DOCKET NO. A-3826-09T3
____________________________
STATE OF NEW JERSEY, : CRIMINAL ACTION
Plaintiff-Respondent, :
On Appeal from a Final
v. : Judgment of Conviction of the
Superior Court of
JOHN RAY WILSON, : New Jersey, Law Division,
Somerset County.
Defendant-Appellant.
____________________________ : Sat Below:
Hon. Robert B. Reed, J.S.C.,
and a jury.
_______________________________________________________________
BRIEF AND APPENDIX ON BEHALF OF DEFENDANT-APPELLANT
_______________________________________________________________
WRONKO & LOEWEN, ESQS.
ATTORNEYS FOR DEFENDANTAPPELLANT
69 NORTH GASTON AVENUE
SOMERVILLE, NEW JERSEY 08876
(908) 704-9200
DEFENDANT IS NOT CONFINED
JAMES R. WRONKO, ESQ.
OF COUNSEL AND ON THE BRIEF
GILBERT G. MILLER, ESQ.
ON THE BRIEF
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TABLE OF CONTENTS
STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . 3
LEGAL ARGUMENT
POINT I
THE TRIAL COURT ERRED BY HOLDING THAT THE
MEDICAL/PERSONAL USE OF MARIJUANA WAS NOT
AVAILABLE AS A DEFENSE TO A CHARGE OF
MANUFACTURING MARIJUANA . . . . . . . . . . . . . . . 8
POINT II
THE TRIAL COURT ERRED BY BARRING THE DEFENSE
EXPERT, DR. DENNIS PETRO, FROM TESTIFYING
ABOUT THE BENEFICIAL EFFECT OF MARIJUANA ON
MULTIPLE SCLEROSIS AND BY PRECLUDING MR.
WILSON FROM REFERRING TO HIS MULTIPLE
SCLEROSIS . . . . . . . . . . . . . . . . . . . . . 19
POINT III
MR. WILSON’S SENTENCE IS MANIFESTLY EXCESSIVE . . . 24
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 38
TABLE OF APPENDIX
Indictment No. 08-09-00204-S. . . . . . . . . . . . . . . . . Da1
Defendant’s motion to dismiss
indictment, February 4, 2009 . . . . . . . . . . . . . . Da4
Trial court order, March 6, 2009 . . . . . . . . . . . . . . Da6
Trial court opinion, March 9, 2009, . . . . . . . . . . . . . Da7
State’s Notice of Motion In Limine . . . . . . . . . . . . Da19
Affidavit of Dr. Denis J. Petro, M.D.,
identified at 2T18-21 to 19-24 . . . . . . . . . . . . Da20
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Trial court opinion, July 27, 2009 . . . . . . . . . . . . Da23
Trial court order, August 14, 2009 . . . . . . . . . . . . Da37
Appellate Division order denying leave to appeal,
September 21, 2009 . . . . . . . . . . . . . . . . . . Da38
Judgment of Conviction . . . . . . . . . . . . . . . . . . Da39
Trial court order, April 9, 2010,
denying bail pending appeal . . . . . . . . . . . . . Da42
Notice of Appeal . . . . . . . . . . . . . . . . . . . . . Da43
Appellate Division order on emergent application,
April 26, 2010 . . . . . . . . . . . . . . . . . . . . Da44
Trial court order setting bail, April 27, 2010 . . . . . . Da46
Letter of Dr. Petro submitted to trial court
for sentence, January 26, 2010 . . . . . . . . . . . . Da47
TABLE OF AUTHORITIES
CASES CITED
Bedell v. State, 257 Ark. 895, 521 S.W.2d 200 (1975), cert.
denied, 430 U.S. 931, 97 S.Ct. 1552 (1977) . . . . . . . 14
California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528 (1984) 20
Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038 (1973) . 21
Crane v. Kentucky, 476 U.S. 683,
106 S.Ct. 2142 (1986) . . . . . . . . . . . . . . . 20, 22
Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (Ark. 1996) . . 14
Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989 (1987) . 20
People v. Pearson, 157 Mich.App. 68, 403 N.W.2d 498 (1987) . 14
State v. Alexander, 136 N.J. 563 (1994) . . . . . . . . . . . 14
State v. Banko, 182 N.J. 44 (2004) . . . . . . . . . . . . . 21
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State v. Brown, 310 N.C. 563, 313 S.E.2d 585 (1984) . . . . . 15
State v. Childers, 41 N.C.App. 729, 255 S.E.2d 654 (1979). 14,. 1.5
State v. County Court for Columbia County, 82 Wis.2d 401,
263 N.W.2d 162 (1978) . . . . . . . . . . . . . . . . . 14
State v. E.R., 273 N.J. Super. 262 (App. Div. 1994) . . . 24, 30
State v. Evers, 175 N.J. 355 (2003) . . . . 24, 25, 26, 27, 28,
. . . 29, 30, 32
State v. Gardner, 113 N.J. 510 (1989) . . . . . . . . . . . . 36
State v. Gill, 47 N.J. 441 (1966) . . . . . . . . . . . . . . 12
State v. Grey, 147 N.J. 4 (1996) . . . . . . . . . . . . . . 21
State v. Hodge, 95 N.J. 369 (1984) . . . . . . . . . . . . . 25
State v. Ingenito, 87 N.J. 204 (1981) . . . . . . . . . . . . 21
State v. Jabbour, 118 N.J. 1 (1990) . . . . . . . . . 24, 25, 29
State v. Jarbath, 114 N.J. 394 (1989) . . . . 25, 26, 27, 30, 36
State v. Kittrell, 145 N.J. 112 (1996) . . . . . . . . . 16, 17
State v. Livingston, 172 N.J. 209 (2002). . . . . . . . . . . 15
State v. Maldonado, 137 N.J. 536 (1994) . . . . . . . . . . . 21
State v. Marshall, 136 N.M. 240, 96 P.3d 80 (N.M. App. 2004) 13
State v. Martelli, 201 N.J. Super. 378 (App. Div. 1985) . . . 36
State v. Megargel, 143 N.J. 484 (1996) . . . . . . . . . . . 29
State v. Muhammad, 182 N.J. 551 (2005) . . . . . . . . . . . 21
State v. Ragland, 105 N.J. 189 (1986) . . . . . . . . . . . . 21
State v. Rivera, 124 N.J. 122 (1991) . . . . . . . . . . . . 26
State v. Rosado, 256 N.J. Super. 126 (App. Div. 1992) . . . . 36
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State v. Roth, 95 N.J. 334 (1984) . . . . . . . . . . 24, 25, 26
State v. Savage, 120 N.J. 594 (1990) . . . . . . . . . . . . 20
State v. Sisler, 177 N.J. 199 (2003). . . . . . . . . . . 14, 15
STATUTES CITED
N.J.S.A. 2C:35-10a . . . . . . . . . . . . . . . . . . . . 1, 9
N.J.S.A. 2C:35-2 . . . . . . . . . . . . . . . . . . . . 10, 16
N.J.S.A. 2C:35-4 . . . . . . . . . . . . . . . . . . . . . 1, 16
N.J.S.A. 2C:35-5a(1) . . . . . . . . . . . . . . . . . 1, 9, 10
N.J.S.A. 2c:35-5b(10) . . . . . . . . . . . . . . . 1, 9, 10, 12
N.J.S.A. 2C:44-1a . . . . . . . . . . . . . . . . . . . . 35, 36
N.J.S.A. 2C:44-1b . . . . . . . . . . . . . . 27, 31, 33, 34, 35
N.J.S.A. 2C:44-1d . . . . . . . . . . . . . . . . . . . . 24, 25
N.J.S.A. 24:6I-1 et seq. . . . . . . . . . . . . . . . . . 5, 31
N.J.S.A. 24:6I-10a . . . . . . . . . . . . . . . . . . . . . 31
N.J.S.A. 24:6I-2e . . . . . . . . . . . . . . . . . . . . . . 31
N.J.S.A. 24:6I-3 . . . . . . . . . . . . . . . . . . . . . 5, 33
OTHER AUTHORITIES CITED
