STATE OF NEW JERSEY v. PEDRO SOLER

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3533-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PEDRO SOLER,

Defendant-Appellant.

_________________________________________________

December 30, 2011

 

Submitted October 4, 2011 - Decided

 

Before Judges Messano and Yannotti.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0147.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).

 

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Michelle J. Ghali, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Pedro Soler was convicted of two counts of second-degree sexual assault upon M.R., N.J.S.A. 2C:14-2(c)(1), and N.J.S.A. 2C:14-2(c)(3)(b) (Counts Two and Three). The jury acquitted defendant of first-degree aggravated sexual assault. N.J.S.A. 2C:14-2(a) (Count One).1 The trial judge granted the State's motion for an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6.4(e), and N.J.S.A. 2C:44-3(a), merged the two convictions, and sentenced defendant to eighteen years in prison, with an eighteen-year period of parole ineligibility.

Defendant raises the following points on appeal:

POINT I

 

SINCE THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO PROCEED PRO SE, DEFENDANT'S CONVICTION SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

 

POINT II

 

THE TOTALITY OF THE TRIAL COURT'S INSTRUCTION ON "PHYSICAL FORCE" IMPROPERLY SHIFTED THE BURDEN ONTO DEFENDANT TO PROVE A HEIGHTENED DEFINITION OF CONSENT, THEREBY MANDATING THE REVERSAL OF THE SEXUAL ASSAULT CONVICTION. (Not Raised Below)

 

POINT III

 

THE TRIAL COURT'S INSTRUCTION REGARDING "SUPERVISORY OR DISCIPLINARY POWER" PURSUANT TO THE SEXUAL ASSAULT PROVISION OF N.J.S.A. 2C:14-2[(c)(3)(b)] UNDULY FAVORED THE STATE AND WAS INADEQUATE, THEREBY REQUIRING THE REVERSAL OF DEFENDANT'S SEXUAL ASSAULT CONVICTION (COUNT THREE) AND A NEW TRIAL. (Not Raised Below)

 

POINT IV

 

THE IMPOSITION OF AN EXTENDED 18-YEAR SENTENCE OF IMPRISONMENT WAS EXCESSIVE.

 

We have considered these arguments in light of the record and applicable legal standards. We affirm but remand the matter for entry of an amended judgment of conviction.

I.

In the fall 2005, sixteen-year-old M.R., a high school senior, met Javier Romero in a bank. Romero told her of a potential job opening at his company, Point Management Group, and the two exchanged phone numbers. In December, Romero called M.R. at home and left a message that a secretarial position was open. M.R. returned the call, spoke to an individual known as "Peter," and arranged to go to the office for an interview on December 15.2

When she arrived at Point Management's offices, M.R. was greeted by defendant, who "looked very professional" and "seemed to be very approachable." He told M.R. to come back the next day, which she did. Defendant administered a typing test, conducted a further interview and offered M.R. a job beginning the following Monday, December 19.

M.R. arrived at the office on Monday afternoon after finishing school. After she was there for approximately forty minutes, defendant called her into his office. He asked "if [she] ever stepped outside the box." Defendant then asked M.R. if she would "mind going out to lunch with [him]?" She agreed, and defendant told M.R. to tell the office manager that she had to leave "to do something for school."

M.R. did as defendant asked and returned to defendant's office. He told her to leave first, and that he would follow and meet her outside. When M.R. left the office, defendant was already outside waiting in his car. M.R. got into the car and defendant drove to a building on Route 22 and parked. M.R. noticed the building "had no sign," but she saw other cars parked outside.

Once inside, M.R. realized the establishment was a "go-go bar." Several of the scantily-clad dancers addressed defendant by name, and M.R. concluded that defendant was "a regular." Defendant ordered drinks for himself and M.R. After approximately an hour, M.R. felt dizzy and nauseous, went to the bathroom and vomited. Several of the dancers came into the bathroom to make sure she was alright, and one warned her "to be careful." When M.R. returned to the bar, defendant took her to a back room that was dark and designated for private "lap dances." He sat her in a chair, began kissing her and removed her pants and underwear.

