisory treatment, and N.J.S.A. 2C:43-14 provides that the Supreme Court may adopt rules dealing with supervisory treatment.
Rule 3:28 authorizes PTI programs in accordance with N.J.S.A. 2C:43-12 and -13, and sets forth the process whereby criminal defendants may seek admission to PTI programs. In addition, the Supreme Court has adopted guidelines for PTI admission. Guideline 3 incorporates the statutory criteria in N.J.S.A. 2C:43-12(e).
Guideline 3(i) provides that any defendant charged with a crime is eligible for PTI admission, but the nature of the offense is a factor to be considered in reviewing the application. This guideline also provides that persons 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."
The guideline states, however, that the applicant may present "any facts or materials demonstrating the applicant's 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."
A prosecutor's decision on whether a defendant should be admitted to PTI is entitled to "great deference." State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (citing State v. Leonardis, 7 3 N.J. 360, 381 (1977)). Furthermore, a prosecutor's determination to deny admission to PTI may be reversed only to correct "'the most egregious examples of injustice and unfairness.'" State v. DeMarco, 107 N.J. 562, 566 (1987) (quoting Leonardis, supra, 73 N.J. at 384).
Consequently, a defendant who seeks reversal by the court of a prosecutor's denial of admission to PTI has a "'heavy burden.'" State v. Bender, 80 N.J. 84, 89 (1979) (quoting Leonardis, supra, 73 N.J. at 381). The defendant must "'clearly and convincingly'" establish that the prosecutor's decision "'was based on a patent and gross abuse of his discretion.'" State v. Dalglish, 86 N.J. 503, 509 (1981) (quoting Leonardis, supra, 73 N.J. at 382).
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 on a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. 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.A court may not substitute its own discretion for that of the prosecutor, when reviewing a prosecutor's decision concerning admission to PTI. State v. Nwobu, 139 N.J. 236, 253 (1995) (citing Kraft, supra, 265 N.J. Super. at 112).
[Bender, supra, 80 N.J. at 93 (citation omitted).]
We are convinced that the decision denying defendant's PTI application was not a patent and gross abuse of discretion. Here, the PTI director considered the nature of the offenses involved, specifically, the unlawful possession of a handgun and defendant's alleged concealment of the weapon for purposes of hindering his own prosecution. The director considered other relevant factors and determined that defendant had not established compelling reasons for admission to PTI.
The director noted that defendant was involved in the motor vehicle accident while under the influence of alcohol. Furthermore, defendant had concealed the weapon on private property, and it could easily have fallen into the hands of a child or another individual and caused serious harm. The director determined that the public's need for prosecution outweighed any benefit that defendant would derive from admission to the PTI program. In the trial court, the prosecutor indicated that he agreed with the director's determination.
Defendant argues that the director failed to consider his amenability to correction and responsiveness to rehabilitation and based her decision solely on the nature of the offenses. However, the director did not deny the application on that basis. The director considered all relevant factors.
Indeed, the director noted that defendant was fifty years old, did not have any physical or emotional health issues, and admitted to only occasional use of alcohol, although he was charged with operating his vehicle while under its influence. The director also pointed out that defendant had no prior offense history as a juvenile or adult.
Defendant further argues that the prosecutor improperly failed to act on his application. We disagree. As stated previously, although the prosecutor did not issue a separate rejection of the application, the prosecutor established in his submissions to the trial court that he did not consent to defendant's application, essentially for the reasons set forth by the PTI director.
Defendant also contends that the director considered inappropriate factors and did not consider all factors relevant to his application. He maintains that the director overemphasized the seriousness of the offenses, and relied upon speculative possible harms from the offenses. Again, we disagree. The director aptly noted that defendant was charged with serious offenses and his actions could have led to harm to others. The possible harms from defendant's conduct were not
Defendant also contends that the director underemphasized his good character, as shown by his lifetime of law-abiding conduct, self-motivation to attain higher education despite difficult family finances, his twenty years in business, care for an ill parent, and involvement in his children's lives.
There is, however, no indication that the director failed to consider these facts. The director determined, based on a consideration of all relevant factors, that defendant had not established compelling reasons for entry into PTI. As noted, the prosecutor agreed with that determination.
Thus, the trial court correctly determined that defendant has not shown that the prosecutor's decision to deny him admission to PTI was a patent and gross abuse of discretion.
III.
Next, defendant argues that he was denied the effective assistance of counsel on his PTI application. He contends that his attorney erroneously appealed the director's decision denying PTI admission to the Law Division, when he should have presented additional facts and information to the prosecutor and the PTI director to show that there were compelling reasons for his admission to the program. He also maintains that counsel made erroneous arguments on the Law Division appeal.
Where, as in this case, a defendant alleges that he was denied the effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution, the claim is considered under the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), for consideration of similar claims raised under the New Jersey Constitution.
In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We are convinced that defendant has not met his burden under Strickland. The record shows that the prosecutor supported the director's determination, and therefore an application for reconsideration of the denial would have been fruitless. Moreover, defendant has not identified the additional facts and material that his attorney should have been presented in a reconsideration application to the prosecutor or in the Law Division appeal. He has not shown that any additional facts and material would have led to a different result.
Furthermore, in ruling on the PTI appeal, the trial court observed that defendant's counsel had "argued zealously" on defendant's behalf and did "a very good job." The court stated, however, that counsel's arguments were insufficient to warrant reversal of the director's determination. While defendant claims his counsel made erroneous arguments, he has not shown that the appeal would have been successful if counsel had handled the matter differently.
We conclude that defendant's claim that he was denied the effective assistance of counsel in the handling of his PTI application and the Law Division appeal is without merit.
IV.
