STATE OF NEW JERSEY v. WESTERN WORLD, INC.
DOCKET NO. A-3007-12T2
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
March 30, 2015
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
MOTION NO. M-0474-13
APPROVED FOR PUBLICATION March 30, 2015 APPELLATE DIVISION
Before Judges Messano, Hayden and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 08-06-00186.
Susan Brody, Deputy Public Defender, II, argued the cause for Party-In-Interest Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Ms. Brody, on the brief).
Jeffrey S. Mandel argued the cause for appellant Western World, Inc. (Cutolo Mandel, LLC, attorneys; Mr. Mandel, on the brief).
Gregory Robert Mueller, Assistant Prosecutor, argued the cause for respondent State of New Jersey (David J. Weaver, Sussex County Prosecutor, attorney; Mr. Mueller, on the brief).
MESSANO, P.J.A.D.
This motion presents an issue of first impression in this State, specifically, whether the Office of the Public Defender (OPD) must represent on appeal a corporation convicted of an indictable offense and subsequently declared “indigent” by the trial court.
The facts and procedural history are undisputed. The Sussex County grand jury returned Indictment No. 08-06-00186, charging defendant Western World, Inc., and others with crimes that arose from a July 7, 2006 shooting during the reenactment of a gunfight at Wild West City, a business operated by defendant.1 On April 11, 2012, represented by private counsel
We have not been provided with a transcript of the plea proceedings as part of this motion record. However, the plea form and addendum, apparently prepared by the prosecutor, indicated that the State would also dismiss the indictment as to co-defendants Michael Stabile, at the time defendant‘s president, Nathan McPeak, one of its employees, and Cheyenne Corporation, an entity that owned the land upon which Wild West City operated. The addendum also indicated that the State would not seek a fine, and it set forth the State‘s recommendations regarding conditions of probation. Lastly, the addendum provided:
(continued)
Although citing an unpublished opinion is generally forbidden, we do so here to provide a full understanding of the issues presented and pursuant to the exception in Rule 1:36-3 that permits citation “to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law . . . .” See Badiali v. New Jersey Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff‘d ___ N.J. ___ (2015) (slip op. at 3).
It is acknowledged that the amendment to Count [Fifteen] is legally proper and sufficient and will not be challenged on appeal. [Defendant] reserves the right to appeal the limited question of whether a carry permit was required by the actors under the facts of this case. [Defendant] waives any other appellate issues and agrees to withdraw the previously filed interlocutory appeal.
Stabile executed the plea form on behalf of defendant. The judgment of conviction entered on October 23, 2012, reflects that the judge placed defendant on probation for one year, imposed a $7500 fine to be paid over a period of three years, and imposed other mandatory financial penalties.
On November 8, 2012, defense counsel wrote to the regional office of OPD, indicating that defendant wished to appeal the issue reserved at the time of its guilty plea, as well as the imposition of the fine, and that his firm, which had not been compensated, would not represent defendant. He further noted the judge told Stabile at sentencing that “the corporation would be entitled to a Public Defender if it could not afford an attorney . . . .” Counsel stated that defendant, however, was “turned away by the Public Defender‘s Office.” Citing our decision in In re CLM Construction Co., 277 N.J. Super. 329 (App. Div. 1994), defense counsel contended that defendant was entitled to representation by OPD on appeal.
On February 26, 2013, OPD filed a notice of appeal on behalf of defendant, and, on September 11, OPD filed this motion
On September 23, Stabile filed a letter brief in opposition to the motion on behalf of defendant.
In opposing OPD‘s motion, defendant argued that while OPD has discretion to allocate its resources, it “lacks discretion to deny representation to an indigent defendant,” and, based
We also requested that the State file a response to defendant‘s motion. Although agreeing that the appeal lacked merit, the assistant prosecutor who handled the prosecution in the Law Division took no position on OPD‘s request to be relieved.
At oral argument before us, OPD expanded upon its requested relief. OPD argued that because no “liberty” interest is at stake, it has no obligation to represent a corporate defendant under any circumstances. OPD argued that to the extent our prior decision in CLM Construction implies a contrary result, we should overrule that precedent.
