State v. Coon

• Decision Date: 29 July 1998
• Citation: 715 A.2d 326,314 N.J.Super. 426
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Alonzo COON, Petitioner-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 426

314 N.J.Super. 426

715 A.2d 326

STATE of New Jersey, Plaintiff-Respondent, v. Alonzo COON, Petitioner-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted June 8, 1998.

Decided July 29, 1998.

Ivelisse Torres, Public Defender, for petitioner-appellant (John Havrilchak, Designated Counsel, of counsel and on the brief).

Patricia A. Hurt, Essex County Prosecutor, for plaintiff-respondent (Hilary L. Brunell, of counsel and on the brief).

Before Judges SKILLMAN and STEINBERG.

The opinion of the court was delivered by

STEINBERG, J.S.C. (temporarily assigned).

Alonzo Coon, now known as Jalani Bakari (petitioner), appeals from the denial of his petition for post-conviction relief. We agree with petitioner that the record does not support the trial judge's conclusion that he knowingly, intelligently, and voluntarily waived his right to appellate counsel and reverse the order denying his petition for post-conviction relief.

A jury found petitioner guilty of first-degree robbery, contrary to the provisions of N.J.S.A. 2C:15-1 (Counts One and Two), first-degree kidnapping, contrary to the provisions of N.J.S.A. 2C:13-1b(1) (Count Three), third-degree aggravated assault, contrary to the provisions of N.J.S.A. 2C:12-1b(2) (Count Four), unlawful possession of a weapon, contrary to the provisions of N.J.S.A. 2C:39-5b (Count Six) and second-degree possession of a weapon for an unlawful purpose, contrary to the provisions of N.J.S.A. 2C:39-4a (Count Seven). The trial judge imposed an aggregate sentence of thirty-six years in prison with sixteen years to be served without parole. He also imposed the appropriate monetary penalties.

The Office of the Public Defender perfected an appeal on behalf of petitioner. While the appeal was pending, petitioner expressed dissatisfaction with the Assistant Deputy Public Defender (Public Defender) assigned to represent him. Accordingly, the Public Defender filed a motion seeking to be relieved as counsel. In that motion, she alleged, in pertinent part, as follows:

3. Defendant has advised me, verbally and in writing, that he does not wish to be represented by the Office of the Public Defender. He wishes to keep open the option of proceeding pro se, and he has requested that I send him the transcripts and all the documents in his file. Therefore, I am filing the within motion.

On March 22, 1989, we granted that application and required the public defender to send a copy of the order to petitioner. That order further provided, as follows:

If defendant does not perfect this appeal by filing his brief and appendix, including all transcripts, either pro se or through substituted counsel, within thirty days after the mailing of said notice, the Clerk shall dismiss the appeal for lack of prosecution without further notice.

Shortly thereafter, petitioner filed a brief pro se raising nine separate points of error, together with a supplemental point. He also filed a reply brief raising nine separate points.

We affirmed petitioner's conviction in an unreported opinion. State v. Koon, No. A-4884-87T2 (App.Div. February 14, 1990). ¹ Petitioner thereafter filed a petition for certification which was denied by the Supreme Court. State v. Koon, 122 N.J. 354, 585 A.2d 365 (1990). Petitioner's motion for reconsideration and for the appointment of counsel was also denied by the Supreme Court. Petitioner then filed a petition for post-conviction relief which was denied on February 5, 1993. On appeal from the denial of the petition for post-conviction relief, we concluded that petitioner was denied the effective assistance of counsel in his petition for post-conviction relief and remanded. The matter is before us again, on appeal from the denial of his petition for post-conviction relief after remand. ²

At the hearing on the petition for post-conviction relief, petitioner denied advising the Public Defender, either verbally or in writing, that he no longer wished to be represented by the Office of the Public Defender. In addition, he denied receiving the motion to be relieved as counsel and asserted that he was unaware of the application until he received the order.

