August 31, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIGUEL FIGUEROA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Indictment No. 00-10-3179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 26, 2010
Before Judges Stern, Graves and J. N. Harris.
Defendant was convicted of murder, N.J.S.A. 2C:11-3(a)(1)-(2); felony murder, N.J.S.A. 2C:11-3(a)(3); aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3), and sexual assault, N.J.S.A. 2C:14-2(c)(4). He was sentenced to an aggregate term of life imprisonment plus twenty years with forty-five years to be served before parole eligibility. This was based on a sentence of life with thirty-five years before parole eligibility for the murder and a consecutive sentence of twenty years with ten years before parole eligibility for the aggravated sexual assault. Defendant's convictions were reversed on appeal because the trial court had improperly denied his Sixth Amendment right to self-representation. State v. Figueroa, 377 N.J. Super. 331, 338 (App. Div. 2005), aff'd, 186 N.J. 589 (2006).
Following a new jury trial before another judge, defendant was again convicted on all counts. He was sentenced to life imprisonment with thirty years to be served before parole eligibility on the murder conviction and a consecutive life term with parole ineligibility for twenty-five years and to community supervision for life on the conviction for aggravated sexual assault. Accordingly, the aggregate sentence after the second trial was two lives plus fifty-five years before parole eligibility. We amend the sentence and affirm the convictions.
In August 1995, on a Friday afternoon, thirteen-year-old Shaline Sequinot was visiting her grandmother in Camden when she asked her aunt for permission to borrow a neighborhood boy's bicycle for a short ride. Her aunt allowed her, but warned that she could not go far and had to return in five minutes. When Sequinot did not promptly return, her family became worried and set out to search for her. They could not find her and called the police, but continued searching throughout the weekend.
Sequinot's body was found three days after her disappearance. A medical examiner testified that a severed carotid artery and stab wound to the lung caused her death, and that she also sustained nine other stab wounds to the chest and a small laceration to the vagina. He opined that all of the injuries had been inflicted within a half hour of death, which, he estimated, occurred within hours of Sequinot venturing off on the bicycle that afternoon.
Semen was found in vaginal swabs taken from Sequinot. An expert in DNA analysis testified that genetic material from one of those swabs matched defendant's DNA.
Defendant argues that he did "not knowingly and voluntarily waive his [right to counsel at the second trial] because the court did not inform him of the maximum term he faced [upon conviction,] and led him to believe that he faced less than the maximum term" and less than the term he received.
The trial court concluded, following a hearing, that defendant sufficiently understood the consequences of his decision to waive his right to counsel. A criminal defendant has a state and federal constitutional right to self-representation. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed. 2d 562, 574 (1975); State v. Davenport, 177 N.J. 288, 299-302 (2003). That right is not absolute, however, and may be exercised only following a knowing and intelligent waiver of the right to representation by counsel. State v. Reddish, 181 N.J. 553, 587, 592 (2004). Therefore, the court must engage in a searching inquiry on the record of a defendant who wants to represent himself, State v. Crisafi, 128 N.J. 499, 509-10 (1992), and ascertain whether he or she is adequately informed of
(1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (5) the impact that the dual role of counsel and defendant may have; (6) the reality that it would be unwise not to accept the assistance of counsel; (7) the need for an open-ended discussion so that the defendant may express an understanding in his or her own words; (8) the fact that, if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim; and (9) the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination.
[State v. DuBois, 189 N.J. 454, 468-69 (2007).]
Generally, the validity of a waiver depends "'upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'" State v. Thomas, 362 N.J. Super. 229, 236 (App. Div.) (quoting Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1884, 68 L.Ed. 2d 378, 385 (1981)), certif. denied, 178 N.J. 249 (2003). See also State v. Kordower, 229 N.J. Super. 566, 578 (App. Div. 1989). In the specific context of punishment, the failure to ensure that a defendant is adequately informed of his or her sentencing exposure has impacted the validity of a waiver of the right to counsel. Kordower, supra, 229 N.J. Super. at 578; State v. Abbondanzo, 201 N.J. Super. 181, 185 (App. Div. 1985). In Abbondanzo, we reversed a disorderly person's conviction because the defendant was not advised that he risked "incarceration." 201 N.J. Super. at 183-85. In Kordower, convictions were reversed because defendant was not advised of the possible length of the aggregate sentence. 229 N.J. Super. at 577.
Here, the court engaged defendant in a thorough discussion of the nature and consequences of defendant's request to proceed pro se. Although he preferred only to cross-examine the State's witnesses because he knew the case so well, he assured the court that, if it forbade hybrid representation, defendant felt "comfortable with doing the whole case." He expressed confidence that "[n]obody knows my case better than I do. I'm familiar with the case. I studied the case." Defendant also indicated that he understood his basic responsibilities in proceeding pro se: making opening and closing statements, cross-examining witnesses, conducting jury selection, presenting his own witnesses and exhibits, as well as his consequent abandonment of any claim of ineffective assistance of counsel and the risk of jeopardizing his right against self-incrimination.
