STATE OF NEW JERSEY v. JEFFREY J. SCHELL

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5068-06T45068-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY J. SCHELL,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 28, 2009 - Decided

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-04-0310 and 05-12-1407.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Brent A. Bramnick, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jeffrey J. Schell appeals from his March 16, 2007 conviction and sentence on Indictment No. 06-04-0310, where after a non-jury trial, the judge found him guilty of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) (count one); and fourth-degree distribution of marijuana, N.J.S.A. 2C:35-5b(12) (count two). On appeal defendant maintains that his waiver of his constitutional right to trial by jury was "not knowingly and intelligently made" because the judge failed to provide an explanation of the right to a jury trial. He further asserts that the sentence imposed on that indictment was excessive.

Defendant also appeals from the sentence imposed on Indictment No. 05-12-1407, to which he entered a negotiated plea of guilty to third-degree resisting arrest, N.J.S.A. 2C:29-2a. He argues the sentence is excessive.

We agree with defendant's argument concerning the waiver of his right to trial by jury and therefore reverse his conviction on Indictment No. 06-04-0310 and remand for a new trial. We reject the sentencing claim he advances on Indictment No. 05-12-1407 and affirm the sentence imposed.

I.

On April 6, 2006, a Union County grand jury returned Indictment No. 06-04-0310, which charged defendant with distribution of cocaine and marijuana. In an August 28, 2006 pretrial conference conducted pursuant to Rule 3:9-1, defendant rejected the State's plea offer. The judge assigned a trial date for that indictment, and assigned the same date to three other indictments also pending against defendant. The judge noted that the four cases would be tried back-to-back. During the August 28, 2006 pretrial conference, there was no mention of defendant waiving his right to a trial by jury.

On February 6, 2007, defendant executed a document entitled "Waiver of Jury Trial" on Indictment No. 06-04-0310. The waiver stated, "I am aware of my right[] to have this case tried by a jury. I waive that right and agree that my case will be tried by a judge only." Defendant's lawyer witnessed his signature. Trial began that day with the judge's comment "[w]e are starting now. This is the non-jury trial." Neither the judge nor either of the attorneys made any reference to the "Waiver of Jury Trial" defendant had signed earlier that day. The judge made no inquiry of defendant to determine whether defendant understood he had an absolute right to a trial by jury and was not obliged to waive that right. Nor did the judge conduct a colloquy with defendant to determine whether the waiver was made voluntarily and without any offers or promises having been made to him in exchange for his waiver.

After affording each side the opportunity to make an opening statement, the State called its first witness, an undercover police officer who testified that defendant sold him marijuana and cocaine. The next day, after admitting a DVD and some documents into evidence, the State rested. Defendant rested without calling any witnesses. The judge found defendant guilty on both counts and scheduled sentencing for March 16, 2007; however, the judge afforded defense counsel the opportunity to speak with defendant about resolving the three remaining indictments by negotiated plea in the interim.

On February 15, 2007, defendant entered a negotiated plea of guilty to third-degree resisting arrest, N.J.S.A. 2C:29-2a, under Indictment No. 05-12-1407, in which the State agreed to recommend a four-year term of imprisonment, one year be served without parole eligibility. The sentence would be served consecutively to the sentence imposed in the non-jury trial under Indictment No. 06-04-0310.

On March 16, 2007, the judge sentenced defendant on the drug distribution charges that were the subject of the non-jury trial, imposing on count one a five-year term of imprisonment, two years to be served without parole. The judge imposed a concurrent term of eighteen months imprisonment on count two. On Indictment No. 05-12-1407, to which defendant had entered a negotiated plea of guilty, the judge imposed a four-year term of imprisonment, one year to be served without parole eligibility, consecutive to the sentence on Indictment No. 06-04-0310. The judge found aggravating factor number three, the risk defendant will commit another offense; number six, the extent of defendant's prior record and the seriousness of the crimes of which he had been convicted; and number nine, the need to deter defendant and others from violating the law. He found no mitigating factors. The judge justified the consecutive terms, commenting that each was "a separate distinct crime committed on a separate and distinct date, for which there should be . . . under the law separate and distinct punishment[s]." Pursuant to the terms of the plea agreement, the judge dismissed the two remaining indictments.

On appeal, defendant raises the following claims:

I. DEFENDANT'S WAIVER OF HIS RIGHT TO A TRIAL BY JURY WAS NOT KNOWINGLY AND INTELLIGENTLY MADE BECAUSE THE COURT FAILED TO EXPLAIN TO DEFENDANT HIS RIGHTS ON THE RECORD IN OPEN COURT.

