STATE OF NEW JERSEY v. SEAN LEHNER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3207-05T43207-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEAN MARTIN LEHNER,

Defendant-Appellant.

_________________________________

 

Submitted December 18, 2006 - Decided January 4, 2007

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County,

04-07-0798.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Sean Lehner, was indicted by a Burlington County grand jury on July 20, 2004, for third-degree arson, N.J.S.A. 2C:17-1b(5). On April 18, 2005, defendant rejected the State's plea offer and the trial judge set a trial date for May 17, 2005. At that time, the trial judge informed defendant that if he did not appear at trial on May 17 the court could proceed without him. Defendant acknowledged that he understood.

On May 17, defendant failed to appear. Defendant's counsel indicated to the judge that his "office received a call after hours" on May 16 "saying that [defendant] had a [staph] infection or some other kind of infection that [defendant] says he incurred at the Camden County Jail in a recent visit there, which has interfered with his ability to be here." Counsel added: "My most recent information is that he is at this moment at Family Medicine on Route 38 . . . . It's not a hospital but it's associated with Virtua Memorial Hospital here in the town." The judge then indicated that they had waited until 9:40 a.m. to start the trial and go through pretrial matters. He noted that defendant's counsel had reached out to defendant to tell him to be in court. He also pointed out that defendant's visit to the Camden County Jail was five months earlier and that defendant had "been on trial before this Court" within the last two months.

Relying on State v. Hudson, 119 N.J. 165 (1990), the judge decided to proceed with a Miranda hearing. Testimony was taken from State Police Trooper Daniel Deichman and State Police Detective Blaire Atsbury regarding their investigation of a brush fire at Brendan Byrne State Forest in Woodland Township and defendant's statements regarding his involvement following their issuance of his Miranda warnings. Following the testimony of both troopers, the judge found that defendant had been properly advised of his rights, had knowingly and voluntarily waived them, and his statements were admissible at trial.

The trial commenced and concluded on May 18, 2005. The State presented testimony from both Deichman and Atsbury. The jury began its deliberations at 2:55 p.m. and returned a guilty verdict at 4:10 p.m. Defendant was not present at trial. On August 5, 2005, the trial judge imposed a three-year term of incarceration. Defendant did not move for a new trial pursuant to R. 3:20-2.

On appeal, defendant raises the following point:

THE TRIAL JUDGE ERRED IN FAILING TO CONDUCT AN ADEQUATE INQUIRY INTO THE CIRCUMSTANCES OF DEFENDANT'S ABSENCE AT THE COMMENCEMENT OF TRIAL BEFORE PROCEEDING IN HIS ABSENCE. IN THE ALTERNATIVE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE FOR A CONTINUANCE AND A NEW TRIAL.

R. 3:20-2 provides that "[a] motion for a new trial based on a claim that the defendant did not waive his or her appearance for trial shall be made prior to sentencing." The absence of such a motion supports the finding that a defendant waived his or her right to be present at trial under R. 3:16(b). State v. Mahone, 297 N.J. Super. 524, 529-30 (App. Div.), aff'd, 152 N.J. 44 (1997). Therefore, on this record, we reject defendant's contention that the judge erred in determining that defendant knowingly waived his right to attend his trial.

However, the information possessed by trial counsel and whether the failure to file a R. 3:20-2 motion represents ineffective assistance of counsel is beyond the record presented in this appeal. We, therefore, decline to determine defendant's alternate claim that he received ineffective assistance of counsel. Defendant may raise his claim of ineffective assistance of counsel in a petition for post-conviction relief pursuant to R. 3:22-1, where an evidentiary record may be developed for review. See State v. Preciose, 129 N.J. 451, 459-60 (1992).

"A criminal defendant's right to be present at trial also is a condition of the Due Process Clause of the Fourteenth Amendment to the extent that a defendant's absence would hinder a fair and just hearing." State v. Whaley, 168 N.J. 94, 99-100 (2001). A defendant's right to be present is not absolute. Id. at 100. If so, defendants would have the power to prevent trials from proceeding by not showing up. Ibid. The principle of waiver was established to "reconcil[e] . . . a defendant's constitutional right with the criminal justice system's practical need to pursue justice when a defendant absents himself." Ibid. This balance is codified in R. 3:16(b). The Rule creates an inference of waiver of the right to be present at trial if certain facts are established. R. 3:16(b) provides in pertinent part:

The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found . . . from . . . the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date . . . .

The Rule was amended based upon the holding in Hudson, supra, 119 N.J. at 182-84, which eliminated the distinction between defendants who fail to appear at the commencement of trial and those who fail to appear thereafter.

The Rule now requires a defendant to receive actual notice before the right to be present is waived. R. 3:16(b). "[I]n order to sustain a waiver of the right to be present, it must be shown the trial date was actually communicated to the defendant and the accused unjustifiably failed to appear." State v. Davis, 281 N.J. Super. 410, 416 (App. Div. 1995), certif. denied, 145 N.J. 376 (1996). A trial court may infer a waiver of a defendant's right to appear pursuant to R. 3:16(b) and proceed to try a defendant in absentia where the defendant fails to appear for trial after being informed in court of the trial date, without asserting a justifiable excuse. State v. Finklea, 147 N.J. 211, 219 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997); see also Hudson, supra, 119 N.J. at 182.

Moreover, defendants wishing to assert that they did not waive their right to appear at trial are required to make a motion for a new trial prior to sentencing, pursuant to R. 3:20-2. Finklea, supra, 147 N.J. at 220. At the new trial hearing, the burden is on the defendant to establish why a voluntary absence at trial following receipt of actual notice of the trial date does not constitute a knowing and voluntary waiver. Ibid. "The State does not have the burden of proving that a defendant's absence is unjustified." Ibid. It is the defendant's burden to prove that his or her absence was justified. Ibid. Indeed, the failure to make the appropriate motion challenging the waiver "constitutes a second waiver." Id. at 221.

 
Here, defendant was informed of the scheduled trial date and understood it was necessary for him to appear and that the court could proceed without him in his absence. Further, defense counsel was given the opportunity to contact defendant and tell him that the Miranda hearing and trial were proceeding as scheduled. Defendant's purported, unconfirmed, medical excuse never reached the level establishing that he was unable to attend trial. Seeking medical assistance at a non-emergency facility is not equivalent to the inability, for medical reasons, to attend trial. More importantly, defendant's failure to seek redress by filing a motion for a new trial and establishing justification for not appearing constituted a ratification of his knowing and voluntary waiver to be present at the time of trial.

Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Deichman testified that he gave defendant his Miranda warnings at the scene of the fire, after which defendant stated that "he might have thrown a little cigarette into the brush and started the fire." Atsbury gave defendant his Miranda warnings at the barracks after his arrest and obtained a taped statement in which defendant admitted to lighting a piece of straw on fire on the side of the road.

(continued)

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A-3207-05T4

January 4, 2007