(Not A) Wildgoose Chase

The New Jersey Appellate Division has remanded a criminal matter for a hearing on the exercise of prosecutorial discretion

Defendant Arthur F. Wildgoose appeals from a December 7, 2022 Law Division order denying his petition for post conviction relief (PCR). He was charged with endangering the welfare of a child and aggravated sexual assault of a twelve-year-old. Defendant rejected the State’s plea offer, which was tendered after indictment, and was convicted by a jury on both counts. He now challenges the graduated plea provision of the Guidelines, claiming it imposes an impermissible “indictment penalty,” violating due process, the right to the effective assistance of counsel, and the right under the doctrine of fundamental fairness to a plea offer that is not arbitrary and capricious.

We conclude that defendant’s PCR petition establishes a prima facie case for limited relief in the form of further factfinding by the PCR judge. We remand for the prosecutor to provide a statement explaining the reason for not tendering a pre-indictment plea offer, and for the PCR judge to review that explanation to determine if the prosecutor’s decision constitutes an arbitrary or capricious exercise of prosecutorial discretion resulting in prejudice to defendant.

(Mike Frisch)