The motion judge resolved the credibility issue against petitioner and concluded that petitioner, verbally and in writing, advised the Public Defender that he did not wish to be represented by her office and wished to keep open the option of proceeding pro se. The motion judge also rejected petitioner's contention that he did not understand what was meant in the order by the term "substituted counsel." Finally, the motion judge, persuaded by the fact that petitioner filed a comprehensive brief before the Appellate Division, as well as his subsequent legal efforts, determined that petitioner fully understood his right to counsel and his right to proceed pro se. The motion judge determined that petitioner knowingly and intelligently waived his right to counsel. In addition, the motion judge concluded that petitioner was not entitled to a hearing to determine whether there was a valid waiver of the right to counsel indicating that such a hearing, either in the Appellate Division or on remand to a trial judge, would be an unnecessary burden on and inefficient use of judicial time. We disagree.

Fundamental rights explicitly rooted in the Constitution require a waiver by petitioner that is "knowing and intelligent." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Among these fundamental rights that are explicitly routed in the Constitution is the right to counsel. State v. Bellucci, 81 N.J. 531, 543, 410 A.2d 666 (1980). The assistance of counsel is essential to ensuring fairness and due process in criminal prosecutions. State v. Sugar, 84 N.J. 1, 16, 417 A.2d 474 (1980). However, defendants possess not only the right to counsel, but the right to dispense with counsel and to proceed pro se. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562, 572 (1975). Nevertheless, a petitioner can only exercise the right to self representation by first knowingly and intelligently waiving the right to counsel. McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79 L.Ed.2d 122, 130 (1984). "[E]very reasonable presumption will be indulged against waiver of so fundamental a right as the right to counsel." State v. Kordower, 229 N.J.Super. 566, 577, 552 A.2d 218 (App.Div.1989). Ordinarily, before a court may permit a defendant to waive counsel and proceed pro se, there must be a comprehensive, penetrating and painstaking inquiry of the defendant. See State v. Kordower, supra, 229 N.J.Super. at 577, 552 A.2d 218; State v. Guerin, 208 N.J.Super. 527, 535, 506 A.2d 743 (App.Div.1986); and State v. Abbondanzo, 201 N.J.Super. 181, 184, 492 A.2d 1077 (App.Div.1985). Before permitting a waiver of counsel, "a judge must investigate as long and as thoroughly as the circumstances of the case before him demand." Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1948).

Faretta requires that a defendant be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." Faretta, supra, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 582. It is only after a painstaking and thorough inquiry that a court can be satisfied that a defendant's waiver of counsel is knowing and voluntary in that he knows what he is doing and his choice is made with his eyes open. Here, there was no inquiry at all. Accordingly, we are unable to conclude that defendant knowingly and intelligently waived his right to counsel.

The State argues that there is no requirement that a waiver of appellate counsel be approved only after an in-court, thorough, painstaking inquiry by a judge. The State argues that since there is no constitutional right to appeal, the right to counsel on appeal is a derivative right, not expressly identified in the constitution. Although there is no constitutional right to an appeal, Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891, 898 (1956), once a right to appeal is provided, that right must be protected in a non-discriminatory fashion. Accordingly, an indigent defendant has a right to counsel on direct appeal. Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 816, 9 L.Ed.2d 811, 814 (1963). We agree with the State that there are some intermediate-level rights that implicate the Constitution but are not expressly identified therein and in those cases an on-the-record waiver by a defendant generally is not required. See State v. Buonadonna, 122 N.J. 22, 35, 583 A.2d 747 (1991) (defendant's right to separate trials could be waived off the record by defense counsel even though there was a right to severance as of right in light of the fact that the State intended to introduce a statement by one defendant implicating another defendant); State v. Savage, 120 N.J. 594, 629-30, 577 A.2d 455 (1990)(waiver of the right to testify need not be on the record in order to withstand appellate scrutiny); and State v. Pratts, 71 N.J. 399, 400-01, 365 A.2d 928 (1976)(trial court properly did not involve itself in dispute between defendant and counsel regarding counsel's decision not to call a certain witness). However, these cases involve strategical and tactical decisions of a counselled defendant, with constitutional implications, as opposed to a right so fundamental as the right to counsel. The United States Supreme Court has held that although requiring a defendant to stand trial in prison attire may impact upon the constitutionally protected right to a fair trial, and the presumption of innocence, nevertheless the decision may have been a strategic one, and, therefore, the trial judge was not required, in the absence of an objection from defendant, to conduct an inquiry of defendant or counsel as to whether he was...