October 16, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
SHAWN T. FLORES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-02-0504.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah S. Lichter, Deputy Attorney General, of counsel and on the brief).
Before Judges Messano and Sabatino.
Following a non-jury trial, defendant Shawn T. Flores was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); third-degree terroristic threats, N.J.S.A. 2C:12-3a; and fourth-degree stalking, N.J.S.A. 2C:12-10b. He was sentenced to an aggregate term of four years imprisonment, with a two-year period of parole ineligibility.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT ERRED IN GRANTING [DEFENDANT'S] REQUEST TO WAIVE HIS RIGHT TO A JURY TRIAL WITHOUT APPLYING THE TEST SET FORTH BY STATE V. DUNNE, 124 N.J. 303 (1991), THEREBY RESULTING IN A WAIVER THAT WAS NOT VOLUNTARY OR KNOWING. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. 1, ¶¶ 1, 9 & 10). (Not Raised Below)
A RESENTENCING IS REQUIRED IN THIS CASE AS THE SENTENCE IMPOSED IS EXCESSIVE AND NOT IN ACCORDANCE WITH THE SENTENCING GUIDELINES OF THE STATE OF NEW JERSEY
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Before the start of trial, defendant appeared with counsel, who advised the judge:
We've had substantial discussion over the course of many days spanning the last few weeks about this decision and I'm convinced that [defendant] understands the ramifications . . . of [his] decision. He understands the nature of waiver of a trial by jury of twelve and proceeding with a fact-finder, consisting of one person. And I'm confident that he desires to waive a trial by jury knowingly, intelligently and voluntarily.
Defendant had already executed a written waiver of trial by jury, and the prosecutor evidenced her consent. See R. 1:8-1(a) ("Criminal actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and an opportunity to be heard, waives a jury trial.").
The judge then placed defendant under oath, and the following colloquy ensued:
Judge: [Y]our attorney has indicated to me that you're going to waive your trial by jury in these proceedings. . . . [Y]ou're entitled to have a jury of twelve make a decision with respect to this case. You're giving that right up.
Defendant: Yes, sir.
Judge: Has anyone forced or threatened or coerced you to give up your right to have a trial by jury?
Defendant: No, sir.
Judge: You're doing so freely and voluntarily?
Defendant: Yes, sir.
Judge: You talked to your attorney about this?
Defendant: Yes, sir.
Judge: Well let me just put something on the record, I should because I was advised initially that this matter was going to proceed as a bench trial. Then I got a notice saying . . . there had been a change of mind, that the matter was going to proceed with a trial by jury. Now it's been brought to my attention . . . that we're back to the circumstance where defendant's prepared to . . . proceed without a jury. I just want to make sure that we're clear at this point, [s]ir, because I don't want you vacillating back and forth because it's my intention once we start trying a case, we start trying a case, with or without a jury but that depends on what you want to do.
If you want to proceed with a jury, . . . you have a right to do that. If you want to proceed without a jury, you have a right to do that as well. But I want to make sure that that's something that you want to do and that nobody's forced or coerced you to give up your right to have a trial by jury. Yes, sir.
Defendant: Judge, I would like to have a bench trial, not a jury.
Judge: All right, okay.
All right, then I'm satisfied that [defendant] knowingly and intelligently has decided to waive his right to a trial by jury and proceed regarding a bench trial. As well thereof the court will sign the Waiver of Trial by Jury. I'm satisfied that [defendant] knowingly and intelligently has done so.
He has a right to speak to his attorney. His attorney made a representation on the record and [defendant has] also testified that he wishes to proceed with a bench trial.
So the court will grant [defendant's] application. The matter will be scheduled for a trial and it's my understanding that we're scheduled to proceed tomorrow morning.
The trial commenced the next day. Defendant testified in his own defense, and the judge subsequently found defendant guilty of all counts in the indictment.
Defendant contends that the judge failed to conduct the appropriate inquiry before accepting defendant's waiver of his right to trial by jury. We disagree.
In Dunne, supra, 124 N.J. at 306, the Court concluded that the trial judge did not abuse his discretion by denying the defendant's request to waive a trial by jury. In providing future guidance to trial judges, the Court said:
[W]hen reviewing a request to waive a jury trial, a court should:
(1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel;
(2)determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and
(3) determine, with an accompanying statement of reasons, whether, considering all relevant factors, including those listed below, it should grant or deny the defendant's request in the circumstances of the case.
[Id. at 317.]
In this case, defendant contends that the trial judge failed to consider the Dunne factors.
However, defendant's reliance on Dunne is misplaced. As Judge Skillman noted in State v. Jackson, 404 N.J.Super. 483, 490 (App. Div.), certif. denied, 199 N.J. 129 (2009):
Dunne makes it clear that the factors a trial court is required to consider in determining whether to grant a defendant's request for waiver of a jury trial, with the exception of whether the waiver is knowing and voluntary, are primarily designed to provide assurance that the grant of the waiver will not undermine the public's confidence in the criminal justice system.
Therefore, "a defendant who has persuaded the trial court to grant his motion to waive the right to a jury trial may challenge that decision only if he can show that his waiver was not voluntary and knowing." Ibid. (emphasis added). Based upon the colloquy recited above, we reject any argument that defendant did not knowingly and voluntarily waive his right to a jury trial. We affirm defendant's conviction.
Defendant next argues that his sentence was excessive and remand is required because the judge failed to appropriately weigh the aggravating and mitigating sentencing factors. We again disagree.
The judge found aggravating factors two, three, six and nine. See N.J.S.A. 2C:44-1a(2)("[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable . . ."); (3) (the risk of re-offense); (6) (extent and seriousness of defendant's prior criminal record); (9) (the need to deter defendant and others). No mitigating factors were urged by defense counsel, and the judge found none.
Each of the aggravating factors was supported by the record. Defendant assaulted the victim when she was more than eight months pregnant with defendant's child. The judge specifically noted that the victim testified that shielded her abdomen as defendant struck her repeatedly in her arm. The judge further noted defendant's prior involvement with the criminal justice system, which included prior juvenile delinquency adjudications and two prior indictable convictions.
Although defendant now argues that the judge did not engage in a weighing process that qualitatively assessed the findings he made, the judge clearly considered both the State's recommended sentence, and defense counsel's suggestion that defendant be placed on probation and credited with time served.
After consideration of the sentencing factors, the judge stated that he was imposing a sentence that served "the interest of justice and fairness." On the aggravated assault count, the judge imposed a four-year term of imprisonment with a two-year period of parole ineligibility. On the third-degree terroristic threat count, the judge imposed a two-year term of imprisonment concurrent to count one, rejecting the prosecutor's request for a consecutive sentence. Finally, on the fourth-degree stalking conviction, the judge imposed a concurrent eighteen-month sentence.
At side bar, with the acquiescence of defense counsel, the prosecutor brought to the judge's attention the impropriety of imposing a "tier" sentence, a reference to the fact that the judge could not impose a two-year period of incarceration for the third-degree crime of terroristic threats. The judge then corrected himself and imposed a four-year "flat" sentence on that charge.
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quotations and citation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Here, while the judge could have perhaps said more, it is implicit that he engaged in the qualitative balancing of aggravating and mitigating sentencing factors. We find no mistaken exercise of the judge's broad discretion.