SUPERIOR COURT
OF NEW
APPELLATE
DIVISION
DOCKET NO.
A-368-01T4
CRIMINAL
ACTION
STATE OF NEW JERSEY, ON APPEAL FROM
Plaintiff-Respondent, FINAL JUDGMENT OF CONVICTION
v. SUPERIOR COURT
LAW DIVISION
EDWARD R. FORCHION,
Defendant-Appellant.
SAT BELOW
Hon. Stephen W.
Thompson, J.S.C.
(Partial Jury Trial,
Plea & Sentencing)
Hon. Thomas A. Brown,
Jr., J.S.C.
(Suppression Motion)
Hon. Ronald J. Freeman,
J.S.C.
(Prestrial
Motions)
Hon. Linda G. Baxter Rosenzweig, J.S.C.
(Pretrial Motions)
___________________________________________
REPLY LETTER
BRIEF ON BEHALF OF DEFENDANT-
APPELLANT
EDWARD R. FORCHION
___________________________________________
YVONNE SMITH
SEGARS
Public Defender
Office of the Public Defender
31 Clinton
Street, 9th Floor
(973) 877-1200
JOHN VINCENT SAYKANIC,
ESQ. THE DEFENDANT IS
CONFINED
Designated Counsel
Of Counsel and on the
Reply Letter Brief
YOUR HONORS:
Kindly accept this reply letter brief in lieu of a formal brief
pursuant to R. 2:6-2(b).
TABLE OF
CONTENTS
Page No.
PROCEDURAL HISTORY
..........................................
1
STATEMENT OF FACTS
..........................................
1
LEGAL ARGUMENT:
POINT I
DEFENDANT SHOULD
BE PERMITTED TO APPEAL EVERY
ISSUE RAISED
IN DESIGNATED COUNSEL’S BRIEF
AND IN THE PRO
SE SUPPLEMENTAL BRIEF SINCE
TO BAR THE
DEFENDANT FROM RAISING ALL OF HIS
ISSUES WILL
VIOLATE HIS FOURTEENTH AMENDMENT
DUE PROCESS
RIGHTS AND NOT SERVE THE
INTERESTS OF
JUSTICE
..................................
3
POINT II
DEFENDANT
SHOULD BE PERMITTED TO APPEAL
EVERY ISSUE
RAISED IN DESIGNATED COUNSEL’S+
BRIEF AND IN
THE PRO SE SUPPLEMENTAL BRIEF
SINCE THERE
WAS NO VALID WAIVER OF THE
RIGHT TO
APPEAL AS REQUIRED BY THE FIFTH,
SIXTH AND
FOURTEENTH AMENDMENTS
...................... 8
POINT III
DEFENDANT
SHOULD BE PERMITTED TO APPEAL EVERY
ISSUE RAISED
IN DESIGNATED COUNSEL’S BRIEF
AND IN THE PRO
SE SUPPLEMENTAL BRIEF SINCE
STANDBY COUNSEL
ADVISED HIM THAT HE COULD DO
SO AND TO
PRECLUDE DEFENDANT FROM RAISING
THESE ISSUES
ON APPEAL WILL CONSTITUTE
INEFFECTIVE
ASSISTANCE OF COUNSEL ....................... 11
POINT IV
DEFENDANT
SHOULD BE PERMITTED TO APPEAL EVERY
ISSUE RAISED
IN DESIGNATED COUNSEL’S BRIEF
AND IN THE PRO
SE SUPPLEMENTAL BRIEF SINCE
THE DOCTRINE
OF FUNDAMENTAL FAIRNESS MANDATES
SUCH AND
ISSUES OF PUBLIC IMPORTANCE EXIST .............. 13
CONCLUSION
................................................... 15
APPENDIX:
Order Granting Certificate
of Appealability (Scherzer v.
Ortiz, decided September 12,
2003) ....................... Ra1
i
PROCEDURAL HISTORY
Defendant has filed a pro se
supplemental brief (containing 12 Points) along with a supplemental appendix, a
Motion to Supplement the Appellate Record, along with a Motion for Leave to
file this reply letter brief nunc pro tunc.
STATEMENT OF FACTS
Concerning the issue of whether defendant waived any
issues on appeal, it cannot be overemphasized that at the September 18, 2000
pretrial hearing before Judge Thompson, the defendant stated: “I would still
like to file an interrogatory (sic) notice of appeal of the September 11th
rulings.” (19T6-12 to 13). The
prosecutor was present and he never stated that defendant would not be able to
appeal these rulings. Judge Thompson
also did not state that the defendant could not appeal. (Standby counsel was
not present in court at the time; 19T4-12 to 13)). Thus, it is clear that the defendant
understandably believed that he had the right to appeal every pretrial issue.
