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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 (R eisig 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 an d on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1988

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PER CURIAM Defendant Quashawn D. Shivers appeals from an order entered on January 6, 2022, denying his motion challenging the prosecu tor's rejection of his application for pre-trial intervention (PTI). Defen dant argues the court erred by failing to find the prosecutor's objection constitu ted a patent and gross abuse of discretion. We disagree and affirm.
On March 24, 2021, defendant was indicted on charges o f third-degree terroristic threats, N.J.S.A. 2C:12-3, second-degre e unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(l), second-degree poss ession 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 mad e 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 f ace. Several months after the indictment was returned, the State extend ed 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 wea pon

— and the State would dismiss the remaining charges.3 A- 1988

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Before accepting the plea offer, defendant sought t he 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 includ ed a statement of compelling reasons required by Rule 3:28 -1(e)(3)

. H e 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 participa te in PTI; his current employment as a social worker and counselor; and th e fact he placed a high importance o n maintaining a law-abiding life. He also noted his alleged criminal activity is "related to a condition that would be con ducive to change through his participation in supervisory treatment insofar as t he structure PTI provides will help" him lead a law-abiding life. Defendant acknowledged three of the four charges ag ainst him "would ordinarily serve to disqualify him from considerati on from [PTI] admission," presumably referenc ing the weapons and aggravated-assault charges and Rul e 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 mi nimum period of parole ineligibility" is "ineligible for [PTI] without prosecutor consent t o consideration4 A- 1988

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of the application." However, defendant pointed ou t the State had extended a plea offer in which those charges would be dismisse d and defendant would plead guilty to the terroristic-threats charge, which def endant 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." Defe ndant contended the State had made that plea offer after hearing defense coun sel's arguments concerning the difficulty the State would face in attempting t o 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-thr eats charg e. The plea form included the following language:

State has consented to allow [d]efendant to apply f or 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, condition ed 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 al l firearms pursuant to the DV Firearms Surrender Orde r. At the plea hearing the following day, the court co nfirmed defendant understood the nature of his plea and its effect on his PTI application:5 A- 1988

- 21 [The court:] My understanding is you’re going to plead guilty to a terroristic threat, a third degree, in return fo r 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 discover y in this matter with [counsel]?
A: Yes.

. . . . [The court:] If you’re not accepted into PTI, you understand

— and you're sentenced to the third[-]degree terroristic threat, you understand yo u' d have a criminal record?
A : Yes. [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 p resumption against admittance and that admission was not guaranteed:

[Counsel:] So, there's two provisions in the statu te 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 bein g admitted into PTI based on what you’re charged with

.6 A- 1988

- 21 Do you understand that there is a presumption again st your being admitted into the program?
A: Yes. [Counsel:] And that we have to overcome that presumption against you.
A: Yes. [Counsel:] And the other provision is that you’re entering a guilty plea today and also, concomitantl y or simultaneously, applying for PTI, that’s because th e 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?
A: Yes. [Counsel:] And you understand that there is

— the reality here is you may not get into PTI.
A: Yes.

. . . . [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?
A : Yes, I do. Defendant then made certain allocutions as to the t erroristic threat charge: [Counsel:] And did you have a verbal disagreement with V.J. on that occasion at about 9:00 p.m.?7 A- 1988

- 21 A: Yes. [Counsel:] And during this verbal disagreement, wa s that verbal disagreement about ongoing co-parenting issues that you’ve had with V.J. as it related to the minor child in common?
A: Yes. [Counsel:] And during this verbal disagreement, di d you become both animated and unduly and unnecessarily argumentative?
A: Yes. [Counsel:] And during that state, your state of be ing animated and unduly and unnecessarily argumentative , did you threaten to harm V.J. with the purpose to terrorize her during this verbal disagreement?
A: Yes. [Counsel:] When I say "the purpose," is the intent to commit the crime?
A: Yes. [Counsel:] And did you have that purpose?
A: Yes. On September 27, 2021, the Prosecutor's Office noti fied defense counsel it had reviewed defendant's PTI application and sta tement of compelling reasons and object ed to defendant's admission into PTI based on his fai lure to comply8 A- 1988

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with the deadline required under Rule 3:28 -2, which requires that "[a]pplications for pretrial intervention shall be made at the earl iest possible opportunity, including before indictment . . . unless good cause is shown or consent by the prosecutor is obtained." The State asserted defendant had failed to demonstr ate the requisite extraordinary and compelling circumstances that wou ld justify admission into
PTI

. The State contended defendant's age, criminal hist ory and employment did not constitute extraordinary and compelling circums tances and further stated
"t he existence

— and negotiated terms

— of a plea offer, the potential legal challenges defendant might raise, as well as the st rength of the State's case do not overcome the presumption of ineligibility that e xists 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 updat e 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 a pplication, or for consideration of the application due to the pending second-degree charges" but9 A- 1988