Defendant performed oral sex on M.R. and penetrated her vagina with his fingers and penis. She explained:

I didn't know what to think. It just felt, kind of, like it was a blur at that moment. . . . I didn't know what was going on, and on top of that I see him doing these things, but then I can't, I can't seem to respond with my body to what is going on.

 

M.R. told defendant "no," but could not "physically resist." Defendant ignored her pleas, picked her up from the chair and penetrated her vagina with his penis.

Defendant eventually stopped, pulled up M.R.'s pants and spoke to another man in the room, asking him to take M.R. home. That man, James Ball, led M.R. to his car and drove her home. Defendant paid Ball $50. The State called a number of other witnesses, including the bartender and several dancers from the bar, "Shooters." They corroborated much of M.R.'s version of the events, including her state of intoxication, and defendant's conduct in the "lap dance" room.

Too embarrassed to inform her mother, M.R. called a close friend who came to her house. M.R. told him about the incident. The next day, while at school, M.R. told another friend about the assault, who convinced M.R. to go to the emergency room at Trinitas Hospital on Thursday. A forensic examination was performed and samples were taken by a nurse using a sexual assault evidence kit. M.R. spoke to the police about the assault. It was stipulated that subsequent analysis of M.R.'s clothing and swabs taken from her cervix revealed the presence of defendant's semen and sperm.

Defendant elected not to testify but called several witnesses, including his wife. The thrust of this testimony was that defendant had no authority to hire employees at Point Management, and that M.R. was never employed by the company.

II.

Defendant first contends that the judge improperly denied his request to proceed pro se. The issue arose in the following context.

Prior to jury selection, defendant told the judge he wanted to relieve his counsel because he believed his attorney was not devoting the appropriate amount of time to the case or sharing information with him in a timely manner. Defense counsel refuted this, explaining that he had reviewed the case thoroughly, interviewed witnesses and was prepared for trial.

Noting the age of the case, the judge engaged in direct colloquy with defendant. He asked whether defendant wanted a different lawyer, or whether he intended to represent himself. Instead of answering directly, defendant began to list the alleged errors of his former attorneys.3 The judge again asked, "[d]o you wish to go to trial by yourself." Defendant again avoided answering, leading defense counsel to request a short recess.

When defendant returned, he told the judge he wished to represent himself. The judge explained what that entailed and asked whether "that [was] what [defendant] want[ed] to do." Defendant indicated he would try, despite "not [being] trained for this." The judge then explained in detail other issues that defendant should consider before deciding to proceed pro se.

Defendant equivocated, telling the judge, "I don't know[,] I just feel like I'm not guilty." After further colloquy, defendant told the judge, "I really want my attorney to be . . . my attorney the way he should be at a trial." Defendant believed his attorney's recommendation that he accept the State's plea bargain offer would cause him to be ineffective at trial.

The judge again asked defendant whether "you want to represent yourself when we start the trial or do you want your attorney to do the talking?" Defendant asked counsel whether he could "fight this. Yes or no?" Defense counsel explained that he could "try any case," but reiterated his advice that defendant accept the State's offer.

The following occurred:

Defense counsel: Is that what you want to do? You've got to give the Judge an answer . . . . You've got to answer on the record. They record this stuff.

 

Judge: I see you [(defendant)] shaking your head, you're nodding your head yes. We'll do that.

 

Defendant did not raise any further objection to the judge's conclusion that he wished to continue the trial with counsel. The prospective jurors were brought in for a first round of jury selection prior to a luncheon recess.

After luncheon recess, the court conducted a pretrial N.J.R.E. 104 hearing. Before any testimony took place, defense counsel told the judge, "I['d] like to make clear, my client reiterated to me again before lunch break, he intends to conduct the examinations himself." The judge responded:

We had a hearing this morning, as you may recall, for about an hour and a half, went over all the questions, and at the end of all the questions, he chose to have you represent him.