At the plea on September 20, 2000, the prosecutor
stated: “The defendant has waived his right to appeal as to all these cases.”
(21T8-6 to 7). Except for this one
sentence there is no other mention of any waiver of defendant’s right to appeal
all issues—-the judge never voir dired the defendant to determine if the waiver
was knowingly and voluntarily made. This
in spite of the fact that the judge thoroughly questioned the defendant as to
many other rights that he was giving up due to his guilty pleas, including:
“the right to continue cross-examining the witnesses
1
as well as testifying yourself or asking questions of any witnesses”; the
right to remain silent (21T11-16 to 19); and the right to have the State prove
him guilty beyond a reasonably doubt. (21T11-11 to 25). Defendant also replied affirmatively when
advised by the court that he would have a criminal record as a result of the
pleas. (21T12-14 to 16).
The judge elicited from the defendant an allocution as
to each of the counts to which he was pleading guilty. (21T18-13 to
23-23). The judge also questioned the
defendant as to the “Waiver of Indictment Form,” and the defendant stated that
he understood that he was giving up the right to have a grand jury hear the
case. (21T23-11 to 15; 24-17 to 7).
Neither the judge nor standby counsel ever placed
anything on the record as to the defendant’s waiver of his right to appeal any
issues.
Additionally, as explained in the pro se
supplemental brief, defendant’s standby counsel advised him that he would have
the right to appeal the pretrial issues raised by the defendant in spite of his
plea. Defendant relied upon counsel’s
representations that he could appeal when he entered the plea. (See Pro Se
brief, at page 59).
2
LEGAL ARGUMENT
POINT I
DEFENDANT
SHOULD BE PERMITTED TO APPEAL EVERY
ISSUE RAISED
IN DESIGNATED COUNSEL’S BRIEF
AND IN THE PRO
SE SUPPLEMENTAL BRIEF SINCE
TO BAR THE
DEFENDANT FROM RAISING ALL OF HIS
ISSUES WILL
VIOLATE HIS FOURTEENTH AMENDMENT
DUE PROCESS
RIGHTS AND NOT SERVE THE
INTERESTS OF
JUSTICE*
The State argues in its brief that by pleading guilty
the defendant waived all issues on appeal “except for his challenge to the motion
to suppress hearing and to the sentence for which he negotiated.” (Pb19). The State claims that: “Throughout the motion
to withdraw from the guilty plea and during the sentencing hearing, neither
defendant nor his legal advisor indicated in any manner that they intended to
appeal from the lenient plea offer.” (Pb21).
Finally, the State writes: “A specific condition of the plea offer was
defendant waiving his right to appeal as to all of these cases pursuant to R.
3:9-3(d). (21T8-6 to 7).” (Pb20).
The State cites State v. Robinson, 224 N.J.
Super. 495 (App. Div. 1988) for the principle that under New Jersey
practice, notwithstanding a guilty plea, a defendant may appeal from the denial
of his motion to suppress (R. 3:5-7(d)), from the denial of admission
into pretrial intervention (R. 3:28(g)), and,
with the consent of the court and approval of the prosecutor, from any
other pretrial order when the issue is preserved. R. 3:9-3(f). (Pb 18).
_______________________________________
* This issue is in reply to Point I of the
State’s brief.
3
However, the State does not cite R. 3:9-3(d),
which provides:
Whenever a
plea agreement includes a provision that defendant will not appeal, the
court shall advise the
defendant that notwithstanding the inclusion of this provision, the defendant
has the right to take a timely appeal if the plea agreement is accepted, but that if the defendant does so, the plea agreement maybe annulled
at the option of the prosecutor, in which event all charges shall be restored
to the same status as immediately before the entry of the plea. In the event
the defendant files an appeal in a case in which the plea agreement included a
provision that the defendant will not appeal, the State must exercise its right
to annul the plea agreement no later than seven days prior to the date
scheduled for oral argument or submission without argument. (Emphasis
supplied).
Additionally, in State v.
Matos, 273 N.J. Super. 6 (App. Div. 1994), the Court held that the
defendant’s appeal of an order denying enforcement of a plea agreement was not
barred on the ground that the prosecutor did not sign the plea form that
contained a handwritten statement that defendant would appeal the pretrial
motions, where, when defendant’s guilty plea was accepted, the prosecutor did
not take exception to defense counsel’s statement that there would be appeals
made from the pretrial motions, and that defense counsel specifically asserted
that the refusal to enforce the plea agreement was one of the pretrial motions
that would be appealed.