Cannel, New Jersey Criminal Code Annotated (1987), Comment,
N.J.S.A. 2C:35-4 . . . . . . . . . . . . . . . . . . . . 16
Final Report of the New Jersey Criminal
Law Revision Commission § 2C:44-1,
commentary at 326 (1971) . . . . . . . . . . . . . . . . 25
U.S. Sentencing Guidelines Manual, § 5K2.0 cmt. (2001) . . . 32
Uniform Controlled Dangerous Substances Act,
sec. 101(13). . . . . . . . . . . . . . . . . . . . 13, 16
1
1T - March 9, 2009 (motion to dismiss indictment)
2T - July 27, 2009 (motion in limine)
3T - December 14,2009 (trial)
4T - December 15, 2009 (trial)
5T - December 16, 2009 (trial)
6T - December 17, 2009 (trial)
7T - March 19, 2010 (sentencing)
8T - April 4, 2010 (bail motion)
PSR - Pre-Sentence Report
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STATEMENT OF PROCEDURAL HISTORY
A State Grand Jury returned Indictment No. 08-09-00204-S
charging defendant-appellant John Ray Wilson with maintaining a
controlled dangerous substance (CDS) production facility, first
degree, contrary to N.J.S.A. 2C:35-4 (count one); manufacturing
marijuana, second degree, contrary to N.J.S.A. 2C:35-5a(1) and
N.J.S.A. 2c:35-5b(10)(b) (count two); and possession of CDS,
mushrooms, third degree, contrary to N.J.S.A. 2C:35-10a(1) (count
three). (Da1 to 3).
On February 4, 2009, Mr. Wilson filed a motion to dismiss
counts one and two of the indictment. (Da4 to 5). After oral
argument on March 9, 2009, the trial court filed an order and
issued a written opinion denying the motion. (1T26-8 to 24; Da6
to 18).1
Thereafter, the State filed a motion to bar Mr. Wilson from
asserting a personal use defense at trial and barring him from
referring to his medical condition (multiple sclerosis) at trial.
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The State also requested that the trial court prohibit Dr. Denis
J. Petro, M.D., from testifying consistent with his affidavit as
to Mr. Wilson’s multiple sclerosis and the benefits of marijuana
treatment for this illness. (Da19).
On July 27, 2009, the trial court issued a written opinion
granting the State’s motion in its entirety. (2T22-7 to 30-25;
Da23 to 36). An order to that effect was signed on August 14,
2009. (Da37).
On September 1, 2009, Mr. Wilson filed a motion with this
Court for leave to appeal the trial court orders of March 9, 2009
and July 27, 2009. On September 22, 2009, this Court denied
leave to appeal. (Da38).
On December 14, 15, 16 and 17, 2009, Mr. Wilson was tried
before the Honorable Robert B. Reed, J.S.C., and a jury. Mr.
Wilson was found not guilty on count one, maintaining or
operating a controlled dangerous substance production facility.
However, he was found guilty on count two of manufacturing ten or
more plants of marijuana and on count three of possession of
mushrooms. (6T103-14 to 104-18).
On March 19, 2010, Mr. Wilson appeared before Judge Reed for
sentencing. On count two, he was sentenced to five years
imprisonment. On count three, he received a concurrent term of
three years imprisonment. (7T41-13 to 23; Da39 to 41).
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Mr. Wilson filed a motion with the trial court to stay the
sentence and for bail pending appeal. That motion was denied on
April 9, 2010. (8T7-6 to 9-17; Da42).
On April 12, 2010, Mr. Wilson filed a Notice of Appeal and
an emergent application with this Court for a stay of sentence
and bail pending appeal. (Da43). On April 26, 2010, this Court
granted the application for a stay and remanded the matter to the
trial court to set bail. (Da44 to 45).
On April 27, 2010, the trial court set bail at $15,000 cash
or bond. (Da46). Mr. Wilson subsequently posted bail and was
released from state prison.
STATEMENT OF FACTS
Defendant-appellant John Ray Wilson was initially diagnosed
with multiple sclerosis in 2002. He did not have health
insurance and could not afford medical treatment. (PSR). As a
result, he began to use marijuana to treat the symptoms of his
disease. Ultimately, he decided to grow marijuana to meet his
own medical needs for the drug. (7T149-7 to 17).
The medical benefits of marijuana for those who suffer from
multiple sclerosis are well documented. The affidavit of Dr.
Dennis J. Petro, M.D., a board certified neurologist, discussed
in the proceedings below, sets forth these benefits at some
length. (Da20 to 22; 2T18-21 to 19-24). Dr. Petro, who has
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testified as an expert in federal court on the beneficial effects
of marijuana on multiple sclerosis symptoms and has written three
book chapters on the subject and published the original doubleblind
clinical trial on the subject in 1981, was contacted by a
patent advocate on behalf of Mr. Wilson and agreed to volunteer
his services for Mr. Wilson without compensation. (Da21 to 22).
Dr. Petro asserted that Mr. Wilson “manifests the classic pattern
of [multiple sclerosis] pathology as seen on MRI scan [sic]
including multiple lesions of the periventricular areas of the
frontal lobes bilaterally, in the corpus callosum, at the level
of the medulla, above the fourth ventricle and in the cervical
spinal cord at the level of C6-7.” (Da21). He indicated that
clinical trials had established that cannabis provides relief for
the pain and muscle spasms associated with multiple sclerosis.
Furthermore, cannabis is associated with “improvements in bladder
dysfunction, nystagmus, fatigue, sexual dysfunction and sleep
disturbance, all symptoms commonly seen in multiple sclerosis
patients.” (21 to 22). Dr. Petro asserted that “conventional
treatments for these symptoms are often ineffective because of
the nature of the [central nervous symptom] pathology involved in
[multiple sclerosis].” (Da22).
Dr. Petro stated the drug regulatory authority of Canada had
approved of a cannabis extract for “adjunctive treatment for the
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symptomatic relief of neuropathic pain in multiple sclerosis in
adults” in 2005. Moreover, he indicated “to a high degree of
certainty” that thousands of multiple sclerosis victims in the
United States were using marijuana to treat their symptoms.
