RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1988-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
QUASHAWN D. SHIVERS,
Defendant-Appellant. ________________________
Argued February 28, 2024 – Decided April 12, 2024
Before Judges Gummer and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 21- 03-0644.
Luke C. Kurzawa argued the cause for appellant (Reisig Criminal Defense & DWI Law, LLC, attorneys; Matthew Whalen Reisig and Luke C. Kurzawa, on the brief; Michael H. Ross, of counsel and on the brief).
Kevin Jay Hein, Assistant Prosecutor, argued the cause for respondent (Grace C. MacAulay, Camden County Prosecutor, attorney; Kevin Jay Hein, of counsel and on the brief). PER CURIAM
Defendant Quashawn D. Shivers appeals from an order entered on January
6, 2022, denying his motion challenging the prosecutor's rejection of his
application for pre-trial intervention (PTI). Defendant argues the court erred by
failing to find the prosecutor's objection constituted a patent and gross abuse of
discretion. We disagree and affirm.
On March 24, 2021, defendant was indicted on charges of third-degree
terroristic threats, N.J.S.A. 2C:12-3, second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b)(l), second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a)(l), and fourth-degree aggravated assault,
N.J.S.A. 2C: 12-1(b)(4) (pointing a firearm at or in the direction of another).
The charges stem from a November 2017 complaint made by the mother of
defendant's child, who claimed defendant had appeared at her home and
threatened to harm her, pointing a handgun at her face. Several months after the
indictment was returned, the State extended a plea offer in which defendant
would plead guilty to the third-degree terroristic threats charge—the sole charge
in the indictment not involving possession of a weapon—and the State would
dismiss the remaining charges.
A-1988-21 2 Before accepting the plea offer, defendant sought the prosecutor's consent
to apply to PTI. The State agreed defendant could submit a PTI application but
did not consent to his acceptance into PTI.
On August 24, 2021, one day before he was scheduled to plead guilty to
the terroristic-threats charge, defendant filed his PTI application and included a
statement of compelling reasons required by Rule 3:28-1(e)(3). He claimed to
be an ideal candidate for PTI based on: his age of thirty-four years; his lack of
prior criminal history; his motivation to participate in PTI; his current
employment as a social worker and counselor; and the fact he placed a high
importance on maintaining a law-abiding life. He also noted his alleged criminal
activity is "related to a condition that would be conducive to change through his
participation in supervisory treatment insofar as the structure PTI provides will
help" him lead a law-abiding life.
Defendant acknowledged three of the four charges against him "would
ordinarily serve to disqualify him from consideration from [PTI] admission ,"
presumably referencing the weapons and aggravated-assault charges and Rule
3:28-1(d)(1), which provides that a person charged with a crime "for which there
is a presumption of incarceration or a mandatory minimum period of parole
ineligibility" is "ineligible for [PTI] without prosecutor consent to consideration
A-1988-21 3 of the application." However, defendant pointed out the State had extended a
plea offer in which those charges would be dismissed and defendant would plead
guilty to the terroristic-threats charge, which defendant contended would "avoid
the imposition of any jail time" and "is a charge that would make the Defendant
eligible for admission into the PTI program." Defendant contended the State
had made that plea offer after hearing defense counsel's arguments concerning
the difficulty the State would face in attempting to introduce into evidence the
gun defendant allegedly had pointed at the victim.
On August 24, 2021, defendant executed a plea form in which he agreed
to plead guilty to the third-degree terroristic-threats charge. The plea form
included the following language:
State has consented to allow [d]efendant to apply for PTI. If accepted, [d]efendant will participate in same. If ultimately denied admission into PTI, [S]tate will recommend a term of non-custodial probation, conditioned upon a psychological evaluation and any recommend[ed] treatment, a substance abuse evaluation and any recommended treatment, no uninvited contact with the victim, forfeiture of the firearm seized in this matter, and forfeiture of all firearms pursuant to the DV Firearms Surrender Order.
At the plea hearing the following day, the court confirmed defendant
understood the nature of his plea and its effect on his PTI application:
A-1988-21 4 [The court:] My understanding is you’re going to plead guilty to a terroristic threat, a third degree, in return for a recommended sentence of either PTI or probation. Is that your understanding?