In State v. Stephenson, 350 N.J. Super.
517 (App. Div. 2002), the Appellate Division rejected the State’s argument that
4
the Court should not consider the substance of defendant’s appeal
because it involved a Miranda issue, and not a Fourth Amendment search
and seizure issue. Similarly, in State
v. Brown, 352 N.J. Super. 338 (App. Div. 2002), the defendant
entered a plea that was unconditional.
In spite of this, the Appellate Division held that the defendant could raise
the Miranda issue on appeal, finding that “the interests of justice would not
be served by our refusing to resolve the issue.”
In Forchion, due to the
refusal of the OPD to provide the necessary and proper legal
defenses/resources, the defendant was forced to proceed and to raise these
defenses pro se. (Pro se motion annexed at Da 24 to
36). The defendant, who has no legal
training, raised the following in limine motions:
1) N.J.S. 2C:35-5a(1) and b.10(a) are
unconstitutional as
they violate (among other laws), the Free Religion Exercise Clause of the
First Amendment as defendant is a practicing Rastafarian. Defendant moved pro se to
dismiss the Indictment on this ground. (Da 141 to 152). On September 11, 2000, Judge Brown denied the
motion. (17T5-7 to 9; Da 181). This
issue was properly argued, preserved for appeal, and is now raised in Point
II of counsel’s brief, and in Points VII and VIII of the
defendant’s supplemental brief.
2) N.J.S. 2C:35-5a.(1) and 2C:35-5b.(10)(a) are
unconstitutional on the grounds of “medical necessity,” mandating dismissal of
the indictment. Defendant moved pro
se to dismiss the indictment on this ground. (Da 141 to 147). On September 11,
5
2000, Judge Brown denied the motion to dismiss the indictment based upon
medical necessity. (17T9-18 to 10-3; Da 181).
This issue is raised in Point III of counsel’s brief, and in Point
XII of the supplemental brief.
3) Defendant was denied his right to effective counsel
and to a fair trial by the failure of the OPD and trial judge to permit the
defense of jury nullification. Defendant
raised this
pretrial (Da 141) and Judge Brown denied this motion on September 11,
2000 (Da 181 to 182). This issue is
raised in Points IV and VI of counsel’s brief, and in Point VI
of the supplemental brief.
Defendant submits that it is ludicrous (and a
violation of his due process rights and contrary to the interests of justice)
for the State to argue that the defendant (who was abandoned by the OPD and
forced to proceed pro se) should be precluded from now litigating
on appeal the issues which formed the heart of his defense and which were
properly raised below. Defendant is not
an attorney yet he admirably raised his issues for the purpose of a future
appeal. The defendant’s coerced plea (which
he immediately sought to retract) should not in any way prevent this Court from
deciding the issues properly raised and preserved by the defendant below.
In addition, the very fact that Judge Brown issued an
Order specifically delineating the denials of the religious defense, medical
necessity defense, and jury nullification defense (Order annexed at Da 181 to
182) is further proof that all parties believed that the issues would be
appealed if defendant was
6
convicted (either by trial or plea).
Concerning the
defendant’s claims of ineffective assistance of counsel (raised in Points IV
and V of counsel’s brief, and in Point IX of the supplemental
brief), clearly these issues should be permitted to be raised on appeal. While generally claims of ineffective
assistance of counsel should be raised in a petition for post-conviction
relief, an exception exists when the record adequately reveals the grounds for
the ineffective assistance
claims. See State v. Preciose, 129 N.J. 451 (1992).
In Forchion, there is no question that a
detailed record has been established as to the OPD’s ineffectiveness regarding
the failure to pursue legitimate defenses, the failure to provide standby
counsel at court hearings (including the first day of trial), along with the many
other instances of ineffective counsel recounted in counsel and defendant’s
briefs.
Accordingly, defendant’s ineffective assistance of
counsel claims should be permitted to be litigated on appeal, as should all of
his other pretrial issues.
The defendant always believed that he would have the
right to appeal each and every issue raised during the pretrial motions. As explained in the pro se
supplemental brief, defendant’s standby counsel advised him that he would have
the right to appeal the pretrial issues raised by the defendant in spite of his
plea. Defendant relied upon counsel’s
representations that he could appeal when he entered the plea. (See Pro Se
brief, at page 59).