(Da21). The New Jersey Legislature has recently recognized the
beneficial effects of marijuana on multiple sclerosis symptoms
which Dr. Petro attested to in his affidavit by enacting
the “New Jersey Compassionate Use Medical Marijuana Act,”
N.J.S.A. 24:6I-1 et seq., which specifically recognizes multiple
sclerosis as one of the diseases that can be treated with medical
marijuana, N.J.S.A. 24:6I-3.
On August 18, 2008, a National Guard helicopter circled Mr.
Wilson’s property, observed what appeared to be marijuana plants
growing in a field on his property in Franklin Township and
proceeded back to the State Police Headquarters in Trenton. Mr.
Wilson observed the helicopter and knew the police would be
coming to his house. (4T44-1 to 45-23; 5T68-2 to 17; 5T122-4 to
19). The helicopter landed at headquarters and the State Police
were given the G.P.S. coordinates of the location of Mr. Wilson’s
marijuana plants. The State Police proceeded to Mr. Wilson’s
residence. (5T96-18 to 97-10; 4T44-1 to 23).
When the State Police arrived, Mr. Wilson was in his side
yard tending to a 55 gallon drum with a fire in it. He was not
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attempting to destroy evidence. (5T31-7 to 13; 5T97-11 to 98-5;
5T101-8 to 22). He was simply burning junk mail. (5T131-11 to
22).
As the State Police proceeded up Mr. Wilson’s driveway, they
saw the tops of several marijuana plants along the perimeter of
the property. (4T49-8 to 15). They located marijuana plants on
several trails on the property. These were five to six feet
tall. (4T61-4 to 10; 4T61-13 to 15). Based on the location of
the plants on the property, Sgt. Peacock, the State’s expert on
the growing of marijuana, would later testify that the plants
were not well hidden; some were even visible from an adjacent
property. (5T37-12 to 38-12). He asserted that he would have
given Mr. Wilson an “F” on his ability to hide the marijuana
plants. (5T90-1 to 4).
Mr. Wilson had not attempted to destroy the plants along
with the junk mail he was burning, even though he had ample time
to do so between the overflight of the helicopter and arrival of
the police. (5T101-8 to 22; 5T31-3 to 135; 5T93-13 to 94-2).
The State Police asked Mr. Wilson if he knew why they were there.
Mr. Wilson readily responded, “Yes, for marijuana plants.” (4T50-
24 to 51-13). After he was administered his Miranda warnings,
Mr. Wilson told the police that he was using the marijuana to
treat his multiple sclerosis. (5T149-1 to 14).
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The State Police proceeded to seize 17 plants in all; 11 of
these plants were later tested by the State lab and determined to
be marijuana. (4T75-5 to 24; 5T27-14 to 28-8; 5T28-13 to 23).
The State Police also seized a small amount of marijuana in Mr.
Wilson’s bedroom and living room and a soda can containing
illegal mushrooms. (5T11-19 to 12-13).
The police did not find any drying racks or a room to dry or
process the marijuana. (5T35-23 to 36-53). There was no
indication that marijuana had ever been dried on the premises.
(5T98-19 to 1–2; 5T103-2 to 16). No tools were located with
which to harvest or cut the marijuana. (5T44-8 to 14; 5T100-3 to
8). No cash was seized from the premises and the local
prosecuting agency, the Somerset County Prosecutor’s Office,
indicated that it had no prior information that would implicate
Mr. Wilson in any illegal activity of drug distribution. (5T44-2
to 45-4; 5T45-9 to 12).
At trial, Sgt. Peacock testified that the State Police did
not know why Mr. Wilson was growing marijuana, but he advised the
jury that his opinion was that Mr. Wilson intended either to sell
it or smoke it or both. (5T96-4 to 9). He further opined that
all of Mr. Wilson’s plants were female, which have a higher THC
content and consequently are more profitable for a seller.
(5T93-23 to 94-2; 5T78-20 to 79-5).
-8-
In response to Sgt. Peacock’s testimony, Mr. Wilson was only
permitted to answer one leading question by agreeing that he was
growing marijuana for personal use. (5T131-1 to 3). He was
prohibited from testifying that he learned how to grow marijuana
from a medical marijuana web site. (5T126-4 to 16). He was not
allowed to explain to the jury that he did not attempt to hide
the marijuana or destroy it because he was growing it to treat
his multiple sclerosis. He was only allowed to state that he was
not aware of the legal consequences of his action. (5T127-24 to
128-14).
As a result of his possession of 17 marijuana plants
intended solely to treat the debilitating symptoms of his
multiple sclerosis, Mr. Wilson was convicted of the manufacture
of marijuana, an offense carrying a penalty of up to ten years
imprisonment. This appeal follows.
LEGAL ARGUMENT
POINT I
THE TRIAL COURT ERRED BY HOLDING THAT THE
MEDICAL/PERSONAL USE OF MARIJUANA WAS NOT
AVAILABLE AS A DEFENSE TO A CHARGE OF
MANUFACTURING MARIJUANA.
Mr. Wilson asserts that the trial court erred by not
allowing him to present a personal use defense as to the charge
of manufacturing marijuana, count two, based on his using
marijuana to treat his multiple sclerosis. Mr. Wilson would have
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testified that he was growing the marijuana to treat his multiple
sclerosis, a disease he suffered from since 2002. Dr. Dennis
Petro, the defense expert, would have testified as to the medical
benefits of marijuana for those afflicted with multiple
sclerosis, of whom Mr. Wilson was one.
It is submitted that a reasonable interpretation of the
statute in question indicates that it allows a personal use
exemption for all facets of the manufacturing of marijuana. To
the extent that the wording and application of the applicable
statutes are unclear, this Court should construe the statutes to
provide for a personal use exemption to cover the situation
herein.
Manufacturing marijuana, N.J.S.A. 2C:35-5a(1), -5b(10)(b),
is one of a number of crimes proscribed by the Comprehensive Drug
Reform Act, N.J.S.A. 2C:35-1 et seq. (hereinafter “Drug Reform
Act”). The crime of manufacturing marijuana is proscribed in
pertinent part as follows:
a. [I]t shall be unlawful for any person
knowingly or purposely:
(1) To manufacture ... a controlled dangerous
substance ...
b. Any person who violates subsection a.
with respect to:
* * *
(10)(b) Marijuana in a quantity of five
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pounds or more but less than 25 pounds
including any adulterants or dilutants, or 10
or more but fewer than 50 marijuana plants,
regardless of wight ... is guilty of a crime
in the second degree. [N.J.S.A. 2C:35-5a(1),
-5b(10)(b)].
The term “manufacture” in the statute is defined in the Drug
Reform Act’s definitional section. In pertinent pert, the
definitional section provides:
“Manufacture” means the production,
preparation, propagation, compounding,
conversion, or processing of a controlled
dangerous substance or controlled substance
analog, either directly or by extraction from
substances of natural origin, or
independently by means of chemical synthesis,
or by a combination of extraction and
chemical synthesis, and includes any
packaging or repackaging of the substance or
labeling or relabeling of its container, ...
[N.J.S.A. 2C:35-2 (emphasis supplied)].