A: Yes.
[The court:] Have you had enough time to review your case and your plea agreement including any discovery in this matter with [counsel]?
....
[The court:] If you’re not accepted into PTI, you understand—and you're sentenced to the third[-]degree terroristic threat, you understand you'd have a criminal record?
[The court:] If you are accepted into PTI and you successfully complete that program, then you would not have a criminal record. Do you understand that?
A: Yes, I do.
Defense counsel further clarified that there is a presumption against
admittance and that admission was not guaranteed:
[Counsel:] So, there's two provisions in the statute governing PTI that I want to go over on the record with you. One is [N.J.S.A.] 2C:43-12b(2)(b), which actually states that there is a presumption against you being admitted into PTI based on what you’re charged with.
A-1988-21 5 Do you understand that there is a presumption against your being admitted into the program?
[Counsel:] And that we have to overcome that presumption against you.
[Counsel:] And the other provision is that you’re entering a guilty plea today and also, concomitantly or simultaneously, applying for PTI, that’s because the statute, the same statute, 2C:43-12g(3) states that in cases involving domestic violence, which your case is, that you can only apply for PTI with a guilty plea. Do you understand that?
[Counsel:] And you understand that there is—the reality here is you may not get into PTI.
[Counsel:] And that if you don’t get in, the State is recommending non-custodial probation, which means you’re not going to prison and/or jail. Do you understand that?
Defendant then made certain allocutions as to the terroristic threat charge:
[Counsel:] And did you have a verbal disagreement with V.J. on that occasion at about 9:00 p.m.?
A-1988-21 6 A: Yes.
[Counsel:] And during this verbal disagreement, was that verbal disagreement about ongoing co-parenting issues that you’ve had with V.J. as it related to the minor child in common?
[Counsel:] And during this verbal disagreement, did you become both animated and unduly and unnecessarily argumentative?
[Counsel:] And during that state, your state of being animated and unduly and unnecessarily argumentative, did you threaten to harm V.J. with the purpose to terrorize her during this verbal disagreement?
[Counsel:] When I say "the purpose," is the intent to commit the crime?
[Counsel:] And did you have that purpose?
On September 27, 2021, the Prosecutor's Office notified defense counsel
it had reviewed defendant's PTI application and statement of compelling reasons
and objected to defendant's admission into PTI based on his failure to comply
A-1988-21 7 with the deadline required under Rule 3:28-2, which requires that "[a]pplications
for pretrial intervention shall be made at the earliest possible opportunity,
including before indictment . . . unless good cause is shown or consent by the
prosecutor is obtained."
The State asserted defendant had failed to demonstrate the requisite
extraordinary and compelling circumstances that would justify admission into
PTI. The State contended defendant's age, criminal history and employment did
not constitute extraordinary and compelling circumstances and further stated
"the existence—and negotiated terms—of a plea offer, the potential legal
challenges defendant might raise, as well as the strength of the State's case do
not overcome the presumption of ineligibility that exists due to the nature of the
crimes charged." Defendant filed a motion challenging the prosecutor's
rejection of his application.
Following defendant's motion, a hearing was convened and the matter
adjourned to give the State an opportunity to update its response to include a
complete analysis of the statutory factors under N.J.S.A. 2C:43-12(e). The State
issued a supplemental letter noting it did not dispute defendant's contention that
"consent was given for the late submission of the application, or for
consideration of the application due to the pending second-degree charges" but
A-1988-21 8 reiterated its position that defendant's age, criminal history, and employment did
not constitute extraordinary and compelling circumstances justifying admission
into PTI.
Relying on Rule 3:28-4(b)(1)(iii), the State focused on the victim's
statement that defendant had pointed a gun at her during the argument as a basis
for concluding that he had committed a deliberate act of violence and, the
presumption against admission into PTI had not been overcome. The State
further noted its objection was based upon the statutory criteria in N.J.S.A.
