State v. Rose

Citation206 A.3d 995,458 N.J.Super. 610
Decision Date24 April 2019
Docket NumberDOCKET NO. A-4915-16T2
Parties STATE of New Jersey, Plaintiff-Respondent, v. Zarik ROSE, Defendant-Appellant.
CourtNew Jersey Superior Court – Appellate Division

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).

Charles A. Fiore, Gloucester County Prosecutor, attorney for respondent (Staci L. Scheetz, Assistant Prosecutor, on the brief).

Appellant filed pro se supplemental briefs.

Before Judges Koblitz, Ostrer and Currier.

The opinion of the court was delivered by


In this post-conviction relief (PCR) appeal, one novel issue merits in-depth discussion: may a defendant waive a previously asserted right to represent himself by acquiescing in his representation by counsel. Federal courts have addressed the issue, but our state courts have not. We conclude that a defendant, by his or her conduct, may waive the right of self-representation. But, whether a defendant has done so is a fact question. To conclude that a defendant has waived an asserted right of self-representation, the evidence must clearly demonstrate that the defendant intentionally relinquished the known right of self-representation. We remand for an evidentiary hearing so the court can determine whether defendant waived his right.

The trial court also rejected multiple claims of ineffective assistance of counsel, concluding they failed to meet the two-pronged Strickland test of non-professional assistance and prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We address those below, following our discussion of the self-representation issue, and conclude that one of those claims also warrants exploration at an evidentiary hearing. In all other respects, we affirm the trial court's denial of PCR.


After a 2007 trial, a jury found defendant guilty, as an accomplice, of purposeful murder of Charles Mosley. The State's case rested largely on the testimony of two criminal offenders. Larry Graves confessed to killing Mosley, but testified that he did so at defendant's request, made when they were both in jail together. Graves said he killed Mosley to prevent him from testifying against defendant in an upcoming trial for attempted murder of Mosley. The other witness was Salvatore Puglia, a drug dealer, who elicited statements from defendant about the homicide in a covertly recorded conversation. We assume the reader's familiarity with these and other underlying facts, which the Supreme Court reviewed in detail in affirming defendant's conviction on direct appeal. State v. Rose, 206 N.J. 141, 146-52, 19 A.3d 985 (2011). We focus here on defendant's assertion of the right to represent himself.

Defendant declared he wanted to "go pro se" after he unsuccessfully sought to replace his assigned counsel. In a June 14, 2006 letter to Judge Walter L. Marshall, Jr., defendant asked that his attorney "be removed from [his] case" because the attorney had not met with him or requested information about witnesses. Eight days later, having "not heard anything" from the court or counsel, defendant wrote again, asking the court "to appoint another attorney to represent" him.

At a bail review hearing on July 24, 2006 before a different judge, defendant renewed his complaint about counsel. The judge informed defendant that he did not have a right to choose his appointed attorney. Defendant then asserted his right to represent himself. The court deferred a response, insisting that defendant present his request in writing.

The colloquy between the court and defendant was as follows:

Mr. Rose: For the record – so it's on the record, I don't want [my defense counsel] on my case.
The Court: Sir, –
Mr. Rose: He hasn't interviewed a witness. I haven't had one witness interviewed. I haven't had an interviewer come to see me. He could have had people that could have cleared my name already, –
The Court: Okay. Sir – Sir
Mr. Rose: – and we still haven't done that. I don't want him on my case.
The Court: Sir
Mr. Rose: That's all I'm asking, your honor, that you remove him from my case. I'll go pro se. I'll put in a motion to go pro se. I'm not going to court with him purposely trying to sell me out.
The Court: Okay. Let me suggest to you, sir, that you –
Mr. Rose: I understand.
The Court: Notwithstanding the application which you've made verbally. You've not made it in writing yet, which will be considered by the Court if you want to do that, to proceed pro se, the Court would, in any event, appoint an attorney to be your advisor.
Mr. Rose: Yes, sir. Okay.