Immediately thereafter, the definition continues with a personal
use exception, as follows:
... except that this term does not include
the preparation or compounding of a
controlled dangerous substance or a
controlled substance analog by an individual
for his own use or the preparation,
compounding, packaging or labeling of a
controlled dangerous substance: (1) by a
practitioner as an incident to his
administering or dispensing of a controlled
dangerous substance of controlled substance
analogue, or (2) by a practitioner (or under
his supervision) for the purpose of, or as an
incident to, research, teaching or chemical
analysis and not for sale. [Ibid. (emphasis
supplied)].
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As for the six-term series underscored above in the
definition of “manufacture” (i.e., “production, preparation,
propagation, compounding, conversion, or processing”), the only
term specifically defined in the Drug Act’s definitional section
is “production,” which “includes the manufacture, planting,
cultivation, growing, or harvesting a controlled dangerous
substance or controlled substance analog.” Ibid. (emphasis
supplied). The other five terms in the series -- “preparation,
propagation, compounding, conversion, or processing” -- are not
specifically defined in the Drug Reform Act or anywhere else in
the Code of Criminal Justice. However, given their plain meaning
and association together in the six-term series with
“production,” they clearly were intended to encompass overlapping
facets of conduct involved in the production process of a
proscribed drug. Regarding the production process of marijuana,
the “planting, cultivation, growing, or harvesting” of the
substance, conduct which is statutorily defined as included in
the term “production,” would also be encompassed by the plain
meaning of the five other terms in the six-term series, namely
“preparation,” “propagation,” “compounding,” “conversion,” or
“processing.”
Of the six overlapping terms in the series constituting the
definition of “manufacture,” the personal use exception in the
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statute specifically exempts “preparation” and “compounding” of a
substance for personal use; it does not specify the “production,”
“propagation,” “conversion” or “processing” of the substance as
being exempt if personal use was intended. However, large-scale
marijuana cultivation obviously is encompassed by all six terms
in the series, including acts of “preparation” and “compounding.”
There does not appear any principled reason why the Legislature
would wish to exempt the “preparation” and “compounding” of large
amounts of marijuana for personal use but would not wish to
exempt other applicable aspects of the large scale production
process, such as “production,” “propagation, “conversion” and
“processing.” Indeed, such a differentiation could work an
absurd result, with large-scale growers being exempt from
prosecution under the manufacturing statute for the “preparation”
and “compounding” of multiple marijuana plants if such acts were
intended for personal use but at the same time being subject to
prison sentences ranging from five to 20 years for producing,
propagating, converting and processing the same plants for
personal use. N.J.S.A. 2C:35-5b(10)(a) (“manufacturing” more
than 50 plants a first degree crime); N.J.S.A. 2C:35-5b(10)(b)
(“manufacturing” more than 10 plants but less than 50 a second
degree crime)
The Legislature may not be presumed to have intended such an
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absurd result. State v. Gill, 47 N.J. 441 (1966). Indeed,
nothing in the legislative history suggests that such a result
was intended. The Drug Reform Act’s legislative history is
silent as to whether the Legislature intended a personal use
exemption to apply to only two of the six-term series of
overlapping facets of the large-scale production process. In
enacting the manufacturing statute, the Legislature simply copied
wholesale the complex definition for manufacturing set forth
above, including the personal use exception, from identical
language in the Uniform Controlled Dangerous Substances Act, sec.
101(13). See State v. Marshall, 136 N.M. 240, 243, 96 P.3d 80,
84 (N.M. App. 2004). The Legislature did so without providing a
corresponding explanatory statement of legislative purpose.
Given the arbitrary and unfair result of exempting two of
the statutorily defined facets of large scale personal-use
manufacturing of marijuana from prosecution under the
manufacturing statute while including the remaining four, as well
as the presumption that the Legislature would not have intended
such an absurd result, the Court should infer a legislative
intent to include the “production,” “propagation, “conversion”
and “processing” of marijuana under the personal use exemption
and construe the manufacturing statute accordingly. Such an
interpretation would require the State to disprove personal use
2 Various courts in other states which have enacted the
Uniform Controlled Dangerous Substances Act’s definition of
“manufacture” and its personal use exception have reached
contrary results in marijuana growing cases. See, e.g., Owens v.
State, 325 Ark. 110, 124, 926 S.W.2d 650, 658 (Ark. 1996);
People v. Pearson, 157 Mich.App. 68, 403 N.W.2d 498 (1987); State
v. Childers, 41 N.C.App. 729, 255 S.E.2d 654 (1979); State v.
County Court for Columbia County, 82 Wis.2d 401, 263 N.W.2d 162
(1978); but see, Bedell v. State, 257 Ark. 895, 521 S.W.2d 200
(1975), cert. denied, 430 U.S. 931, 97 S.Ct. 1552 (1977)
(defendant discovered growing 116 marijuana plants on several
fields; court committed reversible error in failing to give a
personal use exemption charge in jury instructions on the
manufacturing statute). These contrary opinions tend to be dated
and cursorily reasoned and presume a clear legislative intent
without any basis. None address the absurd result of arbitrarily
applying the exemption to two facets of the large-scale
production process but failing to exempt four other production
facets which clearly overlap. Thus, these out-of-state decisions
should not be considered authoritative in this case.
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for any of the six overlapping facets of production specified in
the manufacturing statute alleged by the State if evidence
suggested that personal use was intended.2 This interpretation
is also required by the need to construe penal statutes strictly
and the Legislature’s clear intention to limit the classification
of first and second degree drug offenses to conduct with a nexus
to distribution. Cf. State v. Sisler, 177 N.J. 199, 205-07
(2003) (in light of the grading of offenses related to child
pornography and the need for strict construction of penal
statutes, Court inferred additional element which the State
needed to prove to establish that a defendant “reproduced” child
pornography, a second degree crime, namely, that the defendant
-15-
“knowingly received the image for the purpose of selling it” or
“sold, displayed, or distributed the prohibited image to other
persons”). As the Supreme Court has declared, “when a criminal
statute is susceptible to two plausible interpretations we are
bound by our canons of construction to construe it in the light
most favorable to the accused.” Id. at 207, citing State v.
Livingston, 172 N.J. 209, 218 (2002).
The State may not contend that the Legislature, by
specifying the terms “preparation” and “compounding”, intended
the personal use exception to be used only in situations where
the defendant, “being already in possession, makes it ready for
use (i.e., rolling marijuana into cigarettes for smoking) or
combines it with other ingredients for use (i.e., making the
so-called “Alice B. Toklas” brownies containing marijuana).”
State v. Brown, 310 N.C. 563, 567, 313 S.E.2d 585, 588 (1984),
quoting State v. Childers, 41 N.C.App. 729, 732, 255 S.E.2d 654,
656 (1979). The Legislature could have specified such an
intention but did not do so. Indeed, there would be no reason to
exempt a large scale marijuana cultivator for preparing and
compounding large batches of marijuana into scores of marijuana
joints or large batches of “Alice B. Toklas” brownies for his own
use but subject him to first or second degree penalties for
watering, cutting, drying and otherwise cultivating the same
3 Construing the legislative intent to preclude the
absurdity discussed above would afford the Legislature the
opportunity to clarify the scope of its intentions regarding the
personal use exemption.