7
POINT II
DEFENDANT
SHOULD BE PERMITTED TO APPEAL
EVERY ISSUE
RAISED IN DESIGNATED COUNSEL’S
BRIEF AND IN
THE PRO SE SUPPLEMENTAL BRIEF
SINCE THERE
WAS NO VALID WAIVER OF THE
RIGHT TO
APPEAL AS REQUIRED BY THE FIFTH,
SIXTH AND
FOURTEENTH AMENDMENTS*
The Prosecutor stated at the plea: “The defendant has waived
his right to appeal as to all these cases.” (21T8-6 to 7). Except for this one sentence there is no
other mention of any waiver of defendants right to appeal-—the judge never voir
dired the defendant to determine if the waiver was knowingly and voluntarily
made—-even though the judge thoroughly questioned the defendant as to many
other rights that he was giving up due to his guilty pleas, including: “the
right to continue cross-examining the witnesses as well as testifying yourself
or asking questions of any witnesses; the right to remain silent (21T11-16 to
19); and the right to have the State prove him guilty beyond a reasonably
doubt. (21T11-11 to 25). Defendant also
replied affirmatively when advised by the court that he would have a criminal
record as a result of the pleas. (21T12-14 to 16).
The judge elicited from the defendant an allocution of
facts as to each of the counts to which he was pleading guilty. (21T18-13 to
23-23). The judge also questioned the
defendant as to the “Waiver of Indictment Form,” and the defendant stated that
he understood that he was giving up the right to have a grand jury
_______________________________________
* This issue is in reply to Point I of the
State’s brief.
8
hear the case. (21T23-11 to 15; 24-17 to 7). Neither the judge nor standby counsel ever
placed anything on the record as to the defendant waiving his right to appeal.
It is well-settled that a
waiver is an intentional relinquishment of a known right or privilege. Johnson
v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.
1461, 1466 (1938). Most significantly,
waiver may not be found from a silent record. State v. Bellucci, 81 N.J.
531 (1980). See State v.
Kounelis, 258 N.J. Super. 420 (App. Div.), certif. denied,
133 N.J. 429 (1992) (Court held that constitutional right to a defense
interpreter may not be waived by mere acquiescence or nonverbal conduct on the
part of the accused).
In Forchion, despite the fact that the judge
voir dired the defendant as to his plea and waiver of indictment, neither the
judge, prosecutor, or defense counsel questioned the defendant as to any waiver
of the right to appeal all issues.
In State v. Scherzer, 301 N.J. Super.
363 (App. Div.), certif. denied, 151 N.J. 466 (1997), the
Court held that although the defendant had specifically consented on the record
to his attorney being absent on many occasions, he did not waive his right to
counsel where all of the consents consisted of brief assents from the defendant
and no explicit consent was obtained from defendant. Scherzer, supra,
at 448.
Forchion is even more constitutionally infirm than the Scherzer
case, for in Forchion there is no questioning at all of defendant
concerning the waiver of his right to appeal.
9
It should be pointed out that while the Appellate
Division found the error in Scherzer to be harmless, on September 12,
2003, the United States Court of Appeals for the Third Circuit
(Judges Alito, Roth and Rendell) granted Kevin and Kyle
Scherzer’s request for a certificate of appealability (Order annexed at
Ra1).
Additionally, while the Appellate Division in Scherzer
found the error to be harmless due to the weight of the evidence, in Forchion
the erroneous lack of a waiver cannot possibly be considered harmless—-to so
hold eviscerates nearly all of defendant’s appeal without his assent.
While Kounelis involved
an interpreter, the principle is equally applicable in Forchion—mere
acquiescence or nonverbal conduct is an insufficient waiver. For the foregoing reasons, defendant must be
permitted to raise all issues on appeal.
10
POINT III
DEFENDANT
SHOULD BE PERMITTED TO APPEAL EVERY
ISSUE RAISED
IN DESIGNATED COUNSEL’S BRIEF
AND IN THE PRO
SE SUPPLEMENTAL BRIEF SINCE
STANDBY
COUNSEL ADVISED HIM THAT HE COULD DO
SO AND TO PRECLUDE
DEFENDANT FROM RAISING
THESE ISSUES
ON APPEAL WILL CONSTITUTE
INEFFECTIVE
ASSISTANCE OF COUNSEL*
It is well-settled that in
order to prevail on an ineffective assistance of counsel claim, a defendant
must demonstrate not only that his counsel’s performance was significantly
defective, but also that the defective performance prejudiced the defendant’s
right to a fair disposition of the charges. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh’g
denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864
(1984). In United States v. Cronic,
466 U.S. 649, 104 S.Ct. 2039, 2046 (1984), the Court held that
where there are “circumstances that are so likely to prejudice the accused that
the cost of litigating their effect in a particular case is unjustified” a
presumption of ineffectiveness is warranted.
In Forchion, at the September 18, 2000 pretrial
hearing before Judge Thompson, the defendant specifically stated: “I would
still like to file an interrogatory** (sic) notice of appeal of the September
11th rulings.” (19T6-12 to 13).