Two days later, defendant presented his request in a letter to the judge. The State does not dispute that defendant sent the following letter:

Your Honor please except this letter in Lieu of a formal Motion, to dismiss ... my Defense Counsel, and to proceed to Trial Pro-se.
Your Honor on July 24, 2006, I made a Verbal Application before you to dismiss ... my Defense Counsel, and to Proceed to Trial Pro-Se. [Defense counsel] said, I must make my request in writing. So im [sic] making my Application to the court, with a copy being sent to [defense counsel], to remove him as my Defense Counsel, and to Proceed to trial Pro-se. Defense Counsel has continued to ignore my request for Discovery, to interview witnesses, or come to my County Jail to meet with me, to discuss the status of my up coming trial.
So please allow this letter to act as a formal motion to dismiss ... my Defense Counsel and to proceed to trial pro-se.

There is no record that the judge responded, or forwarded the letter to Judge Marshall, who later presided over the trial. Defendant did not thereafter renew his request to represent himself. In a certification supporting his PCR petition, defendant asserted, "The Court and trial counsel failed to address my Motion and it was my understanding that it was denied." He contended he was entitled to a new trial because the court deprived him of his right to represent himself.

The PCR court denied defendant's petition without an evidentiary hearing stating, "Petitioner chose to move forward with trial while being represented by trial counsel, and Petitioner was convicted by the jury. Petitioner cannot now argue that his right to self-representation was violated because he was not pleased with the outcome of the trial."

In his appeal, defendant contends, "The PCR Court erred where it did not determine whether the trial court erroneously required defendant's waiver of counsel request to be made in writing." In a pro se reply brief, defendant argues:

Defendant Zarik Rose, clearly and unequivocally notified the trial court and trial counsel that he desired to proceed pro se, however the court refused to hold a Faretta hearing and refused to allow him to proceed pro se, thereby violating his constitutional right to counsel and his rights to due process of law and a fair trial; if the court finds this issue should have been raised on direct appeal, then direct appeal and PCR counsels rendered ineffective assistance of counsel was ineffective [sic].

The State argues that defendant's argument "is not cognizable via post-conviction relief," noting that PCR is "neither a substitute for direct appeal, R. 3:22-3, nor an opportunity to relitigate cases already decided on the merits, R. 3:22-5." (quoting State v. Preciose, 129 N.J. 451, 459, 609 A.2d 1280 (1992) ). The State also contends defendant never clearly and unequivocally asserted the right to represent himself. Thus, as we understand the argument, we have no cause to reach the issue of the right's waiver.

We review de novo the PCR court's factual findings without an evidentiary hearing. State v. Harris, 181 N.J. 391, 421, 859 A.2d 364 (2004). We also owe no deference to the trial court's conclusions of law. Ibid."A defendant shall be entitled to an evidentiary hearing" before a PCR court if he or she establishes a "prima facie case in support of post-conviction relief," there are "material issues of disputed fact that cannot be resolved by reference to the existing record," and a "hearing is necessary to resolve the claims for relief." R. 3:22-10.


As a threshold matter, we reject the State's contention that defendant's claim that he was denied his self-representation right is procedurally barred. A defendant may seek PCR upon a showing of a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." R. 3:22-2(a). As a corollary to the right to counsel, the right to represent oneself enjoys constitutional protection. See Faretta v. California, 422 U.S. 806, 813-14, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ; State v. King, 210 N.J. 2, 16, 40 A.3d 41 (2012).

As a procedural matter, defendant's claim that his right was denied stands on similar footing with a claim of ineffective assistance of counsel. "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." Preciose, 129 N.J. at 460, 609 A.2d 1280. Likewise, the issue whether defendant waived by conduct his right to represent himself requires, in this case, a review of evidence outside the trial record. That may include evidence of discussions between defendant and his appointed counsel. Those discussions may reflect how defendant perceived the court's non-response to his self-representation request, and whether defendant intentionally relinquished it thereafter. Consequently, defendant's claim is appropriate for PCR review because it could not have been fully considered on direct appeal.

In any event, the court shall not bar a defendant's claim in a first PCR proceeding if it "would result in fundamental injustice." R. 3:22-4(a)(2). In State v. Coon, 314 N.J. Super. 426, 715 A.2d 326 (App. Div. 19...

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