-16-
plants (“production,” “propagation, “conversion” and
“processing”). In light of the lack of legislative history to
support such a conclusion, it is just as reasonable to assume
that the Legislature simply incorporated large swathes of
language from the Uniform Controlled Dangerous Substances Act,
sec. 101(13), without contemplating the nuances of its
terminology, and that the Legislature, confronted with the absurd
consequences discussed above of the arbitrary and unfair
exemption of two of the statutorily defined facets of large-scale
personal-use manufacturing of drugs from prosecution while
including the remaining four, would intend the personal use
exception to apply to all six of the terms in the series of acts
defining “manufacturing.”3
Language in our Supreme Court’s opinion in State v.
Kittrell, 145 N.J. 112 (1996), supports such a conclusion. In
Kittrell, the Court indicated that the Legislature intended the
personal use exemption to be applicable to facets of the largescale
manufacturing process other than the “preparation” and
“compounding” of a controlled dangerous substance. The Court
declared that “a private residence used by its owner for the
-17-
preparation, compounding or conversion of [controlled dangerous
substances] ... would not fall within the meaning of a
‘production facility’ as used in [N.J.S.A. 2C:35-4] provided that
the substance was ‘manufactured’ by a single person solely for
his own use.” State v. Kittrell, 145 N.J. at 124 (emphasis
supplied), quoting Cannel, New Jersey Criminal Code Annotated
(1987), Comment, N.J.S.A. 2C:35-4. Thus, the Court was
indicating that the term “conversion” would be eligible for a
personal use defense under the manufacturing statute even though
it was not specified as an act qualifying for personal use
exemption in N.J.S.A. 2C:35-2.
In finding that the defendant was properly convicted under
N.J.S.A. 2C:35-4 for maintaining a facility to “manufacture”
drugs, the Kittrell Court held that “[t]he Commentary
specifically indicates that individuals who use private
residences to prepare drugs for commercial distribution to others
are eligible for prosecution.” State v. Kittrell, 145 N.J. at
133 (emphasis in the original). The Court observed that the
statute in conjunction with its Commentary “indicate[d] that the
Legislature intention to criminalize the production of controlled
dangerous substances for distribution in any premises... .” Id.
at 135. Thus, Kittrell indicated that the Legislature in
addressing the problem of the “manufacture” of drugs was focusing
-18-
on the distribution of the substances manufactured.
Clearly, a reading of Kittrell in conjunction with the text
of the manufacturing statute indicates that at least three of the
modes of “manufacture” listed in the definition of that word,
i.e., preparation, compounding, conversion, have already been
specified as being eligible for a personal use defense.
Regarding marijuana, it is inconceivable that the Legislature,
given its focus on the distribution of illicit drugs which have
been manufactured, would permit a person who prepares, compounds
and converts marijuana on a large scale to assert a personal use
defense to a charge of manufacturing but would not allow him to
raise such a defense to a charge of producing, propagating or
processing the same plants. There is no valid distinction
between a person who grows and otherwise cultivates multiple
marijuana plants solely for his own use and one who prepares,
compounds or converts those same plants, again for his own use,
by removing the leaves from their stems, preparing the leaves for
use or packaging them. Accordingly, it should be concluded that
the Legislature intended a personal use exemption to apply to all
facets of the manufacturing process specified in the definition
of manufacturing.
For the foregoing reasons, Mr. Wilson should have been
allowed to argue personal use as a defense to the charge of
-19-
manufacturing marijuana, and the trial court erred by denying him
that opportunity. Therefore, Mr. Wilson’s conviction for
manufacturing marijuana must be reversed.
POINT II
THE TRIAL COURT ERRED BY BARRING THE DEFENSE
EXPERT, DR. DENNIS PETRO, FROM TESTIFYING
ABOUT THE BENEFICIAL EFFECT OF MARIJUANA ON
MULTIPLE SCLEROSIS AND BY PRECLUDING MR.
WILSON FROM REFERRING TO HIS MULTIPLE
SCLEROSIS.
The trial court ruled that Mr. Wilson could not advise the
jury that he suffers from multiple sclerosis and he was growing
the marijuana to treat that disease because that fact was not
relevant to the charges pending against him. (2T22-7 to 30-25;
Da30 to 36). The trial court also barred the defense expert, Dr.
Dennis J. Petro, M.D., from testifying that Mr. Wilson in fact
was afflicted with multiple sclerosis and opining as to the
medical benefits of marijuana in the treatment of multiple
sclerosis symptoms. (2T22-7 to 30-25; Da30 to 36).
Mr. Wilson asserts that he was entitled to assert a personal
use defense for the reasons discussed in Point I, supra. As this
was the case, Mr. Wilson’s multiple sclerosis was relevant, as it
provided the basis of why he needed the quantity of marijuana he
was growing for his personal use. Accordingly, the decision of
the trial court to bar Dr. Petro’s testimony regarding Mr.
Wilson’s condition and the beneficial effects of marijuana on
-20-
multiple sclerosis and Mr. Wilson’s testimony regarding his
multiple sclerosis was clearly erroneous.
In barring Dr. Petro’s testimony as to the beneficial
effects of marijuana on Mr. Wilson’s multiple sclerosis and Mr.
Wilson’s testimony regarding his illness, the trial court opined
that its rulings were required to prevent jury nullification.
(2T22-7 to 30-25; Da30 to 36). However, the possibility of jury
nullification was only speculative.
Furthermore, regardless of the potential for nullification,
a defendant has a constitutional right to “a meaningful
opportunity to present a complete defense.” Crane v. Kentucky,
476 U.S. 683, 690, 106 S.Ct. 2142, 2146 (1986). This right is
safeguarded under the United States Constitution by the
Fourteenth Amendment’s Due Process Clause and the Sixth
Amendment’s Compulsory Process Clause, as well as Art. I, Par. 10
of our state constitution. Ibid., citing California v.
Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532 (1984); State
v. Savage, 120 N.J. 594, 627-28 (1990). By presenting witnesses
and evidence pursuant to this right and eliciting favorable
information from them, a defendant is able to put the State
through the task of encountering and “surviv[ing] the crucible of
meaningful adversarial testing.” Crane v. Kentucky, 476 U.S. at
690-691. See also, Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107
-21-
S.Ct. 989, 1001 (1987); Chambers v. Mississippi, 410 U.S. 284,
302, 93 S.Ct. 1038, 1049 (1973).
The trial court’s concern with jury nullification should not
have outweighed Mr. Wilson’s right to a fair trial. Courts do
not have the power to prevent jury nullification on jury leniency
grounds when the consequence of doing so is to deny the defendant
a valid defense. State v. Banko, 182 N.J. 44, 54 (2004); State
v. Ragland, 105 N.J. 189, 204-05 (1986). Courts must accept the
power of the jury to nullify because jurors in our system are
trusted to understand and apply the law. Indeed, courts have
recognized that the jury serves “as the conscience of the
community and the embodiment of the common sense and feelings
reflective of society as a whole.” State v. Ingenito, 87 N.J.
204, 212 (1981); State v. Maldonado, 137 N.J. 536, 569-70 (1994).
