Before Judges Skillman, D'Annunzio and Newman.
The opinion of the court was delivered by: D'annunzio, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Defendant was tried in absentia under Bergen County Indictment No. S-1327-93. He was convicted of possession of five ounces or more of cocaine with intent to distribute it and possession of a handgun without a permit. The court sentenced defendant to an extended term of thirty years' imprisonment with ten years of parole ineligibility for the drug offense and to a concurrent four-year prison term for the gun offense.
On direct appeal to this court we addressed, in an unreported opinion, defendant's contention that he had been wrongfully tried in absentia. State v. Sellars, No. A-5494-95T4 (App. Div. Apr. 27, 1998) (Sellars I). We summarize the facts in the record at that time.
Sellars, a North Carolina resident, was released on bail pending trial. He appeared and was tried in November 1995. A mistrial was declared, owing to discovery problems. Defendant did not attend a January 1996 status conference, having been told by counsel that his attendance was unnecessary. Defendant had been advised previously by the judge in open court, however, that failure to appear for a scheduled trial on any subsequent trial date would present cause for bail forfeiture, arrest, and for proceeding with the trial in defendant's absence.
Although the record does not disclose whether a trial date was fixed at the January 1996 status conference, it appears that defense counsel and the State were aware that the trial was listed for March 11, 1996, and then placed on the trial judge's calendar for March 12.
The record discloses that on March 12, the trial judge, apparently just informed by counsel that defendant was not present, initiated a telephone call to defendant, on the record, in the presence of his counsel and the assistant prosecutor. No oaths were administered. Among other things, the judge sought to explore defendant's contention that he had just learned of the trial date and needed "like a week ahead of time" to arrange to come up for the trial. Defense counsel had represented that although she wrote to defendant earlier to advise of the trial date, she could not reach him at the telephone number maintained for defendant in her file. Defendant explained that he had received no letter, that the telephone number used by his counsel had been changed two years earlier, but that his current number was the same as it was before the November 1995 trial (when counsel was evidently able to contact him in timely fashion). Counsel said the new number "wasn't in the computer," and that she was told by "information . . . as of last night" (i.e., March 11) that a number for "Sellers" [sic] at defendant's address was unlisted and could not be given out.
It is not clear how the correct number was provided for initiation of the March 12 telephone call by the trial judge. However, defendant was informed that he was expected to be in court, ready for trial at 9:00 a.m. on the following day, March 13, or the trial would proceed in his absence. The judge suggested that defendant could waive his presence at jury selection, thus giving him one extra day to come to New Jersey. Although conveying a general sense of practical inconvenience, defendant expressed no definitive reason why he could not possibly be in New Jersey on the following day. He expressly disavowed any waiver of his right to be present at jury selection.
Both counsel then proceeded to the assignment judge, who denied defense counsel's request for an adjournment because the defendant was supposed to be on call, there was still enough time for the defendant to travel from North Carolina to New Jersey, the trial judge had advised the defendant that trial would commence on March 13 at 9:00 a.m. during the above referenced telephone proceeding, and it was a 1993 indictment.
Defense counsel represented to the assignment judge that after the mistrial, her client was kept on call, but that "it was up to me to notify him of the trial date and yours truly goofed." She also said that although defendant was told by the trial judge to appear and that the trial would commence on March 13, he said he could not come up and he would be glad to come up on another day. He had no, no money. Because he didn't have time to gather his resources he didn't have any means of transportation.
Jury selection began on [Wednesday], March 13. The trial was concluded on [Friday], March 15. Defendant did not appear at any time during the trial. Defendant, however, did appear on Monday, March 18. At that time, the court continued defendant's bail status and established a sentencing date. Defendant appeared for sentencing.
Defense counsel did not move under R. 3:20-1 for a new trial. This is significant because R. 3:20-2 provides in part: "A motion for a new trial based on a claim that the defendant did not waive his or her appearance for trial shall be made prior to sentencing."
In Sellars I, defendant contended that the court erred in trying him in absentia. He also contended that his "trial counsel's ineffective assistance resulted in his being tried in absentia." In light of these contentions, we made this observation:
Here, however there were factors asserted which, if factually explored under oath, either before trial or upon timely motion for new trial under R. 3:20-2, might have demonstrated that: (a) defendant did not receive a letter or call from counsel informing him of the new trial date until, literally, the eve of trial; (b) that counsel did in fact "goof," as she asserted, by failing to ascertain defendant's correct phone number which was apparently capable of discovery, and by waiting until the last minute to re-establish contact with the defendant; (c) that although defendant had actual notice from the judge of the new trial date in time for him physically to reach the New Jersey court by car, air, train or bus, he did not, as represented by counsel, have the money or ability to do so on such short notice. Those facts were not established before the assignment judge, nor in the brief telephonic proceeding conducted by the trial judge. The issues ought to have been more thoroughly explored. [Sellars I (slip op. at 5-6).]
We also noted that trial counsel's failure to move for a new trial prior to sentencing could constitute ineffective assistance, especially in light of R. 3:20-2.
Although we affirmed the judgment, "[a]s no R. 3:20-2 motion was made," we directed "that a R. 3:22 post-conviction relief evidential proceeding be conducted in which the factual issues above referenced shall be explored." We also directed the motion judge to determine whether the facts . . . respecting time of notice, and defendant's inability to travel on short notice are sufficient to render justifiable defendant's non-appearance for trial . . . despite the trial judge's telephonic notification on March 12. If so, there could have been no proper waiver. If there was no effective waiver under R. 3:16(b)(1), then counsel's failure to move under R. 3:20-2 would indeed satisfy both Strickland-Fritz prongs, as the non-waiver of [the] right to be present at trial was not remedied. [Sellars I (slip op. at 8).]
The hearing took place on September 11, 1998. Defendant and his trial counsel were the only witnesses.
Trial counsel testified that defendant had always appeared in court when he was required to appear. She noted that defendant was present for the November 1995 trial, which ended in a mistrial. Thereafter, because defendant lived in North Carolina, his appearance for a January 2, 1996 status conference was excused. At the status conference, the case was scheduled for trial during the week of March 11, 1996, March 11 being the calendar-call date. The testimony established that defendant's presence was not required on March 11.
Trial counsel then testified:
Q Between January 2nd and March 11th or 12th did you speak with the defendant?
A Yes. And I know I wrote him a letter.
Q You recall giving him a phone call?
Q He called you. When did he call you?
A I don't know. I know that I spoke to him a couple of times ...