Defendant acknowledged that he had little familiarity with rules of evidence, no experience with the court rules or criminal code, and only a ninth-grade education. Consequently, he acknowledged that he might face some difficulty in representing himself but maintained that "that's a risk I'm willing to take. And I'm wholeheartedly giving -- That's why I'm wholeheartedly giving up my rights so I can represent myself." Defense counsel*fn1 then confirmed that, although he did not advise defendant to proceed pro se, his own extensive discussions with defendant revealed that defendant was thoroughly familiar with the first trial, understood the risks of self-representation, and knew that "should a verdict come down against him that there is almost a 150 percent possibility that he will go to jail for the rest of his life."
Following the colloquy, the remand court observed that although generally unfamiliar with the rules of evidence, defendant "knows the evidence he faces in this case because he sat through the first trial and he's read and reread all of the transcripts of that trial." Significantly, the judge found defendant understood "the ultimate consequences" of "life plus twenty" because he had already been sentenced on these charges to that term. Moreover, despite his relative lack of education, the judge found that defendant "is fairly articulate and able to express his understanding of what it means to represent himself throughout a trial." Although the court believed that the circumstances of defendant's request, made on the eve of trial after he had initially indicated his intention on remand to be represented by counsel, suggested a "manipulation of the system,"*fn2 the judge was nonetheless satisfied that defendant sufficiently understood the consequences of his decision to "knowingly and intelligently and voluntarily waive his right to representation by counsel."
Defendant asserts that his waiver was not knowingly and voluntarily entered with respect to the advice given regarding his maximum sentence exposure upon conviction. Specifically, he takes issue with the following exchange:
[THE COURT:] Can you tell me your understanding of what the penalties you may be facing if you're convicted of the charges in this case are [sic]?
THE DEFENDANT: Sir, one which is no longer felony murder; first degree murder; sexual assault; aggravated sexual assault. I know that counts. These are the counts and I know what -- how much time I face on each of these counts.
THE COURT: How much?
THE DEFENDANT: Life plus twenty just counting persistent offender.
THE COURT: Counting persistent offender?
THE DEFENDANT: Yes.
THE COURT: Is that your understanding of the maximum that you could be facing?
THE DEFENDANT: That's what I was sentenced to, sir.
THE COURT: I'm not sure. Was he sentenced as a persistent offender the first time?
MR. SMITH [ASSISTANT PROSECUTOR]: Yes, your honor.
THE COURT: Okay --MR. SMITH: (Interposing) Actually, Judge Snyder imposed an extended term sentence on the murder. Instead of thirty years without parole it was 35. Then he ran twenty do ten consecutive to that which came out to life plus twenty, 45 without parole.
THE COURT: So, if I understand you, sir, when I asked you about the range of sentences that you would face if you were convicted of these charges, what do you think the maximum is, sir?
THE DEFENDANT: I have no problem with what the maximum is, sir.
THE COURT: Do you know what it is, sir?
THE DEFENDANT: Life sentence plus twenty.
THE COURT: How about the maximum sentence if you're a persistent offender as you were the last time by Judge Snyder? Do you know what that is?
THE DEFENDANT: That's what it comes down to, life plus twenty. That's what I was sentenced to. That's what I'm facing.
I understand what I'm facing. I have no problem with facing it. [(Emphasis added).]
It is clear that the sentence imposed on remand was longer than both the one imposed after the first trial and the maximum exposure stated during the colloquy with respect to the specific term, although the period of parole ineligibility was not specifically expressed. Defendant repeatedly maintained that he faced a sentence of "life plus twenty" without any mention of or concern for the parole ineligibility period.
As already noted, defendant argues that the court's failure to correct his misconception of the maximum sentence requires a reversal of his conviction irrespective of whether he would still have chosen to represent himself. Related to this argument is defendant's contention that the court denied his right to due process by imposing a sentence greater than that imposed following his first trial.
The first judge imposed an extended term of life imprisonment with a thirty-five year parole disqualifier on the murder count and a consecutive term of twenty years with a ten-year parole disqualifier on the aggravated sexual assault count following the first trial. After retrial, the second trial judge also found defendant to be a persistent offender and imposed an extended sentence, but on the aggravated sexual assault count rather than the murder count. He sentenced defendant to life imprisonment with a twenty-five year parole disqualifier on that count and a consecutive term of life with a thirty-year parole disqualifier on the murder count. The net difference between the two sentences is that defendant now faces two life terms and an additional ten years of parole ineligibility.