The only discussion in a published New Jersey decision as to whether OPD is required to represent an indigent corporation appears in a footnote in CLM Construction. There, the trial judge appointed an OPD pool attorney, who had represented the corporate president as an individual co-defendant, to also represent the corporate defendant. CLM Const., supra, 277 N.J. Super. at 330-32. Both defense counsel and the assistant prosecutor advised the judge that OPD did not represent corporations. Id. at 331. Nevertheless, the judge indicated he would appoint counsel to represent the corporation. Id. at 332.
Although counsel provided personal justification for her refusal, the judge would not reconsider his order of appointment, ibid., and we granted counsel leave to appeal. Id. at 330. We reversed the order, concluding that the judge failed to comply with then-existing
In a footnote, we discussed the assertion by counsel and the prosecutor that OPD did not represent corporate defendants. Id. at 331 n.2. We noted that our research “fail[ed] to uncover any New Jersey authority specifically considering this point.” Ibid. We further observed that both State v. Rush, 46 N.J. 399 (1966), and State v. Horton, 34 N.J. 518 (1961), “discuss the indigent‘s right to appointed counsel[,]” but that neither case “distinguish[ed] between indigent individuals and indigent corporations,” and we specifically cited
We further observed that neither the federal Criminal Justice Act,
II.
We address the issue our footnote in CLM Construction succinctly framed, but left unresolved, by first considering the nature and scope of the fundamental right to counsel embodied in the United States and New Jersey Constitutions.
A.
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence.” The Amendment guarantees the right of a criminal defendant to retain counsel of his choice, United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 2561, 165 L. Ed. 2d 409, 417 (2006), to the effective assistance of counsel, and if indigent and facing the potential loss of “life or liberty,” to have counsel appointed at the government‘s expense. Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979).
Although there is no constitutional right to an appeal, Griffin v. Illinois, 351 U.S. 12, 18, 76 S. Ct. 585, 590, 100 L. Ed. 891, 898 (1956), once a right to appeal is provided, that right must be protected in a non-discriminatory fashion. Accordingly, an indigent defendant has a right to counsel on direct appeal. Douglas v. California, 372 U.S. 353, 357, 83 S. Ct. 814, 816, 9 L. Ed. 2d 811, 814 (1963).
[State v. Coon, 314 N.J. Super. 426, 434 (App. Div.), certif. denied, 157 N.J. 543 (1998).]
The right to appointed counsel under the Sixth Amendment, however, exists only when “the litigant may lose his physical liberty if he loses the litigation.” Lassiter v. Dep‘t of Soc. Servs., 452 U.S. 18, 25, 101 S. Ct. 2153, 2158, 68 L. Ed. 2d 640, 648 (1981). “[A]s a litigant‘s interest in personal liberty diminishes, so does his right to appointed counsel.” Id. at 26, 101 S. Ct. at 2159, 68 L. Ed. 2d at 649. “[I]t is the defendant‘s interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments right to counsel in criminal cases, which triggers the right to appointed counsel in criminal cases. . . .” Id. at 25, 101 S. Ct. at 2158, 68 L. Ed. 2d at 648. Thus, “the line defining the [federal]
The federal circuits have held the Sixth Amendment applies to corporations.
The sixth amendment describes the class of persons protected by its terms with the word “accused.” This language does not suggest that the protection of sixth amendment rights is restricted to individual defendants.
Furthermore, an accused has no less of a need for effective assistance due to the fact that it is a corporation. The purpose of the guarantee is to ensure that the accused will not suffer an adverse judgment or lose the benefit of procedural protections because of ignorance of the law. A corporation would face these same dangers unless the agent representing it in court is a competent lawyer. Thus, the right to effective assistance of counsel is not so peculiarly applicable to individuals that corporations should not be entitled to it.
Nor can we see how this right is in any manner inconsistent with a corporation‘s status as a creature of state law. Consequently, we hold that the guarantee of effective assistance of counsel applies to corporate defendants.