Courts are not permitted to speculate on whether a jury verdict
is the result of a mistake, compromise, or lenity. State v.
Muhammad, 182 N.J. 551 (2005); State v. Grey, 147 N.J. 4 (1996).
Courts simply do not have the power to take measures to prevent
jury nullification or jury leniency grounds. State v. Banko, 182
N.J. at 54; State v. Ragland, 105 N.J. at 204-05, especially when
to do so would have the consequence of denying a defendant his
constitutional right to pursue a valid defense. Thus, Mr.
Wilson should have been afforded his right to present a multiple
-22-
sclerosis-based personal use defense to the charges in this
matter, regardless of the potential that the testimony in support
of such a defense would encourage sympathy and lead to
nullification.
Clearly, the court’s errors in restricting Dr. Petro’s and
Mr. Wilson’s testimonies regarding the beneficial use of
marijuana on Mr. Wilson’s multiple sclerosis was reversible
error. As a consequence of the court’s errors, Mr. Wilson was
precluded from presenting evidence which would have established a
viable defense with great chances of success to the manufacturing
charge. Mr. Wilson was clearly deprived of his fundamental right
to “a meaningful opportunity to present a complete defense.”
Crane v. Kentucky, 476 U.S. at 690, 106 S.Ct. at 2146.
Furthermore, Mr. Wilson was unfairly denied an opportunity
to counter an inference from the State’s evidence that he was a
sophisticated grower who was cultivating a substantial amount of
marijuana to make money. The State’s expert, Sgt. Peacock,
testified that all of Mr. Wilson’s plants were female and that
commercial growers preferred such plants because they were of a
higher quality and thus were more profitable. (5T78-20 to 79-5;
5T93-23 to 94-2). He opined that Mr. Wilson was growing
marijuana to sell or smoke or both. (5T96-4 to 9).
On cross-examination of Mr. Wilson, the State questioned him
-23-
about the size of his plants and why he had no male plants. In
response to this line of questioning, Mr. Wilson was limited by
the trial court to explain that he grew multiple pounds of
marijuana simply because he smoked marijuana daily. (5T159-24 to
162-7).
As a consequence of Sgt. Peacock’s opinions, the State’s
questions to Mr. Wilson and the court’s limitation on Mr.
Wilson’s responses, the jury was left with the impression that
Mr. Wilson was growing multiple pound of marijuana of a sex
consistent with commercial distribution with no other possible
purpose than the desire to earn a large profit from drug dealing.
This inference was highly prejudicial, all the more so because
there was an alternate, benign reason for Mr. Wilson’s activities
which plainly was substantiated by Dr. Petro’s affidavit. (Da20
to 22). The court’s preclusion of Mr. Wilson from countering the
inflammatory inference that he was engaging in large scale
commercial drug distribution with evidence that he was growing
his plants to counter the effects of a debilitating illness was
grossly unfair and denied Mr. Wilson a fair trial.
For the foregoing reasons, the court’s preclusion of Dr.
Petro from testifying regarding the beneficial effects of
marijuana on multiple sclerosis and that Mr. Wilson in fact was
afflicted with this disease and its barring of Mr. Wilson from
-24-
referring to his illness as the reason for his marijuana
cultivation was reversible error. Accordingly, Mr. Wilson’s
conviction for manufacturing marijuana must be reversed.
POINT III
MR. WILSON’S SENTENCE IS MANIFESTLY EXCESSIVE.
Mr. Wilson’s aggregate sentence of five years imprisonment
for growing marijuana to treat his multiple sclerosis is
manifestly excessive. The presumption of imprisonment in this
matter for second degree offenses clearly was overcome and Mr.
Wilson should have been sentenced to a period of probation. In
this regard, the quality of the extraordinary mitigating factors,
State v. Evers, 175 N.J. 355 (2003), as outlined below, and New
Jersey’s recent legalization of the medical use of marijuana to
treat the symptoms of multiple sclerosis rendered Mr. Wilson’s
imprisonment a serious injustice which overrode the need to deter
him and others in this matter. N.J.S.A. 2C:44-1d; State v.
Jabbour, 118 N.J. 1 (1990), and State v. E.R., 273 N.J. Super.
262 (App. Div. 1994).
It is axiomatic that the “[p]ronouncement of judgment of
sentence is among the most solemn and serious responsibilities of
a trial court. No word formula will ever eliminate this
requirement that justice be done.” State v. Roth, 95 N.J. 334,
365 (1984). Accordingly, the New Jersey Supreme Court in State
-25-
v. Roth, supra, and State v. Hodge, 95 N.J. 369 (1984), ruled
that an appellate court may reverse a sentence if a trial court,
in applying the Code’s sentencing guidelines to the relevant
facts, “clearly erred by reaching a conclusion that could not
have reasonably been made upon a weighing of the relevant
factors.” State v. Roth, 95 N.J. at 365-66.
Mr. Wilson acknowledges that a presumption of imprisonment
existed by virtue of his conviction for a second degree offense.
N.J.S.A. 2C:44-1d. However, the presumption of imprisonment was
not mandatory. Trial courts retain a “residuum of power ... not
to imprison in those few cases where it would be entirely
inappropriate to do so.” Ibid.; State v. Jabbour, 118 N.J. at 7;
State v. Jarbath, 114 N.J. 394, 407-08 (1989); State v. Roth, 95
N.J. at 358; Final Report of the New Jersey Criminal Law Revision
Commission § 2C:44-1, commentary at 326 (1971). To avoid the
presumption of imprisonment applicable to first or second degree
offenses, the trial court needed to find, “having regard to the
character and condition of the defendant, that it was of the
opinion that his imprisonment would be a serious injustice which
overrides the need to deter such conduct by others.” N.J.S.A.
2C:44-1d.
In State v. Evers, supra, the New Jersey Supreme Court
prescribed the standard and method of analysis for determining
-26-
when the presumption of incarceration is overcome. The Court
observed initially that “[i]n permitting consideration of ‘the
character and condition of the defendant’ in determining whether
imprisonment would be a ‘serious injustice,’ the Code left ‘a
residuum of power in the sentencing court not to imprison in
those few cases where it would be entirely inappropriate to do
so.’” Id., 175 N.J. at 389, quoting State v. Roth, 95 N.J. at
358. The Court declared “that this residuum of power may be
legitimately exercised in those ‘truly extraordinary and
unanticipated’ cases where the ‘human cost’ of punishing a
particular defendant to deter others from committing his offense
would be ‘too great.’” State v. Evers, 175 N.J. at 389, quoting
State v. Rivera, 124 N.J. 122, 125 (1991), and State v. Roth, 95
N.J. at 358.
The Court observed by way of illustration that it had
earlier ruled the presumption overcome in the case of a severely
mentally retarded woman who was repeatedly abused and had
attempted suicide in prison after being charged with manslaughter
for killing her baby by twice accidentally dropping it on a
table. State v. Evers, 175 N.J. at 389-90, citing State v.