 

Now, apparently, since you chose to represent him, and we are halfway through picking the jury, he now changed his mind, again . . . . Only one shot at the apple. When the Court makes the rulings and you make the choice to have the lawyer represent you during the trial, that is the choice you make. You can't change your mind during the middle of the trial.

 

The trial is going on. You are the lawyer. I direct you are to be the lawyer. He's not permitted to do the questioning, himself. He had that opportunity once before, and he chose to have you do it. I think that was a wise choice and good choice. . . .

 

After the State completed direct examination of the witness, defense counsel told the judge, "My client wishes to proceed on his own. He has no questions, nor do I."

The judge noted that "once a defendant exercises [his] right and chooses to have his lawyer represent him, when he wants to go pro se, he can't." The following colloquy took place:

Defense counsel: My client's contention is that he did not affirmatively waive his right to represent himself at the time. In fact, I don't think he answered verbally.

 

. . . .

 

Judge: Do you acknowledge that when we went through it he affirmatively indicated he wanted you to represent him?

 

Defense counsel: . . . [H]e was nodding, he hadn't answered verbally.

 

. . . .

 

My client did not wish to affirmatively waive his right. He wishes to proceed on his own. He instructed me to say he has no questions for this proceeding, but he wants to represent himself. . . .

 

The judge took a recess during which he listened to the "tape" of the morning's proceedings. The judge noted that when asked if he wanted to "proceed with [his] attorney doing the questioning at trial," defendant "shook his head up and down a number of times." The judge found defendant had "made a knowing decision to have his attorney represent him." The judge further noted:

This defendant is unhappy with the plea bargain the Prosecutor has given, and that is the focus, and he wants this trial not to proceed, and the Court is going to proceed with this trial, as the attorney is ready, prepared, and is going to fight very hard for him. The defendant cannot, an hour or two hours after we make this decision to choose to change his mind again.

 

Defendant interrupted, telling the judge, "[Y]ou asked for a verbal answer and I didn't give it to you at the moment . . . ." The judge rejected any explanation, and reiterated that defendant clearly nodded his assent and decided to proceed to trial with counsel.

A "[d]efendant possesses both the right to counsel and the right to proceed to trial without counsel." State v. DuBois, 189 N.J. 454, 465 (2007). In State v. Crisafi, 128 N.J. 499, 509 (1992), the Court explained that a defendant may "exercise the right to self-representation only by first knowingly and intelligently waiving the right to counsel."

[W]hen determining whether a waiver of counsel is knowing and intelligent, trial courts must inform defendant 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 lack of knowledge of the law may impair defendant's ability to defend himself; (5) the impact that the dual role of counsel and defendant may have; and (6) the reality that it would be unwise not to accept the assistance of counsel.

 

[DuBois, supra, 189 N.J. at 467 (citing Crisafi, supra, 128 N.J. at 511-12.]

 

In State v. Reddish, 181 N.J. 553 (2004), the Court added additional requirements to the process, specifically,

(1) the discussions should be open-ended for defendants to express their understanding in their own words; (2) defendants should be informed that if they proceed pro se, they will be unable to claim they provided ineffective assistance of counsel; and (3) defendants should be advised of the effect that self-representation may have on the right to remain silent and the privilege against self-incrimination.

 

[DuBois, supra, 189 N.J. at 468 (citing Reddish, supra, 181 N.J. at 594-95.]

 

We review the judge's determination that defendant's waiver of his right to self-representation was knowing and intelligent pursuant to an abuse of discretion standard. DuBois, supra, 189 N.J. at 468.

Additionally, "[t]he right of self-representation cannot be insisted upon in a manner that will obstruct the orderly disposition of criminal cases." State v. Buhl, 269 N.J. Super. 344, 363 (App. Div.), certif. denied, 135 N.J. 468 (1994). In Buhl, id. at 364, we affirmed the trial court's denial of the defendant's request to proceed pro se, noting "his . . . frequent changes of mind regarding whether he wished to be represented by a lawyer and, if so, what his role was to be." We further noted, "A defendant does not have a constitutional right to choreograph counsel's role." Ibid.