[United States v. Rad-O-Lite of Philadelphia, Inc., 612 F.2d 740, 743 (3d Cir. 1979) (internal citations omitted);
accord United States v. Unimex, Inc., 991 F.2d 546, 549 (9th Cir. 1993).]6
Significantly, however, federal courts have uniformly held that corporations, unlike defendants who are natural persons, do not have a Sixth Amendment right to appointed counsel at public expense. See United States v. Hartsell, 127 F.3d 343, 350 (4th Cir. 1997); Unimex, Inc., supra, 991 F.2d at 550; United States v. Rocky Mt. Corp., 746 F. Supp. 2d 790, 803 (W.D. Va. 2010); United States v. Rivera, 912 F. Supp. 634, 638 (D.P.R. 1996); Mid-Central/Sysco Food Servs., Inc. v. Reg‘l Food Servs., Inc., 755 F. Supp. 367 (D. Kan. 1991). The court in Rocky Mt. Corp., supra, 746 F. Supp. 2d at 800, explained:
[T]he corporation‘s right to counsel does not precisely mirror the individual‘s right to counsel. It follows that when we speak of the corporation‘s Sixth Amendment right to counsel, we in no way imply that it can have counsel it cannot afford. Rather, what the corporation has is the right to retain the counsel of its choice to represent its interests without undo governmental intrusion. Thus, a corporation‘s Sixth Amendment right in a criminal trial is its right to retain counsel while an individual‘s Sixth Amendment right includes the right to appointed counsel. Unlike an individual, a corporation cannot have what it cannot afford.
[(Emphasis added) (internal citation omitted).]
See also Peter J. Henning, The Conundrum of Corporate Criminal Liability: Seeking a Consistent Approach to the Constitutional Rights of Corporations in Criminal Prosecutions, 63 Tenn. L. Rev. 793, 885 (1996) (explaining that under the United States Constitution, “a corporation cannot claim the same measure or degree of protection that the individual defendant may claim“). The Sixth Amendment right to counsel is so limited because corporations cannot be imprisoned or face a loss of liberty. Unimex, Inc., supra, 991 F.2d at 550; Rivera, supra, 912 F. Supp. at 638.
B.
In part,
In addition, “the right to appointed counsel for indigent litigants has received more expansive protection under our state law than federal law.” Pasqua v. Council, 186 N.J. 127, 147 n.5 (2006). In many cases, the Court found support for such expansion in
For example, State constitutional due process rights require the appointment of counsel for indigents in a variety of
State constitutional due process rights also require the appointment of counsel in circumstances involving the potential loss of liberty, albeit not as a result of a “criminal prosecution[].” See Pasqua, supra, 186 N.J. at 149 (holding due process requires the appointment of counsel for indigent parents at risk of incarceration resulting from child support enforcement hearings). Additionally, without referencing our State Constitution, in Rodriguez v. Rosenblatt, 58 N.J. 281 (1971), the Court extended the right to appointed counsel to indigent defendants in quasi-criminal municipal court prosecutions. Concluding that result was compelled “as a matter of simple justice,” the Court held that “no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.” Id. at 295. Relying on the principle of “simple justice,” in State v. Hermanns, 278 N.J. Super. 19, 30 (App. Div. 1994), we
Nonetheless, despite New Jersey‘s long history of assigning counsel to represent indigent defendants, and the expanded protections afforded under our constitution to other indigent litigants, our research has revealed no case in which a court has appointed counsel at public expense to represent an “indigent” corporation.
III.
A.
