State v. Davon M. Johnson (080394) (Essex County and Statewide)
207 A.3d 1277
N.J.2019Background
- In May 2014 Davon M. Johnson was arrested after heroin bricks fell from his car; charged with third-degree possession, possession with intent to distribute, and possession with intent within 1,000 feet of a school (N.J.S.A. 2C:35-7(a)).
- Johnson (age 21, no prior criminal history, college student) applied for Pretrial Intervention (PTI) and submitted a statement of compelling reasons; Probation recommended denial.
- Prosecutor denied PTI citing (1) the Caliguiri-based presumption treating N.J.S.A. 2C:35-7 as akin to second-degree offenses (presumptive PTI ineligibility) and (2) Guideline 3(i)’s presumption against PTI for sale/dispensing of Schedule I/II narcotics.
- Johnson appealed the denial; trial court and Appellate Division upheld the prosecutor’s decision. The Supreme Court granted certification.
- The Supreme Court examined whether the 2009 amendments to N.J.S.A. 2C:35-7 and the statutory language regarding "distribute/dispense" affect the applicability of those PTI presumptions.
Issues
| Issue | State's Argument | Johnson's Argument | Held |
|---|---|---|---|
| Whether the presumption against PTI for first/second-degree offenses applies to N.J.S.A. 2C:35-7(a) school-zone third-degree offenses | Caliguiri remains valid; the offense is serious and Legislature kept mandatory minimums so presumption should apply | 2009 amendments permit waiver/reduction of parole ineligibility and probation; statute now shows more flexible sentencing so Caliguiri no longer applies | The 2009 amendments created a more flexible sentencing scheme; Caliguiri’s extension of the second-degree presumption to 2C:35-7(a) is no longer viable and cannot be applied |
| Whether Guideline 3(i)’s presumption for "sale or dispensing" of Schedule I/II drugs applies to possession with intent to distribute | The facts indicate intent to sell; prosecutor may treat possession with intent as equivalent to sale for PTI purposes | "Distribute" is broader than "sale"; possession with intent to distribute is not technically a sale or dispensing and Guideline language is inapplicable | The court held Guideline 3(i)’s presumption for "sale or dispensing" was inapplicable to a charge of possession with intent to distribute where no sale or dispensing was alleged |
| Whether prosecutor abused discretion in denying PTI by failing to consider required factors | Prosecutor did an individualized review and cited aggravating factors under N.J.S.A. 2C:43-12(e) | Denial was based in part on inapplicable presumptions; thus decision requires reconsideration | Because the prosecutor relied on two inapplicable presumptions, the denial must be reevaluated (remand to prosecutor) |
| Remedy after identifying legal error | Prosecutor’s decision should be upheld given deference to prosecutorial function | Reconsideration required; possible admission if compelling reasons shown | Remand to prosecutor to reassess Johnson’s PTI application without the two presumptions; further action by trial court if needed |
Key Cases Cited
- State v. Caliguiri, 158 N.J. 28 (1999) (allowed treating N.J.S.A. 2C:35-7 offenders akin to second-degree for PTI purposes under the former sentencing regime)
- State v. Baynes, 148 N.J. 434 (1997) (noting penalty structure for school-zone drug offenses resembled that for second-degree offenses)
- State v. Coursey, 445 N.J. Super. 506 (App. Div. 2016) (interpreting Guideline 3(i) and distinguishing possession with intent to distribute from a "sale")
- State v. Watkins, 193 N.J. 507 (2008) (defendant must show compelling reasons to overcome PTI presumptions; prosecutors must assess amenability to rehabilitation)
- State v. Roseman, 221 N.J. 611 (2015) (discussing PTI purpose and deference to prosecutorial decisions)
- State v. Dalglish, 86 N.J. 503 (1981) (when legal error exists, courts may remand to prosecutor for proper consideration)