On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-04-1749.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2007
Before Judges Cuff, Fuentes and Baxter.
Defendant Lamont Vaughn appeals from his conviction on three counts of armed robbery in violation of N.J.S.A. 2C:15-1, as well as related weapons offenses. The judge sentenced him to a total of forty years in prison, of which eighty-five percent was ordered to be served without eligibility for parole.*fn2
Appropriate fines and penalties were imposed. The sentence was ordered to be served consecutively to an unrelated violation of probation sentence that had been imposed eight months earlier.
On appeal, defendant raises the following claims:
I. DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE HE DID NOT KNOWINGLY AND VOLUNTARILY WAIVE HIS CONTITUTIONAL RIGHT TO COUNSEL. (Not Raised Below).
II. DEFENDANT'S SENTENCE WAS EXCESSIVE AND THEREFORE MUST BE VACATED. (Not Raised Below).
A. The Sentence Exceeded The Presumptive Statutory Term and was Based On The Court's Finding Of An Aggravating Factor Other Than The Fact Of A Prior Conviction; In The Alternative, The Court Erred By Referring To "The Presumptive Term."
B. One Of The Consecutive Terms Should Not Have Been Imposed.
C. Defendant's Sentence "Shocks The Judicial Conscience."
In a pro se brief, he raises two additional claims:
I. DEFENDANT'S CONVICTION SHOULD BE OVERTURNED DUE TO THE FACT THAT IT WAS IMPROPER FOR THE TRIAL JUDGE TO SUBMIT TO THE JURY A SPECIFIC DATE BY WHICH TRIAL WOULD BE CONCLUDED! DEFENDANT CONTENDS THAT HEREBY HE WAS DEPRIVED OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO A FAIR TRIAL A IMPARTIAL JURORS! (Not Raised Below).
II. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE STATE UTILIZED AN UNFAIR MEANS-WHICH WOULD BRING ABOUT AN UNJUST END; IN ORDER TO CONVICT THE DEFENDANT!
The threshold issue presented is whether defendant's waiver of his Sixth Amendment right*fn3 to counsel was done knowingly, intelligently and voluntarily. State v. Crisafi, 128 N.J. 499, 509-11 (1992). If it was not, then defendant was denied his right to counsel and the conviction cannot stand. Ibid. On appeal, defendant argues that the hearings conducted on May 4 and October 20, 2005, were insufficient to determine whether he should be permitted to waive counsel and proceed pro se. He measures those hearings against the standards articulated by the Court in State v. Reddish, 181 N.J. 553, 593-95 (2004). Reddish, however, was not decided until the day the jury commenced its deliberations in this trial. At the time defendant's trial began, Crisafi, and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975), represented the definitive standard against which to evaluate a defendant's attempted waiver of his right to counsel.
The Court's decision in Reddish, established a number of other factors to be considered by a trial court in determining whether a defendant's waiver was knowingly and intelligently made, in addition to those already established in Faretta and Crisafi. We conclude that here the waiver hearing did not satisfy even ...