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reiterated its position that defendant's age, crimi nal history, and employment did not constitute extraordinary and compelling circums tances justify ing 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 d uring the argument as a basis for concluding that he had committed a deliberate a ct of violence and , the presumption against admission into PTI had not been overcome. The State further noted its objection was based upon the stat utory 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 PT I: (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 defe ndant'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.10 A- 1988

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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 objecti ng 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 cha rged with . . . but rather, that

— it should be what is essentially pled to . . . I think that timing is im portant here, and I think the State is correct that if it i s supposed to be considered after the plea, then [State v. Bel l, 271 N.J. 336 (2014)] prohibits the application as PTI i s 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." Specifical ly, the court found the State had considered all relevant factors, did not consid er irrelevant or inappropriate factors, and that there was no evidence presented t hat 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 on e-year term of noncustodial probation on his guilty plea to the third-degree terroristic threats. Defendant makes a singular point in support of his appeal.11 A- 1988

- 21 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 de cision, therefore the decision to grant or deny PTI is a 'quintessentiall y 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 refus ing to consent to consideration of the defendant's application where required pursu ant 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 e ntitled to a great deal of deference." Roseman, 221 N.J. at 624 (citing State v. Leonardis, 73 N.J. 360, 381 (1977)).12 A- 1988

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"A court reviewing a prosecutor's decision to deny PTI may overturn that decision only if the defendant 'clearly and convinc ingly' establishes the decision was a 'patent and gross abuse of discretion.'" Sta te 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' i n 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) wa s not premised upon a consideration of all relevant facto rs, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear e rror 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 questio n is not whether we agree or disagree with the prosecutor's decision, b ut whether the prosecutor's decision could not have been reasonably made upon w eighing 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.13 A- 1988

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at 129 (citing Roseman, 221 N.J. at 624-25). But w hen the prosecutor has failed to consider all relevant information, a remand is m ore 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, n ow dismissed charges should not have been used as a basis to deny his applicati on for PTI." He disputes the State's representation that he threatened to kill the victi m, noting that during his plea allocution, he "merely admitted that he became animated, unduly argumentative, and threatened to harm the victim wi th 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 th e fact that the nature of the prosecution changed when the State abandoned its pr osecution of the weaponsrelated offenses" and that "[i]t would have been fo olhardy 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, h aving 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 gross14 A- 1988

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abuse of discretion in the prosecutor's objection t o his PTI application and remark ed that the record shows the prosecutor considered al l appropriate statutory factors pursuant to N.J.S.A. 2C:43-12(e), incl u ding that defendant had threaten ed to kill the victim, which weigh ed heavily against his admission into
PTI. The State further maintains that defendant did not overcome the presumption against admittance to PTI. The State a lso asserts that defendant is not a candidate for PTI because the second-degree w eapon charges placed defendant within the category of "Persons Ineligibl e 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 extra ordinary and compelling circumstances to justify admission. And, the State emphasizes that defendant's discussion of his "age, criminal history and employ ment do not constitute extraordinary and compelling circumstances" justify ing 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 premise d on a clear error in judgment or was so far off the mark that it would s ubvert the goals underlying the PTI program. We discern no abuse of discretion on the part of the court in15 A- 1988

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denying defendant's motion challenging the prosecut or's rejection of his PTI application. As an initial matter, we are persuaded that the ema il exchange between the prosecutor and defense counsel supports the con clusion the prosecutor expressly consented to defendant's submission of th e 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, aft er having consented to defendant's late application to PTI committed a pat ent and gross abuse of discretion by later opposing defendant's applicatio n 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 wh at 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 be came animated, unduly argumentative, and threatened to harm the victim wi th the purpose to terrorize her." In applying our Supreme Court's holding in Bell , 271 N.J. at 348, the trial court correctly evaluat ed defendant's application. The Court in Bell declar ed16 A- 1988

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that "the vision of PTI . . . contemplates a pretri al 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 defen dant found guilty of a criminal offense to seek admission to PTI transform s 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 vali d guilty plea"). Based on Bell, the trial court found it had "to con sider the State's denial based on [its] consideration of the application pri or to the plea and what the charges were, and the facts [that were] alleged bas ed on the charge, not what the defendant ultimately pled to." We agree. To adopt the post -plea, post

conviction analytical framework proposed by defenda nt would, as the Supreme Court found in Be ll , have the effect of "transform[ing] an effective pre trial 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 carr ying a presumption against admission into PTI, see R. 3:28 -1(e)(2)(b), and the consideration of other17 A- 1988

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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 evi dence the prosecutor's denial of defendant's PTI application constituted a patent and gross abuse of discretion

. Affirmed.