Defendant further argues that the trial court erred by denying his motion to sentence him to a base term for a third-degree offense pursuant to N.J.S.A. 2C:44-1(f)(2), with a mandatory minimum term for the second-degree firearms offense pursuant to N.J.S.A. 2C:43-6.2. The trial court concluded that it did not have discretion to impose such a sentence.
The State contends that this issue is moot, since defendant has served his one-year minimum sentence and has been paroled. However, defendant was sentenced to a five-year base term on August 26, 2011. Therefore, he remains on parole and could be returned to jail if he violates the conditions of parole.
Thus, the sentencing issue is not moot. We therefore turn to defendant's contention that the trial court had authority to sentence him to a base term appropriate for third-degree offenses, pursuant to N.J.S.A. 2C:44-1(f)(2), with a one-year minimum term pursuant to N.J.S.A. 2C:43-6.2.
Here, defendant pleaded guilty to unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b), a second-degree offense. The Graves Act provides that a person who has been convicted under N.J.S.A. 2C:39-5(b) shall be sentenced to a term of imprisonment, which shall include a minimum term of between one-third and one-half of the sentence imposed, or three years, whichever is longer. N.J.S.A. 2C:43-6(c).
However, N.J.S.A. 2C:43-6.2 provides that, upon the prosecutor's motion establishing
that imposition of a mandatory minimum term of imprisonment under [N.J.S.A. 2C:43-6(c)] for a defendant who has not previously been convicted of an offense under that subsection . . . does not serve the interests of justice, the assignment judge shall place the defendant on probation pursuant to [N.J.S.A. 2C:43-2(b)(2)] or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole. The sentencing court may also refer a case of a defendant who has not previously been convicted of an offense under that
subsection to the assignment judge, with the approval of the prosecutor, if the sentencing court believes that the interests of justice would not be served by the imposition of a mandatory minimum term.
In State v. Des Marets, 92 N.J. 62, 73 (1983), the Court stated that, under the then-applicable provisions of the Graves Act, a person who was convicted of an offense that came within the ambit of the Act, could not "escape a mandatory minimum imprisonment of at least three years." The Court stated that the Graves Act reflected the Legislature's intent "to deter the use of firearms by establishing mandatory minimum terms of imprisonment to ensure certainty of punishment." Ibid.
Thus, the Court held that the trial court did not have authority to impose an indeterminate sentence upon a youthful offender pursuant to N.J.S.A. 2C:43-5, because such a sentence did not include a period of parole ineligibility as required by the Graves Act. Id. at 76-77. Moreover, the trial court did not have authority to suspend the imposition of the sentence for the period of the mandatory minimum term. Id. at 77. In addition, the trial court could not sentence a youthful offender to a youth correctional facility instead of State prison for the mandatory minimum term. Id. at 82-83.
N.J.S.A. 2C:43-6.2 was enacted after Des Marets. L. 1989, c. 52, § 1, eff. April 14, 1989. The purpose of the amendment was to allow the trial courts to exercise greater discretion in the sentencing of first-time firearms offenders, where the imposition of the mandatory minimum terms required by the Graves Act were deemed to be "unnecessarily and unproductively harsh." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:43-6.2.
In State v. Alvarez, 246 N.J. Super. 137, 145 (App. Div. 1991), we noted that, under N.J.S.A. 2C:43-6.2, the assignment judge has the ultimate sentencing responsibility, and has been given a choice of sentences that can be imposed for first-time Graves Act offenders. We stated that the assignment judge "can impose a probationary sentence pursuant to [N.J.S.A. 2C:43-2(b)(2)] or impose a custodial sentence within the authorized range for the offense with a mandatory ineligibility term of one year." Ibid. We added, however, that the assignment judge "cannot consider either of these alternatives or options without the prosecutor's consent." Ibid.
Thus, N.J.S.A. 2C:43-6(c) requires that a person who commits one of the firearms offenses referred to in the Act must be sentenced to a term of incarceration with a mandatory minimum sentence of at least three years, or eighteen months in the case of fourth-degree crimes, during which the defendant is not eligible for parole. The only exception to this statutory mandate is the relief afforded to first-time firearms offenders by N.J.S.A. 2C:43-6.2, which allows the sentencing court, with the approval of the assignment judge, to impose a probationary term or a one-year mandatory minimum period of imprisonment, so long as the prosecutor consents to such a sentence.
The Graves Act does not expressly authorize the court to sentence a second-degree offender to a base term within the range of sentences for third-degree offenses, pursuant to N.J.S.A. 2C:44-1(f)(2), while imposing a mandatory minimum term pursuant to either N.J.S.A. 2C:43-6(c) or N.J.S.A. 2C:43-6.2. Had the Legislature intended to preserve the court's authority to reduce the base term pursuant to N.J.S.A. 2C:44-1(f)(2), it could have included such a provision in the statute. It did not.
Rather, the Legislature's intention, as reflected in the plain language of the statutes, is for Graves Act offenders to be sentenced as provided in N.J.S.A. 2C:43-6(c), with the limited relief afforded to first-time firearms offenders available under N.J.S.A. 2C:43-6.2. As we stated in Alvarez, under N.J.S.A. 2C:43-6.2, the sentencing court may impose a probationary term, or a custodial sentence "within the authorized range for the offense" with a one-year period of parole ineligibility, but may do so only with the prosecutor's consent. Alvarez, supra, 246 N.J. Super. at 145.
We therefore conclude that the trial court correctly determined that it was not authorized to sentence defendant to a base term appropriate for third-degree offenders, pursuant to N.J.S.A. 2C:44-1(f)(2). The authorized range for defendant's offense is the range for second-degree offenses.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION