On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication May 18, 1995.
Before Judges Braithwaite and Bilder. The opinion of the court was delivered by Bilder, J.A.D. (retired and temporarily assigned on recall).
The opinion of the court was delivered by: Bilder
BILDER, J.A.D. (retired and temporarily assigned on recall).
Although in the form of an appeal from a judgment of conviction as an adult, this is in fact an appeal by a defendant who is now a few months short of 19 from the order of the Family Part transferring jurisdiction of the criminal charges pending against him to the Law Division pursuant to N.J.S.A. 2A:4A-26. *fn1 Following that transfer and indictment on charges of armed robbery, N.J.S.A. 2C:15-1, aggravated assault, N.J.S.A. 2C:12-1b(4), conspiracy, N.J.S.A. 2C:5-2, possession of a tear gas gun with purpose to use it unlawfully against another, N.J.S.A. 2C:39-4a, and unlawful possession of a tear gas gun, N.J.S.A. 2C:39-5b, defendant pled guilty to second degree conspiracy to commit armed robbery. The plea was entered as part of an agreement whereby defendant reserved his right to challenge the jurisdiction waiver, see R. 3:9-3(f), and the State agreed to accept a plea to second degree conspiracy as a lesser offense, *fn2 to recommend the dismissal of the remaining counts of the indictment as well as a separate indictment that charged defendant with escape, *fn3 and to recommend that any custodial sentence not exceed an indeterminate term of 5 years.
On November 5, 1992, defendant was sentenced in accordance with that agreement to the Garden State Reception and Youth Correctional Facility for an indeterminate term not to exceed 5 years and the other charges were dismissed. Defendant was 16 at the time of the offense, 16 1/2 at the time of the waiver hearings, and almost 17 1/2 at the time of sentencing. On June 28, 1995 he will be 19.
On appeal defendant challenges the propriety of the waiver hearing, contending that his counsel's assistance was so deficient as to have deprived him of his sixth amendment right to counsel. See Strickland v. Washington, 466 U.S.668, 687, 690, 104 S. Ct. 2052, 2064, 2066, 80 L. Ed. 2d 674, 693, 695 (1984); State v. Fritz, 105 N.J. 42, 60-61, 519 A.2d 336 (1987). He seeks a remand to the Family Part for a new hearing. In his brief on appeal, defendant makes the following contention:
THE COURT MUST REMAND THE MATTER TO THE FAMILY COURT FOR A NEW JURISDICTIONAL HEARING BECAUSE THE JUVENILE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
The waiver hearing was conducted in two parts. Defendant makes no challenge to the determination made in the first part that there was probable cause to believe he committed delinquent acts which, if committed by an adult, would constitute an armed robbery. See N.J.S.A. 2A:4A-26a(2). His challenge is to the second phase in which he had the burden of showing his rehabilitativeness; that "the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to [his] reaching the age of 19 substantially outweighs the reasons for waiver". N.J.S.A. 2A:4A-26a(3).
An examination of the second phase hearing shows that defendant's counsel offered no witnesses and confined himself solely to a summation. That summation, set forth in its entirety in the footnote, made no case for rehabilitation. *fn4 We agree with the characterization subsequent defense counsel made at the sentencing: "There was a complete folding on the phase two as to whether Mr. Jack could be rehabilitated." Moreover, in an affidavit submitted at the time of sentencing, defendant contends he was never advised that he could testify on his own behalf and that others might testify for him.
We find two serious deficiencies which require that the matter be remanded to the Family Part for a rehearing as to whether defendant's case should be waived to the Law Division for trial as an adult. See State v. Ferguson, 255 N.J. Super. 530, 544, 605 A.2d 765 (App. Div. 1992). First, as in Ferguson, there is a serious issue as to whether counsel informed defendant that he and others had a right to testify at the waiver hearing; *fn5 clearly defendant did not testify and offered no witnesses. Second, and more importantly, an examination of the sentencing transcript discloses that significant material contained in the pre-sentence report was accepted by the trial Judge and led him to conclude that the mitigating factors sufficiently outweighed the aggravating factors as to impose what he considered to be a sentence on an offense one degree lower than that for which he had been indicted. Implicit in the sentencing Judge's remarks are notions of defendant's rehabilitatibility.
He's got a bright future ahead of him. He's not a bad person but he's done some terrible things. And he's got to answer for the terrible things he's done.
As in Ferguson, we are convinced defendant had inadequate assistance of counsel at this critical stage and the interests of Justice require a new waiver hearing with the ...