Jarbath, 114 N.J. at 408. In Jarbath, the Court had determined
that the defendant, due to her impaired condition, could not
“endure life in prison without unusual suffering” and privation
-27-
that greatly exceeded what a relatively normal person could bear
under similar circumstances;” that “general deterrence unrelated
to specific deterrence has relatively insignificant penal value,”
and that “the character and condition of the defendant [were] so
idiosyncratic that incarceration or extended imprisonment for the
purposes of general deterrence [was] not warranted.” State v.
Evers, 175 N.J. at 389-90, quoting State v. Jarbath, 114 N.J. at
408. The Evers Court observed that in other cases in which the
presumption was ruled not to have been overcome, the defendant
had not been able to demonstrate idiosyncratic features which
were so unique that they sufficiently outweighed the need for
specific and general deterrence in the particular case. State v.
Evers, 175 N.J. at 392. Accordingly, the Court held that a
sentencing court must determine whether the “character and
condition” of a defendant is “so unusual or unique,” compared
“with the class of defendants facing similar terms of
incarceration,” that imprisonment “would be a ‘serious injustice’
overriding the State’s paramount concern for deterrence.” Ibid.
The Evers Court declared that the analytical framework for
determining whether the presumption is overcome is provided by
the Code’s sentencing provisions. Ibid. The Court specifically
focused on the mitigating sentencing factors set forth in
N.J.S.A. 2C:44-1b as “factors to be considered in determining
-28-
whether the ‘character and condition’ of a defendant is so highly
unusual or unique as to meet the ‘serious injustice’ standard,”
observing that the Code’s aggravating and mitigating factors are
expressly applied by the Code in multiple sentencing
determinations. State v. Evers, 175 N.J. at 392-93.
The Court declared that in deciding whether the “character
and condition” of a defendant meets the “serious injustice”
standard, a trial court should determine “whether there is clear
and convincing evidence that there are relevant mitigating
factors present to an extraordinary degree and, if so, whether
cumulatively, they so greatly exceed any aggravating factors that
imprisonment would constitute a serious injustice overriding the
need for deterrence.” Id. at 393-94. The Court indicted that it
was the “the quality of the factor or factors and their
uniqueness in the particular setting” which needed to be weighed
together. Id. at 394-95.
Regarding the assessment of the need for deterrence in the
weighing process, the Evers Court stressed that “a violation of a
criminal statute may be more or less egregious depending on the
particular facts.” Id. at 394. In this regard, the Court
previously had declared: “In evaluating the severity of the
crime, the trial court must consider the nature of and the
relevant circumstances pertaining to the offense. Every offense
-29-
arises in different factual circumstances.” Ibid., quoting State
v. Megargel, 143 N.J. 484, 500 (1996). The fact that general
deterrence will be furthered by imprisonment in and of itself is
not dispositive: “[r]arely will general deterrence not be
furthered by imprisonment for serious crimes.” State v. Jabbour,
118 N.J. at 7. Accordingly, the Evers Court observed that the
severely retarded defendant’s conduct in Jarbath had been
accidental, and that the Court had decided that case by weighing
“the level of her culpability on the continuum of reckless
manslaughter.” State v. Evers, 175 N.J. at 390, 394.
To summarize the test, the Evers Court declared:
Accordingly, trial courts should look to the
statutory sentencing mitigating factors and
determine whether those factors are present
to such an extraordinary degree and so
greatly exceed the aggravating factors that a
particular defendant is distinguished from
the “heartland” of cases for the particular
offense. See U.S. Sentencing Guidelines
Manual § 5K2.0 cmt. (2001) (discussing
grounds for departure from sentencing range
established by applicable guidelines). It is
the quality of the extraordinary mitigating
factors taken together that must be weighed
in deciding whether the “serious injustice”
standard has been met. The trial court also
must look at the gravity of the offense with
respect to the peculiar facts of a case to
determine how paramount deterrence will be in
the equation. [State v. Evers, 175 N.J. at
394-95].
The Evers Court recognized that the test for overcoming the
presumption of incarceration imposed a “heavy burden” on a
-30-
defendant. Id. at 392. The Court proceeded to rule that the
defendant in that case, accused of distributing child pornography
over the internet and 40 counts of possession of child
pornography, had not overcome the presumption because the
sentencing court had relied upon mitigating factors which were
inapplicable or not sufficiently supported by the record. State
v. Evers, 175 N.J. at 395-401. However, the Court stressed,
[t]he decision we reach in this case should
not suggest that the serious injustice
standard can only be met by a mentally
retarded defendant with little appreciation
of his or her wrong-doing or by a terminallyill
AIDS patient. Although it may be the
rare case that satisfies the “serious
injustice” standard, trial courts need not be
afraid to examine whether the character and
condition of a defendant in a particular case
meet this rigorous test. [Id. at 401
(emphasis supplied)].
In applying the Evers test to this case, it is clear that
the presumption of incarceration was overcome. The sum of Mr.
Wilson’s character and the level of his culpability should have
led the trial court to conclude that Mr. Wilson’s imprisonment
would constitute a serious injustice outweighing the “needs of
general deterrence.” Id. at 390, quoting State v. Jarbath, 114
N.J. at 408-09. See also, State v. E.R., 273 N.J. Super. at 265,
273-74 (affirming resentencing of defendant with full-blown AIDS
who plead guilty to a second degree possession of pipe bombs from
seven-year-custodial to five-year-probationary term, where
-31-
imprisonment would entail excessive hardship to defendant because
specific deterrence was no longer consideration in light of his
undisputed physical incapacity and imminent death within six
months).
In considering first the “needs for general deterrence,” it
is highly unlikely that the imprisonment of Mr. Wilson would be
the type of example needed to deter other similarly situated
individuals from engaging in criminal activity such as that
charged against Mr. Wilson. This is especially true as the New
Jersey Legislature has eliminated the need for Mr. Wilson and
others to produce their own marijuana for their medical needs in
recently enacting the “New Jersey Compassionate Use Medical
Marijuana Act,” N.J.S.A. 24:6I-1 et seq., which was designed “to
protect from arrest, prosecution, property forfeiture, and
criminal and other penalties, those patients who use marijuana to
alleviate suffering from debilitating medical conditions,”
N.J.S.A. 24:6I-2e, by authorizing such persons to obtain up to
two ounces of marijuana per month from a “medical marijuana
alternative treatment center,” N.J.S.A. 24:6I-10a.
Admittedly, in determining the role that deterrence should
play in the serious injustice standard, the trial court was
required to be mindful of the presumption of imprisonment for
those convicted of first and second degree crimes. N.J.S.A.
-32-
2C:44-1b. However, a violation of a criminal statute may be more
or less egregious depending on the particular facts. “In
evaluating the severity of the crime, the trial court must
consider the nature of and the relevant circumstances pertaining
to the offense. Every offense arises in different factual
circumstances.” State v. Evers, 175 N.J. at 394. Accordingly,
the trial court was compelled to evaluate Mr. Wilson’s crime
within the context of the statutory mitigating sentencing factors
to determine whether those factor were present to such an
extraordinary degree and so greatly exceeded the aggravating
factors that Mr. Wilson situation was distinguished from the
“heartland” of cases for the particular offense. Id. at 394-95,
citing U.S. Sentencing Guidelines Manual, § 5K2.0 cmt. (2001)
(discussing grounds for departure from sentencing range
established by applicable guidelines). It is the quality of the
extraordinary mitigating factors taken together that must be
weighed in deciding the gravity of the offense with respect to
the peculiar facts of a case to determine how paramount
deterrence will be in the equation. State v. Evers, 175 N.J. at
394-95.