II. THE SENTENCE[S] IMPOSED [WERE] MANIFESTLY EXCESSIVE.

II.

Defendant maintains that a waiver of the right to trial by jury is not valid unless the judge explains to the defendant that he has an absolute right to a trial by jury, and is not obligated to waive that right. Defendant further contends that no such waiver is effective unless and until the judge makes a specific finding that the defendant's waiver of his sacrosanct right to trial by jury is entered knowingly and voluntarily. Defendant argues that "[w]ithout such a verbal exchange, the court approval required under R. 1:8-1(a) was not met," and therefore he is entitled to the reversal of his conviction and the vacating of his sentence on Indictment 06-04-0310.

The State agrees that Rule 1:8-1(a) requires that a defendant put in writing his request for a waiver of trial by jury, and obtain the approval of the court for that waiver. However, the State relies on a portion of our opinion in State v. Wyman, 232 N.J. Super. 565, 568 (App. Div. 1989), where we held that if the jury trial waiver is not in writing, the defendant must "personally place on the record in open court an express and understanding waiver of his . . . right to such a trial." From that language in Wyman, the State argues all that is required is a defendant's statement that he has knowingly and voluntarily waived his right to a jury trial.

The State maintains that during the August 28, 2006 pretrial conference defendant acknowledged he had signed the written waiver of his right to a jury trial, and because he had done so, the waiver was valid. We quote in its entirety the portion of the pretrial conference upon which the State relies:

THE COURT: Did you go over these four trial memos, sir?

[DEFENDANT]: Yes.

THE COURT: You understand what they say?

[DEFENDANT]: Yes.

As is evident from the above colloquy, and contrary to the State's assertions, there was no mention during the August 28, 2006 pretrial conference of defendant's jury trial waiver, much less the detailed colloquy that the Court required in State v. Dunne, 124 N.J. 303 (1991). In Dunne, the Court observed that "a defendant does not have a constitutional right to waive a jury trial and insist on a bench trial. Trial by a jury is the 'normal and, with occasional exceptions, the preferable mode of disposing of issues of fact' in major criminal cases." Id. at 316 (quoting Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 263, 74 L. Ed. 854, 870 (1930)). Consequently, the Court held in Dunne that when a judge reviews a defendant's request to waive a jury trial, the judge 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, . . . it should grant or deny the defendant's request . . . .

[Id. at 317.]

Here, the judge engaged in no discussion with defendant concerning his jury trial waiver. As a result, the judge never informed defendant that he had no obligation to waive his right to a jury trial, nor did the judge ever ascertain, as required by Dunne, that defendant's waiver was "knowingly and competently" given. Ibid. The judge also failed to determine whether the waiver was "tendered in good faith" or instead given to secure some "impermissible advantage." Ibid. Obviously, the judge also failed to provide the "statement of reasons" that Dunne requires. Ibid. Under the circumstances, we are constrained to vacate defendant's conviction on Indictment No. 06-04-0310, as well as the sentence on that indictment.

III.

Defendant also argues that his sentence on Indictment No. 05-12-1407, to which he entered a negotiated plea of guilty, should be reversed as excessive. We reject defendant's claim that the court abused its discretion when it imposed consecutive sentences on the two indictments. That argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, the indictments charged separate offenses committed at separate times with separate objectives. Under those circumstances, consecutive sentences were appropriate. State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

We likewise reject defendant's contention that the sentence imposed on Indictment No. 05-12-1407, four years imprisonment with a one-year period of parole ineligibility, was excessive. Defendant's prior record includes a 1990 conviction for distribution of narcotics within 1,000 feet of a school, and two convictions for robbery, one in 1993 and the other in 1997. Under those circumstances, the judge's finding that aggravating factors three, six and nine applied was based upon sufficient evidence in the record. Defendant does not point to any mitigating factors the judge overlooked.

Moreover, the judge found, as required by N.J.S.A. 2C:43-6b whenever a parole ineligibility term is imposed, that he was "clearly convinced the aggravating factors do substantially outweigh the mitigating factors." Viewing the sentence as a whole, we are satisfied that the sentence of four years imprisonment with a one-year parole ineligibility term does not "shock the judicial conscience," State v. Roth, 95 N.J. 334, 365 (1984), especially in light of the two unrelated indictments that were dismissed pursuant to the plea agreement. We thus affirm defendant's conviction and sentence on Indictment No. 05-12-1407.

Affirmed in part; reversed in part; and remanded.

 

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A-5068-06T4

 

June 19, 2009