It is well known that a court may impose a harsher sentence following retrial, but may not do so to punish a defendant for a successful appeal without undermining his right to due process. North Carolina v. Pearce, 395 U.S. 711, 723-24, 89 S.Ct. 2072, 2079-80, 23 L.Ed. 2d 656, 668 (1969). To ensure that such vindictiveness played no part in the court's sentencing decision, reviewing courts must accord a presumption of vindictiveness under any circumstances where there is a "reasonable likelihood" "that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority." Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 2205, 104 L.Ed. 2d 865, 873 (1989). In order to assure the absence of such motivation," the presumption may be rebutted only if non-vindictive reasons for the increase "affirmatively appear" in the trial court's sentencing decision. Pearce, supra, 395 U.S. at 725-26, 89 S.Ct. at 2080-81, 23 L.Ed. 2d at 669-70. Specifically, [t]hose reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. [Id. at 726, 89 S.Ct. at 2081, 23 L.Ed. 2d at 670.]
However, the presumption does not always apply, and in certain circumstances defendant must demonstrate actual vindictiveness. Smith, supra, 490 U.S. at 801-02, 109 S.Ct. at 2205-06, 104 L.Ed. 2d at 873-74 (first sentence based on guilty plea and second imposed following trial where more information is usually available to the sentencing judge); Chaffin v. Stynchcombe, 412 U.S. 17, 26-27, 93 S.Ct. 1977, 1982-83, 36 L.Ed. 2d 714, 723-24 (1973) (second jury imposed longer sentence than first); Colten v. Kentucky, 407 U.S. 104, 116-117, 92 S.Ct. 1953, 1960, 32 L.Ed. 2d 584, 593-94 (1972) (longer sentence imposed after trial de novo in superior court).
Specifically, recent federal precedent uniformly indicates that the presumption of vindictiveness does not arise if, as here, the new sentence was imposed by a second judge who had no connection with the first trial or sentence and provided an adequate, non-vindictive explanation of the new sentence. United States v. Rodriguez, 602 F.3d 346, 358 (5th Cir. 2010); United States v. Moskovits, 86 F.3d 1303, 1310 (3d Cir. 1996), cert. denied, 519 U.S. 1120, 117 S.Ct. 968, 136 L.Ed. 2d 853 (1997); United States v. Clark, 84 F.3d 506, 508 (1st Cir.), cert. denied, 519 U.S. 909, 117 S.Ct. 272, 136 L.Ed. 2d 195 (1996); Macomber v. Hannigan, 15 F.3d 155, 156-57 (10th Cir. 1994); United States v. Cheek, 3 F.3d 1057, 1064 (7th Cir. 1993), cert. denied, 510 U.S. 1112, 114 S.Ct. 1055, 127 L.Ed. 2d 376 (1994); United States v. Newman, 6 F.3d 623, 630-31 (9th Cir. 1993); United States v. Perez, 904 F.2d 142, 146 (2d Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 270, 112 L.Ed. 2d 226 (1990). The possibility of vindictiveness does not inhere under those circumstances, because the second judge has not been reversed and thus has no incentive for self-vindication through a sentencing decision. Perez, supra, 904 F.2d at 146. See also Alabama v. Smith, supra.
In the context of the severity of sentencing upon reconviction, our state due process clause is co-extensive with the federal. State v. Pindale, 279 N.J. Super. 123, 128-30 (App. Div.), certif. denied, 142 N.J. 449 (1995) (remanding for resentencing in light of Pearce). Thus, the State argues that the due process concern should be satisfied by a remand for a statement of "reasons for increasing the sentence beyond that imposed after defendant's first trial." However, we decline to take that approach in this case, as defendant has been incarcerated since before the first trial, and nothing in the record would support an increase pursuant to Pearce. State v. Heisler, 192 N.J. Super. 586, 592-93 (App. Div. 1984) (remanding for re-imposition of original sentence, where record was "barren of any evidence of intervening conduct or prior oversight to justify the new sentence").*fn3 More significantly, the remand for reasons, or a holding that the presumption of vindictiveness does not apply, does not solve the problem caused by the colloquy concerning defendant's sentence exposure at the second trial.
We are, in any event, satisfied that another remand is not justified and that finality is warranted in this case involving a murder which occurred fifteen years ago. Although the State could not appeal from the sentence imposed after the first trial which involved a capital prosecution, see N.J.S.A. 2C:44-1(f)(2), there is no suggestion it was inappropriately lenient, as consecutive sentences were imposed as was an extended term.
We are therefore satisfied that re-imposition of that sentence is the proper disposition in this case. While the colloquy on waiver of counsel did not expressly address the critical parole ineligibility term, we are further satisfied that the problematic lack of discussion of the true sentence exposure makes that omission academic in this case and, in any event, re-imposition of the sentence defendant knew to have been originally imposed solves any problem in respect to whether defendant was adequately informed of his exposure to punishment when he waived his right to an attorney before his second trial. See Moskovits, supra, 86 F.3d at 1306-09.