In this matter, it is unquestioned from the affidavit of Dr.
Petro that Mr. Wilson in fact was afflicted with multiple
sclerosis, a disease he suffered from for many years, and that
-33-
the ingestion of marijuana was a beneficial treatment for his
symptoms. (Da20 to 22; PSR; Da47 to 59). Moreover, the
Legislature has ratified the use of marijuana to treat Mr.
Wilson’s multiple sclerosis. N.J.S.A. 24:6I-3.
Furthermore, it is unquestioned that Mr. Wilson was growing
the marijuana only to treat his multiple sclerosis. The facts
presented at trial set forth absolutely no evidence that he
intended to sell or even share the marijuana. Mr. Wilson’s use
of marijuana for medical purposes was confirmed by numerous
letters submitted to the trial court, including one from a juror
asking for leniency. (Da47 to 77).
A review of the applicable statutory mitigating factors as
they apply to these facts decisively indicates that the numerous
mitigating factors clearly outweighed any aggravating factor
which arguably might have applied and, based on their quantity
and unique and unusual features, warranted a sentence of
probation. It is submitted that the following statutory
mitigating factors should have been found by the trial court to
apply to John Wilson.
N.J.S.A. 2C:44-1b(1). Mr. Wilson’s conduct neither caused
nor threatened serious harm. In this regard, there is no
evidence that Mr. Wilson intended to distribute the marijuana to
anyone else. The trial court’s claim that the probation officer
-34-
noted that Mr. Wilson acted for financial gain is totally
unsupported by the Presentence Report and record. (PSR).
N.J.S.A. 2C:44-1b(2). Mr. Wilson did not contemplate that
his conduct would cause or threaten serious harm. Again, there
is no evidence that Mr. Wilson intended to distribute the
marijuana to anyone else.
N.J.S.A. 2C:44-1b(3). Mr. Wilson acted under a strong
provocation, the need to treat the debilitating symptoms of
multiple sclerosis.
N.J.S.A. 2c:44-1b(4). Substantial grounds tended to excuse
Mr. Wilson’s conduct. His behavior was a result of his need to
self-medicate his multiple sclerosis with marijuana. At the time
of Mr. Wilson’s conduct, there was no lawful means to obtain a
substance he needed to obtain relief from the pain, muscle spasms
and other symptoms of his disease. The method chosen by Mr.
Wilson to obtain his medical relief, growing the marijuana he
intended to use, did not pose the additional harm which would
have resulted if Mr. Wilson had fostered the illicit commercial
marijuana industry by purchasing the substance from criminal
elements.
N.J.S.A. 2C:44-1b(7). Mr. Wilson has no prior indictable
convictions.
N.J.S.A. 2C:44-1b(8). The conduct of Mr. Wilson in this
-35-
matter was the result of circumstances that are unlikely to recur
as a result of the passage of the Compassionate Use Medical
Marijuana Act, which now permits him to obtain and use marijuana
lawfully to treat his multiple sclerosis.
N.J.S.A. 2C:44-1b(9). The character and attitude of Mr.
Wilson indicate that he is unlikely to commit another offense.
The record indicates the Mr. Wilson only grew the marijuana in
this case to treat his illness. The trial court’s statement that
Mr. Wilson was a habitual user of marijuana (7T34-4 to 7) is not
supported by the Presentence Report or the record. (PSR; Da47 to
77).
N.J.S.A. 2C:44-1b(10). Mr. Wilson is particularly likely to
respond affirmatively to probationary treatment. He readily
cooperated with the State Police when they came to his property
by acknowledging the marijuana on the premises and making no
attempt to destroy evidence.
N.J.S.A. 2C:44-1b(11). Imprisonment would entail extreme
hardship to Mr. Wilson as a result of his incurable, medical
condition, as evident from the letter of Dr. Petro dated January
26, 2010. (Da47 to 59).
Mr. Wilson submits that the trial court should not have
concluded that any aggravating factor applied. The trial court
found aggravating factor 3, N.J.S.A. 2C:44-1a(3), the risk that
-36-
defendant would commit another offense. The record is barren of
any facts to support this finding. In reality, Mr. Wilson was
growing marijuana only to treat his multiple sclerosis and now is
unlikely to repeat his conduct because the enactment of the
Compassionate Use Medical Marijuana Act will enable him to
lawfully obtain marijuana for this purpose.
The trial court also found aggravating factor 6, N.J.S.A.
2C:44-1a(6), the extent of defendant’s prior record and
seriousness of the offense. However, the finding of this factor
was unjustified as well. Mr. Wilson had no indictable
convictions and one prior conviction of a disorderly person
offense, for harassment, in 2004. (PSR).
Finally, the need to deter defendant and others, N.J.S.A.
2C:44-1a(9), did not exist in this case as a result of the recent
enactment of the Compassionate Use Medical Marijuana Act.
Indeed, it should be noted that general deterrence unrelated to
specific deterrence has relatively insignificant penal value.
State v. Gardner, 113 N.J. 510, 520 (1989); State v. Jarbath, 114
N.J. 394, 405 (1989); State v. Rosado, 256 N.J. Super. 126, 130-
31 (App. Div. 1992). In this matter, in light of the recent
change in the law regarding medical marijuana, there exists no
special need to deter Mr. Wilson. Cf. State v. Martelli, 201
N.J. Super. 378, 385-86 (App. Div. 1985) (re-sentencing ordered
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in part because the record did not disclose “what special need
for deterrence or non-depreciation of the offense differentiates
this case from other cases.... in its class”).
It is submitted that the quality of the relevant mitigating
factors greatly exceed any arguable aggravating factor, and that
the “human cost” of punishing Mr. Wilson would be too great to
allow a prison sentence. It must be recognized that the second
degree offense involved herein, growing marijuana for personal
medical reasons, is totally different than all the other first
and second degree drug offenses which are all premised upon the
distribution of a controlled dangerous substance. Mr. Wilson is
that unique individual who manufactured marijuana only to treat
his suffering from multiple sclerosis and could not endure state
prison without unusual suffering which greatly exceeds what a
normal person could bear.
In light of the aforementioned, this case is one of the rare
cases in which the human cost of incarceration outweighs the need
to deter and a term of non-custodial probation is appropriate.
Therefore, the trial court’s sentence is manifestly excessive and
must be vacated.
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CONCLUSION
For the foregoing reasons, it is respectfully requested that
defendant-appellant’s conviction for manufacturing be reversed.
Alternatively, the matter should be remanded for sentencing.
Respectfully submitted,
WRONKO & LOEWEN, ESQS.
Attorneys for Defendant-Appellant
By: _______________________
James R. Wronko, Esq.
JAMES R. WRONKO, ESQ.
OF COUNSEL AND ON THE BRIEF
GILBERT G. MILLER, ESQ.
ON THE BRIEF
Dated: August 2, 2010
