On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-02-0116.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges S.L. Reisner and Baxter.
Defendant Richard W. Johnson appeals from his November 20, 2005 conviction on one count of second-degree robbery, N.J.S.A. 2C:15-1(a)(2). After granting the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), the court sentenced defendant to a twelve-year term of imprisonment, with eighty-five percent to be served before becoming eligible for parole. Appropriate fines and penalties were imposed. We affirm the conviction and remand the sentence for reconsideration in light of State v. Pierce, 188 N.J. 155 (2006).
On December 13, 2002, a man handed a bank teller at the Fleet Bank in North Plainfield a note demanding that she give him money. He threatened to hurt her or someone else if she did not cooperate. The teller gave the man $100 in singles from her cash drawer. Not satisfied, the man stated he wanted "large" bills, after which the teller gave defendant all of the currency that was in her cash drawer. He placed the money in a small black case and exited the bank. The teller later provided police with a description of the robber and his clothing. Subsequent police investigation resulted in the arrest of defendant on February 1, 2003.
After being advised of his rights, defendant provided police with a formal statement, in which he admitted that he had robbed the bank. Three days later, on February 4, 2003, defendant provided an additional taped statement after again waiving his rights. In his second statement, defendant explained that a friend named McCloud Bellevue drove him to the bank, that he shared the proceeds with Bellevue and gave fifty dollars to a female who had accompanied the two.
Prior to trial, defendant filed a motion to dispense with counsel and represent himself at trial. After a hearing on that motion on October 21, 2004, the judge granted defendant's motion to represent himself.
Subsequently, on March 9 and 28, 2005, a hearing was held on the State's motion to redact portions of defendant's taped statements. The court granted the State's requests, but only some of defendant's.
Trial began on March 28, 2005, and the next day the jury returned a verdict finding defendant guilty of second-degree robbery. Defendant was sentenced on November 29, 2005.
On appeal, defendant presents the following issues for our consideration:
I. THE DEFENDANT DID NOT KNOWINGLY WAIVE HIS RIGHT TO COUNSEL BECAUSE, AFTER HE INDICATED HIS DESIRE TO REPRESENT HIMSELF, THE COURT: (1) MISINFORMED HIM REGARDING THE MAXIMUM SENTENCE HE WAS FACING, AND (2) FAILED TO INFORM HIM OF AVAILABLE DEFENSES AND OTHER FACTS CRITICAL TO A KNOWING AND INTELLIGENT WAIVER OF COUNSEL. U.S. Const. Amend. VI; N.J. Const. Art. 1, ¶ 10.
II. THE DEFENDANT'S STATEMENTS WERE INADEQUATELY REDACTED, THEREBY PERMITTING THE JURORS TO CONCLUDE THAT HE HAD COMMITTED ADDITIONAL BANK ROBBERIES.
III. THE COURT ABUSED ITS DISCRETION IN SENTENCING JOHNSON TO AN EXTENDED TERM AS A PERSISTENT OFFENDER; BUT EVEN IF SUCH A TERM WERE ...