Here, the judge scrupulously followed the dictates of Crisafi/Reddish. Defendant indicated a desire to have counsel continue his representation. Any equivocation that occurred thereafter was, as the judge found, defendant's attempt to delay the trial and "choreograph counsel's role." We find no basis to reverse.

III.

We next consider the two arguments defendant makes regarding the judge's charge. Since there was no objection lodged at trial, we must consider first whether the instructions were erroneous and then whether they amounted to plain error. See R. 2:10-2.

"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the affect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Additionally, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment." State v. White, 326 N.J. Super.304, 315 (App. Div. 1999), certif. denied, 163 N.J.397 (2000).

A.

Defendant was charged with sexual assault in violation of N.J.S.A. 2C:14-2(c)(1), which provides that a person "is guilty of sexual assault if he commits an act of sexual penetration with another person . . . [and] uses physical force or coercion, but the victim does not sustain severe personal injury." Defendant contends that the jury charge regarding physical force resulted in a "heightened definition of consent, contrary to the initial charge on consent." We think the argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2).

In In re M.T.S., 129 N.J. 422, 444 (1992), the Supreme Court defined "physical force" for purposes of the statute. Rejecting the archaic requirement that physical force must be used to overcome a sexual assault victim's will, the Court held that "any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault." Ibid.

Here, the judge appropriately utilized Model Jury Charge (Criminal), "Sexual Assault (Force/Coercion)," (revised 1/24/05), which incorporates the principles enunciated in M.T.S. He also provided Model Jury Charge (Criminal), "Consent (Which Negates an Element of the Offense)," (revised 10/17/88), since defendant's argument to the jury was that he and M.R. engaged in consensual sexual activity.

Although no objection was lodged at trial, defendant now claims that under the facts of the case, providing the two charges placed the burden upon him to prove M.R.'s lack of consent under a "heightened" standard. We think the instructions were appropriate, did not conflict with each other, and certainly did not place any burden of proof upon defendant. The charges provided the jury with "sufficient guidance" and did not create any "risk that the . . . ultimate determination of guilt or innocence [was] based on speculation, misunderstanding, or confusion." State v. Olivio, 123 N.J. 550, 567-68 (1991).

B.

Defendant was also charged with a violation of N.J.S.A. 2C:14-2(c)(3)(b), which provides that a person "is guilty of sexual assault if he commits an act of sexual penetration with another person . . . [who] is at least 16 but less than 18 years old and . . . the [defendant] has supervisory or disciplinary power of any nature or in any capacity over the victim." Defendant contends that the jury charge on this count was flawed because it failed to adequately define supervisory power and address the "considerable" evidence "that [M.R.] was not . . . an employee . . . ." Once again, we think the argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2).

The judge provided an instruction that tracked Model Jury Charge (Criminal), "Sexual Assault -- Victim at least 16 but less than 18," (revised 3/10/08). That charge, in turn, reflects our holding in State v. Buscham, 360 N.J. Super. 346, 362 (App. Div. 2003), in which we urged trial judges to tailor the definition of "supervisory or disciplinary power" to the facts of the case.

In our opinion, the judge in this case clearly did that when he told the jury to consider

the entire context of the relationship between the defendant and [M.R.]. To do so you should consider the nature of the relationship between the defendant and the victim, and whether the relationship was so unequal as to vest supervisory power in the defendant.

 

Among the factors you may consider are whether there was a significant disparity in the ages and/or the maturity level between the defendant and the victim. Whether the defendant had the power or the ability as her employer to effect her occupational status or career.

 

The charge was entirely appropriate.

As to the lack of any comment regarding the evidence that M.R. was not an employee, we note that defense counsel adequately argued the point to the jury. The judge's failure to remind the jury about the evidence was not error.

 

IV.