2C:43-12(e)(1) to (17) and specifically contended the following factors weighed
against defendant's admission to PTI: (1) the nature of the offense, (2) the facts
of the case, (3) age and motivation of defendant, (4) the desire of the victim to
forego prosecution, (6) the lack of likelihood defendant's crime is related to a
condition conducive to change through participation in supervisory programs ,
(7) consideration of the needs and interests of the victim and society, (10)
whether or not the crime is of a violent or assaultive nature, and (17) 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.
A-1988-21 9 On January 6, 2022, following argument, the court entered an order
denying defendant's motion. In rendering its oral decision, the court squarely
addressed defendant's arguments that the prosecutor committed a patent and
gross abuse of discretion by objecting to his application based on the original
second-degree charges in the indictment. The court stated,
What the defense counsel is essentially asking the court is to consider the application was made prior to a plea, and that the State shouldn’t base its rejection on those charges . . . that the defendant was originally charged with . . . but rather, that—it should be what is essentially pled to . . . I think that timing is important here, and I think the State is correct that if it is supposed to be considered after the plea, then [State v. Bell, 271 N.J. 336 (2014)] prohibits the application as PTI is not something that can be an option after a guilty plea.
Addressing the State's substantive objections, the court concluded there was no
"patent and gross abuse of discretion." Specifically, the court found the State
had considered all relevant factors, did not consider irrelevant or inappropriate
factors, and that there was no evidence presented that its denial had been
premised on a clear error in judgment or so far off the mark that it would subvert
the goals underlying the PTI program.
The court subsequently sentenced defendant to a one-year term of non-
custodial probation on his guilty plea to the third-degree terroristic threats.
Defendant makes a singular point in support of his appeal.
A-1988-21 10 POINT I
THE DEFENDANT SHOULD HAVE BEEN ENROLLED INTO THE PRE-TRIAL INTERVENTION (PTI) PROGRAM OVER THE PROSECUTOR'S OBJECTIONS SINCE THE REJECTION OF DEFENDANT'S APPLICATION WAS BASED ON A PATENT AND GROSS ABUSE OF DISCRETION BY THE CAMDEN COUNTY PROSECUTOR'S OFFICE.
"PTI is essentially an extension of the 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)); see also State v. Gomes, 253 N.J. 6, 17 (2023). A defendant may
challenge "the decision . . . of a prosecutor refusing to consent to consideration
of the defendant's application where required pursuant to R. 3:28-1(d), or of a
prosecutor's refusing to consent to the defendant's enrollment into the pretrial
intervention program[.]" R. 3:28-6. However, "the prosecutor's decision to
accept or reject a defendant's PTI application is entitled to a great deal of
deference." Roseman, 221 N.J. at 624 (citing State v. Leonardis, 73 N.J. 360,
381 (1977)).
A-1988-21 11 "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.'" State v. Johnson, 238 N.J. 119,
128-29 (2019) (quoting Wallace, 146 N.J. at 583). Our Supreme Court has
defined a "'patent and gross abuse of discretion' in the context of a prosecutor's
denial of a PTI application" as follows:
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 [PTI].
[Roseman, 221 N.J. at 625 (quoting State v. Bender, 80 N.J. 84, 93 (1979)).]
The same standard governs our review. "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." State v. Nwobu, 139 N.J. 236, 254 (1995). "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." Johnson, 238 N.J.
A-1988-21 12 at 129 (citing Roseman, 221 N.J. at 624-25). But when the prosecutor has failed
to consider all relevant information, a remand is more appropriate. Nwobu, 139
N.J. at 247 (citing State v. DeMarco, 107 N.J. 562, 567 (1987)).
Defendant challenges the State's use of the nature of the original charges
arguing "the existence of his original, unproved, now dismissed charges should
not have been used as a basis to deny his application for PTI." He disputes the
State's representation that he threatened to kill the victim, noting that during his
plea allocution, he "merely admitted that he became animated, unduly
argumentative, and threatened to harm the victim with the purpose to terrorize
her." Defendant further challenges the State's focus on the timeliness of his
application, stating the timing "was a result of the fact that the nature of the
prosecution changed when the State abandoned its prosecution of the weapons-
related offenses" and that "[i]t would have been foolhardy for [defendant] to
have made his application any sooner than he did." Lastly, he posits that in all
respects he "is an appropriate candidate for PTI, having no criminal history and
being charged/convicted of a [third] degree crime [or] less."
