On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-07-0936.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges Lintner and Sabatino.
On December 12, 2005, defendant Forlang Spencer pled guilty to all eleven counts charging him within a broader forty-one count indictment. Through that plea, defendant acknowledged his culpability for third-degree conspiracy to possess cocaine, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10a(1) (Count 1); second-degree conspiracy to distribute cocaine, contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(2) (Count 2); third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (Counts 21, 24 and 27); third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Counts 22, 25 and 28); and second-degree distribution of cocaine on or near a public park, contrary to N.J.S.A. 2C:35-7.1 (Counts 23, 26 and 29). The court thereafter sentenced defendant to various custodial terms, some of them on a consecutive basis and others on a concurrent basis. Defendant now appeals his convictions and his resulting sentence. We affirm the convictions, but remand for resentencing.
The underlying charges arose out of ongoing activities, involving defendant and at least five other persons, in which they packaged and distributed controlled dangerous substances ("CDS") in Perth Amboy and at other places in Middlesex County, from September 2003 to February 2004. Pursuant to that conspiracy, defendant sold cocaine to undercover narcotics officers on three occasions: twice on October 9, 2003 and once on December 9, 2003. The three undercover sales all occurred within five hundred feet of a public park.
Initially, defendant, who has an extensive criminal history, was assigned an attorney to defend him in the case. However, disagreements arose between defendant and his attorney. The disagreements led to defendant requesting the court, before the scheduled trial date, to allow him to represent himself. That request was first discussed on the record on May 10, 2005 at a status conference with the trial judge. During the course of that conference, the following pertinent colloquy occurred:
THE COURT: Good afternoon, sir. A couple things, by way of housekeeping.
Sir, I heard you would like to fire Mr. West, and proceed on your own? If you want to do that, I certainly have no objection to you doing that. Obviously, I'm going to ask Mr. West to be here to advise you. If that's what your wish is -- okay -- I have no problem with it. We'll try to take things as slowly as possible, so, you fully understand what is going on. You understand that I can't give you legal advice and I won't. And, understanding that, I'll do everything I can to insure that you understand. The proceeding is going forward.
THE COURT: You want to, basically, be the captain of your own ship?
THE COURT: Understand what I'm saying. You can do this, but I'm not recommending it. You understand that?
THE COURT: Mr. West [defendant's assigned attorney] is an experienced attorney. He has done a lot of criminal work. And he knows the procedures. And he, frankly, is a pretty darn good trial lawyer. And in letting him go, or in asking to proceed on your own, you're going to be held accountable, just as if you were the lawyer. You understand that?
THE DEFENDANT: Uh-hum. Yes, sir.
THE COURT: Anybody forcing you to do that?
The judge then reviewed the charges in the indictment in detail and the range of potential sentences with defendant, as clarified by defense counsel and the assistant prosecutor. The judge then resumed addressing defendant's request to represent himself:
THE COURT: You're not under the influence of drugs or medications? Anything, sir?
THE COURT: Now, is it accurate to say, you want to represent yourself, sir?
THE COURT: You'll pass that over. I put on his, over here, which says, the defense counsel, and I wrote pro se, meaning representing yourself. You have to sign the memo.
Mr. West, I'm going to direct that you be co-Counsel, so to speak. Be present at all times, in case Mr. Spencer has any questions. And if, at some point, he makes a determination that, maybe he can use Counsel, you'll be prepared. And you'll have a history of having been here, and knowing where the case is.
MR. WEST: I want to stand in.
THE COURT: At this point, you will be Stand-by Counsel.
A colloquy ensued, in which arrangements were made to allow defendant to review the State's discovery. The judge then addressed defendant one more time:
THE COURT: Mr. Spencer, we will get you right back [to your jail facility]. It is quarter to one. You decide what you want to file.
Mr. West will review the file, as to what he needs, and what you are entitled to. And then you will listen to the tapes.
And we should know early next week. And as soon as we can get the defendant up here, with the equipment, and a pad and a pencil, with Mr. West, so, you can review all your tapes, review all your conversations, and make appropriate notes, and make any challenges that you want, to any other areas. Is that satisfactory to you?
THE DEFENDANT: Yes, it is.
THE COURT: Is there anything that you believe we have missed, sir?
THE COURT: Mr. West, is there anything you believe that we missed?
MR. WEST: No, your Honor.
Thereafter, the defendant filed a formal motion to appear pro se in his case. The trial judge granted that motion in open court on June 2, 2005, in the presence of defendant, his attorney and the assistant prosecutor. The judge also confirmed that defendant's former attorney would function as standby counsel. The colloquy underscored defendant's voluntary assent to these arrangements:
Q: Mr. Spencer, I am going to hand to you two items; one is a letter that everyone who received a copy of, Mr. West and myself, sent by the prosecutor dated June 2nd. And the other is a list of questions that has been sent to me by Mr. Lamb [the assistant prosecutor] that recommended that we review to make sure you're making an intelligent, voluntary decision to represent yourself. What I would like to do, sir, is go over representation, that is, your representing yourself to make sure that you are making a decision that is, you know, done with the most possible understanding you can possibly have of the nature and consequences of what you're about to face.
So, Mr. Spencer, let me ask you to make sure. Do you fully understand the nature of the charges against you, sir?
Q: All right. Could you tell me what they are?
A: What does that have to do with anything? I understand why, I understand the whole process.
Q: Let me explain to you why. You have every right to represent yourself and I would not stand in the way of that, but to do that we would like to make sure and I'd like to make the record as clear as possible that you're doing that, fully aware of what the charges are and of what you're facing, all of that stuff?
A: I told you I understand. I mean, you brought me here on several occasions and explaining to me what I was facing, the time. I am looking at all of that. I'm fully aware of that.
Q: Well, this is the last time I am going to do it. And the reason I am doing it is to make sure that I cover all the bases. And I am not trying to interfere with your right to represent yourself at all, okay? So when I say to you, well, do you understand the nature of the charges, I've asked you before and you said yes. I don't know that I have actually asked you what your understanding of the charge[s] are, so some of the questions will be repeated, but some of them might be new and I just wanted to make sure you have all the possible information necessary, that the record's clear you got it, that is all I am trying to do, sir. Okay?
A: Well, conspiracy to possess CDS. Conspiracy to distribute CDS. Three counts of a possession, three counts of possession with the intent to distribute. Three counts of possession with the intent on or near a public park.
Q: In fact, the plea I think called for a fraction of the maximum exposure that you could go to jail. You understand all of that, right?
Q: Okay. Do you understand that discovery in the case, this is going to be quite large, I am sure you have gotten much of it, but it includes wiretap information and recordings and it is quite voluminous. You understand that?
Q: You understand that wiretap information and using it in a trial may not be an easy matter. It is a little bit different than just a standard CDS case where there is police and who sees it go down, if you will, and you're cross-examining a witness?
A: That is why I have co-counsel.
A: That is why I think I have ...