Defendant contends that the State unduly burdened his right to self-representation by suggesting that it would discontinue plea negotiations if he dispensed with counsel. As noted, defendant initially told the court that he wished to be represented by counsel at his new trial. He reiterated that view even after the attorneys who had represented him in his first trial were replaced by another designated attorney. On the eve of trial, however, defendant signaled that he might instead move to represent himself and requested that the pretrial conference be adjourned to allow him time to consider his decision. The prosecutor, then in plea negotiations with defendant and his counsel, reacted:
MR. SMITH: [F]rankly, if he's going to go through with the motion to represent himself, there is no need to discuss a plea in this case.
THE COURT: Okay --MR. SMITH: (Interposing) I mean, I'm only going to plead the case with a lawyer, for one thing.
THE COURT: Yes.
MR. SMITH: And frankly, I suspect that this is just a means of manipulating the system.
Further plea negotiations ensued, and defendant moved a couple of days later to represent himself. When the court inquired why, he explained that he intended all along to be represented by counsel in pretrial proceedings and plea negotiations, but to forego that representation at trial.
A defendant has the right to representation by counsel at the plea bargaining stage. State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002). It stands to reason that he would have the right to represent himself in that context, as well. See DuBois, supra, 189 N.J. at 466 (recognizing constitutional right both to counsel and self-representation); but see Reddish, supra, 181 N.J. at 582 (stating that defendant's right to self-representation does not arise automatically from the power to waive right to counsel); State v. McNeil, 405 N.J. Super. 39, 52 (App. Div.), certif. denied, 199 N.J. 130 (2009) (right to self-representation may be denied when a mentally ill defendant is competent to stand trial but not competent to represent himself).
Nonetheless, a defendant has no affirmative right to compel plea negotiations, and a prosecutor exercises considerable discretion in deciding whether to negotiate at all. State v. Williams, 277 N.J. Super. 40, 46 (App. Div. 1994). Although that discretion is not unlimited, see United States v. Bell, 506 F.2d 207, 221-22 (D.C. Cir. 1974) (explaining that plea bargaining decision and treatment of co-defendants cannot be based on an "unjustifiable standard" or arbitrary classification), defendant cites no authority holding that a prosecutor's reluctance to negotiate with an unrepresented defendant infringes on the defendant's right to self-representation. In any event, here defendant did precisely as he always intended--accepted representation by counsel for plea negotiations and represented himself only at trial. Moreover, the prosecutor was justified to take the position he did because the defendant had already secured a reversal of his convictions by asserting the right of self-representation and subsequently, for a period, asserted his right to counsel.
Therefore, defendant's argument with respect to plea negotiations does not warrant a reversal of his conviction.
Defendant argues as "plain error," that the jury instructions infringed his right against self-incrimination. At defendant's request, the court instructed the jury according to the model criminal charges:
[A]s you know, Miguel Figueroa elected not to testify at trial. It's his [c]onstitutional [r]ight to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that he didn't testify. That fact should not enter into your deliberations or discussions in any manner at any time. He's entitled to have you, the jury, consider all the evidence presented at the trial, and he's presumed innocent even though he chose not to testify. [(Emphasis added).]
Defendant asserts that the phrase "even though" implies such a severe contradiction between the presumption of innocence and his decision not to testify that it nullifies any benefit of the rest of the instruction and impermissibly suggests that he was obligated to testify.
An instruction must not "invade[ a defendant's] absolute Fifth Amendment right to remain silent without suffering any penalty or adverse inference." State v. Dent, 51 N.J. 428, 439-40 (1968). Nonetheless, when a defendant fails to object to an instruction, only plain error will justify a reversal of his conviction. State v. Adams, 194 N.J. 186, 206 (2008). The error must be "'clearly capable of producing an unjust result'" when evaluated in the context of the instructions as a whole. Id. at 207 (quoting R. 2:10-2). Generally, however, "because clear and correct jury instructions are fundamental to a fair trial, erroneous instructions in a criminal case are 'poor candidates for rehabilitation under the plain error theory.'" Ibid. (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
As defendant points out, the final sentence of the model charge has been revised, following our recommendation in an unpublished opinion, to express that defendant "is presumed innocent whether or not he/she chooses to testify." Model Jury Charges (Criminal), Defendant's Election Not to Testify (2009) (emphasis added). However, while the charge that was given may arguably imply an expectation that a defendant would usually testify, the charge as a whole was not reasonably susceptible to that interpretation. In any event, it cannot constitute "plain error."
We conclude that no other contention made by defendant warrants discussion. R. 2:11-3(e)(2). Accordingly, we affirm defendant's convictions but remand for re-imposition of the sentence of life plus twenty years with forty-five years before parole eligibility, as originally imposed.