Defendant argues his sentence was excessive. He contends the judge erroneously relied on his prior criminal record rather than considering the severity of the crime. According to defendant, there was nothing about the sexual assault, although "tawdry and disturbing, that made it somehow more severe than any other similar offense."

The judge found that defendant had numerous municipal court convictions, convictions for "dealing in stolen property" in Florida in 1993 and sexual assault in 1997, and was recently convicted of sexual contact. He found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of recidivism); (6) (seriousness of the crime and defendant's record); and (9) (need to deter). The judge found no mitigating factors.

The judge concluded defendant was eligible for an extended term as a persistent offender. See N.J.S.A. 2C:44-3(a) (defining "persistent offender"). Additionally, the judge concluded that defendant was eligible for an extended term pursuant to N.J.S.A. 2C:43-6.4(e). That statute provides: "A person who, while serving a special sentence of parole supervision for life . . ., commits a violation of . . . N.J.S.[A.] 2C:14-2, . . . shall be sentenced to an extended term of imprisonment . . . which term shall . . . be served in its entirety prior to the person's resumption of the term of parole supervision for life."

The judge merged the two counts for which defendant was convicted, concluded that an eighteen-year sentence was appropriate and ordered it be served consecutive to the sentence defendant was currently serving. The judge also concluded that pursuant to N.J.S.A. 2C:43-6.4(e), a mandatory period of parole ineligibility was required for the entire term of the sentence. He imposed an eighteen-year period of parole ineligibility.4

It is undisputed that defendant was eligible for an extended term pursuant to N.J.S.A. 2C:44-3(a). When imposing a discretionary extended term under that statute:

The sentencing court must first . . . determine whether a defendant's criminal record of convictions renders him or her statutorily eligible. If so, then the top of the range of sentences applicable to the defendant . . . becomes the top of the enhanced range. Thereafter, whether the court chooses to use the full range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public. Consideration of the protection of the public occurs during this phase of the sentencing process.

 

[State v. Pierce, 188 N.J. 155, 168 (2006).]

 

The judge expressly followed this procedure in this case, noting "society needs to be protected from future offenses by this defendant and others." Additionally, the judge noted that an extended term was required pursuant to N.J.S.A. 2C:43-6.4(e).

"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" State v. Blackmon, 202 N.J. 283, 296-97 (2010) (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). As the Court has noted, "adherence to the Code's sentencing scheme triggers limited appellate review." State v. Cassady, 198 N.J. 165, 180 (2009). "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (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 "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).

The sentence imposed in this case was not a mistaken exercise of the judge's broad discretion and we find no reason to disturb it.

The judgment of conviction in this case, however, contains two errors. First, it does not reflect the judge's decision to merge Counts Two and Three; instead, the judgment of conviction indicates that the judge imposed a four-year sentence on Count Three, consecutive to the sentence imposed on Count Two. Second, the judgment of conviction indicates that defendant's period of parole ineligibility was "85% of [the] maximum term." In actuality, the judge imposed an eighteen-year period of parole ineligibility pursuant to N.J.S.A. 2C:43-6.4(e). We remand the matter to the trial court for entry of a corrected judgment of conviction.

Affirmed; remanded for entry of an amended judgment of conviction. We do not retain jurisdiction.

1 Count Four of the indictment, charging defendant with third-degree witness tampering, N.J.S.A. 2C:28-5(a), was dismissed on defendant's motion at trial. A fifth count charged co-defendant Javier Romero with witness tampering. Defendant and Romero were tried separately.

2 M.R. turned seventeen-years old in October 2005.

3 Defendant had recently been convicted of other charges in a different indictment and was serving that sentence when the trial on this indictment began.

4 Defendant has not raised, and we therefore do not consider, whether the statutory language requiring the judge to impose "an extended term of imprisonment . . . which term shall . . . be served in its entirety prior to the person's resumption of the term of parole supervision for life," N.J.S.A. 2C:43-6.4(e), requires a mandatory period of parole ineligibility equal to the entire sentence imposed.