Focusing less on defendant's failure to comply with Rule 3:28-2—and the
timeliness requirement—and more on the nature of the charges against
defendant, the State submits that defendant failed to establish a patent and gross
A-1988-21 13 abuse of discretion in the prosecutor's objection to his PTI application and
remarked that the record shows the prosecutor considered all appropriate
statutory factors pursuant to N.J.S.A. 2C:43-12(e), including that defendant had
threatened to kill the victim, which weighed heavily against his admission into
PTI.
The State further maintains that defendant did not overcome the
presumption against admittance to PTI. The State also asserts that defendant is
not a candidate for PTI because the second-degree weapon charges placed
defendant within the category of "Persons Ineligible for Pre Trial Intervention
Without Prosecutor Consent to Consideration of the Application," see R. 3:28-
1(d)(1), and that he failed to articulate any extraordinary and compelling
circumstances to justify admission. And, the State emphasizes that defendant's
discussion of his "age, criminal history and employment do not constitute
extraordinary and compelling circumstances" justifying admission to PTI.
We agree with the court that the State reviewed all relevant factors and
there was no evidence presented its denial had been premised on a clear error in
judgment or was so far off the mark that it would subvert the goals underlying
the PTI program. We discern no abuse of discretion on the part of the court in
A-1988-21 14 denying defendant's motion challenging the prosecutor's rejection of his PTI
application.
As an initial matter, we are persuaded that the email exchange between
the prosecutor and defense counsel supports the conclusion the prosecutor
expressly consented to defendant's submission of the PTI application for
consideration. However, consenting to consideration of an application to PTI is
not the same as consenting to defendant's admission into PTI. See R. 3:28-6.
Thus, the sole issue is whether the prosecutor, after having consented to
defendant's late application to PTI committed a patent and gross abuse of
discretion by later opposing defendant's application based on the reasons stated
in her written objections.
Defendant argues his application should have been "evaluated based on
the current posture of what the case is, and not what it was," referring to the
State's focus on the allegation that he threatened to kill the victim when, during
his plea allocution, he "merely admitted that he became animated, unduly
argumentative, and threatened to harm the victim with the purpose to terrorize
her."
In applying our Supreme Court's holding in Bell, 271 N.J. at 348, the trial
court correctly evaluated defendant's application. The Court in Bell declared
A-1988-21 15 that "the vision of PTI . . . contemplates a pretrial decision by the defendant to
seek, and a pretrial decision by the prosecutor to admit, an offender to this
diversionary program" such that "permitting a defendant found guilty of a
criminal offense to seek admission to PTI transforms an effective pretrial
diversionary program into an alternative sentencing option. Such action stands
the PTI program on its head." 271 N.J. at 348; see also State v. Waters, 439 N.J.
Super. 215, 224-25 (App. Div. 2015) (holding that "such concerns are also raised
when a trial court grants a PTI appeal after a valid guilty plea").
Based on Bell, the trial court found it had "to consider the State's denial
based on [its] consideration of the application prior to the plea and what the
charges were, and the facts [that were] alleged based on the charge, not what the
defendant ultimately pled to." We agree. To adopt the post-plea, post-
conviction analytical framework proposed by defendant would, as the Supreme
Court found in Bell, have the effect of "transform[ing] an effective pretrial
diversionary program into an alternative sentencing option," thereby "stand[ing]
the PTI program on its head." 271 N.J. at 348.
Given that the court applied the correct analytical framework, that
defendant had been charged with crimes carrying a presumption against
admission into PTI, see R. 3:28-1(e)(2)(b), and the consideration of other
A-1988-21 16 applicable factors, see R. 3:28-4, we perceive no error in the court's finding that
defendant did not prove by clear and convincing evidence the prosecutor's denial
of defendant's PTI application constituted a patent and gross abuse of discretion.
Affirmed.
A-1988-21 17