The
_______________________________________
* This issue is in reply to Point I of the
State’s brief.
** It is
apparent that either the defendant misspoke and meant to say the word
“interlocutory,” or the tape transcriber misheard him.
11
prosecutor was present and he never stated that defendant would not be
able to appeal these rulings. Judge
Thompson also did not state that the defendant could not appeal these issues.
(Standby counsel was not present in court at the time; 19T4-12 to 13). It is apparent that the defendant
understandably believed that he had the right to appeal each and every pretrial
issue.
As explained in the pro se brief,
defendant’s standby counsel advised him that he would have the right to appeal
the pretrial issues raised by the defendant--in spite of his plea. Defendant relied upon counsel’s
representations that he could appeal when he entered the plea. (See Pro Se
brief, at page 59).
There was never any doubt in the defendant’s mind that
he
would be permitted to appeal, as he was advised of such by a standby
counsel. The defendant never
“intelligently and knowingly” waived the right to appeal in court, as the judge
never questioned defendant as to such waiver.
Finally, since defendant was advised by standby counsel that he could
appeal, then even if, in fact, counsel was incorrect in this assessment, (and
defendant was not legally permitted to appeal) then the denial of effective
counsel should, in any event, override any procedural bar under R.
3:9-3(f).
12
POINT IV
DEFENDANT
SHOULD BE PERMITTED TO APPEAL EVERY
ISSUE RAISED
IN DESIGNATED COUNSEL’S BRIEF
AND IN THE PRO
SE SUPPLEMENTAL BRIEF SINCE
THE DOCTRINE
OF FUNDAMENTAL FAIRNESS MANDATES
SUCH AND ISSUES OF PUBLIC IMPORTANCE EXIST*
As explained in State v. Thompsen, 316 N.J.
Super. 207 (App. Div. 1998), the doctrine of fundamental fairness can be
used by appellate and trial courts as an instrument for remedying
injustice. In Thompsen, the
court, in invoking the doctrine of fundamental fairness, held that defendant,
who was found guilty by a jury of fourth degree eluding by motor vehicle, was
denied a fair trial when the trial court, upon discovering at sentencing that
the charged degree of offense was erroneous, memorialized a second-degree
conviction and sentenced the defendant accordingly.
The Appellate Division concluded that the trial court could have invoked
the doctrine of fundamental fairness to declare a mistrial. See Doe
v. Poritz, 142 N.J. 1, 108 (1995) (The doctrine of fundamental
fairness “’serves, depending on the context, as an augmentation of existing
constitutional protections or as an independent source of protection.” (quoting
State v. Ramseur, 106 N.J. 123, 373 (1987) (Handler, J.,
dissenting); State v. Currie, 41 N.J. 531, 539 (1964) (“The
primary considerations should be fairness and fulfillment of reasonable
expectations in the light
_______________________________________
* This issue is in reply to Point I of the
State’s brief.
13
of ... constitutional and common law goals.”) State v. Baker, 270 N.J. Super.
55 (App. Div.) (Kestin, J.A.D., dissenting). (“[T]he concept of fundamental
fairness trumps rules of law. [It]is designed to assure that due process values
govern the outcome of criminal maters even ‘when the scope of a particular
constitutional protection has not been extended to protect a defendant.” * * *
the concept of fundamental fairness must be available for use when the result
required by technisms does not square with considerations of decency and fair
play.” (citations omitted), aff’d 138 N.J. 89 (1994).
In Forchion, there can be no question that the pro
se defendant fully expected (and was advised by standby counsel) that he
could appeal each and every issue that he had properly preserved. Following the denial of the main pretrial
motions on September 11, 2000, the defendant, in court on September 18, 2000,
specifically stated that he wanted to file an interlocutory appeal of the
September 11th denials. Most
significantly, there was no waiver by defendant placed on the record.
For the foregoing reasons, the defendant should be
permitted to raise all of the issues raised in counsel’s brief and in the pro
se supplemental brief.
14
CONCLUSION
For the foregoing reasons and
authorities cited in counsel’s appellate brief and defendant’s pro se
supplemental brief, defendant-appellant Edward R. Forchion respectfully submits
that the Indictment should be dismissed with prejudice. At the very least, the convictions must be
reversed and a new trial ordered.
Defendant also should not be precluded from raising the legal issues he
properly raised and preserved below.
Respectfully
submitted,
Yvonne Smith Segars,
Public Defender
______________________
JOHN VINCENT
SAYKANIC
Dated: September 30,
2003 Designated Counsel for
Defendant-Appellant
Edward R.
Forchion
15