The arguments made by defendant and OPD require us to construe the PDA, and in doing so, we apply some well-recognized tenets. “In statutory interpretation, a court‘s role ‘is to determine and effectuate the Legislature‘s intent.‘” State ex rel. K.O., 217 N.J. 83, 91 (2014) (quoting Allen v. V & A Bros., 208 N.J. 114, 127 (2011)). “In construing any statute, we must give words ‘their ordinary meaning and significance,‘”
“However, not every statute is a model of clarity. When the statutory language is sufficiently ambiguous that it may be susceptible to more than one plausible interpretation, we may turn to such extrinsic guides as legislative history, including sponsor statements and committee reports.” Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012) (citing Burns v. Belafsky, 166 N.J. 466, 473 (2001)). “We may also turn to extrinsic guides if a literal reading of the statute would yield an absurd result, particularly one at odds with the overall statutory scheme.” Ibid. (citations omitted). A court “should also ‘be guided by the legislative objectives sought to be achieved by enacting the statute.‘” Town of Kearny v. Brandt, 214 N.J. 76, 98 (2013) (quoting Wilson, supra, 209 N.J. at 572). “Accordingly, when a literal interpretation of individual statutory terms or provisions would lead to results inconsistent with the overall purpose of the statute, that interpretation should be rejected.” Perrelli v. Pastorelle, 206 N.J. 193, 201 (2011).
Although “person” is not defined by the PDA, defendant argues that, “[u]nless . . . otherwise expressly provided or there is something in the subject or context repugnant to such construction[,]”
The two statutory provisions cited by defendant that ostensibly supply the definition of “person” omitted from the PDA by the Legislature, however, are limited by their very terms. The definitions contained in
Decisions that have utilized the default meanings contained in
In In re Electrical Inspection Authorities, 127 N.J. Super. 295, 300 (App. Div. 1974), we considered, among other things, whether
The question is one of legislative intent. In our view, the subject and context of the quoted section indicates that . . . the legislative intent was that the provisions of
N.J.S.A. 45:5A-17 should apply to all governmental units, i.e., cities and counties which, with statutory authorization, provide for electrical inspections . . . and that therefore the word “municipality” should be construed to include a county.[Ibid. (emphasis added).]
In a different context, in Housing Authority of Atlantic City v. Coppock, 136 N.J. Super. 432, 434 (App. Div. 1975), we considered the default meaning of “month,” as supplied by
Whether the default meanings supplied by
In Hardwicke v. American Boychoir School, 188 N.J. 69, 87 (2006), the Court had to consider “whether an institution . . . c[ould] be a ‘person’ under the [Child Sexual Abuse Act (CSAA),
[i]n light of the language of the statute as supplemented by the definition of person in Title 1, the extrinsic evidence of legislative intent, and the State‘s strong policy to hold both active and passive child abusers accountable, we find that the [defendant] is a person under the passive abuse provision of the CSAA.
[Id. at 91.]
In short, if the default meaning of “person” supplied by
B.
As already noted, New Jersey‘s history of providing counsel to indigent criminal defendants predates passage of the PDA by nearly two centuries. From 1948 to 1967, counsel were assigned to indigent defendants under various Rules of Court. For example, Rule 1:12-9(a) (repealed 1967) provided that “[w]here a person charged with a crime appears in a trial court without counsel, the court shall advise him of his right to counsel
“In Rush, supra, 46 N.J. at 412, the Court decided that the time had come to relieve the New Jersey bar of the task of defending without compensation indigents accused of indictable crimes.” In re Cannady, 126 N.J. 486, 489 (1991). The immediate solution arrived at by the Rush Court was to impose the costs of providing counsel upon the counties. Ibid. The Court delayed the effective date of its decision, however, to
To some degree, the PDA was intended to address the expected increased costs to individual counties as a result of the Rush decision. This is clear from sponsors’ statements in support of earlier versions of the bill, see e.g., Sponsor‘s Statement to A. 752, at 2 (1967) (noting that increased costs to counties would result in “an undue burden“), and the Governor‘s Statement to S. 287, (1967) (noting that appropriations to fund the public defender system were the “result of a determined effort by the State government to . . . be of assistance to our counties“).
Foremost and primarily, however, the PDA was intended to meet the state‘s obligation under the
The PDA as enacted implemented recommendations contained in the December 22, 1966 report of the “Commission on the Defense of Indigent Persons Accused of Crime” (“Report“).12 See Cannady, supra, 126 N.J. at 490; Sponsor‘s Statement to S. 287, at 7 (1967); Governor‘s Statement to S. 287, supra. In considering who was entitled to appointed counsel at public expense, the Commission implicitly spoke in terms of natural persons:
Perhaps the most difficult problem is the matter of defining who is “indigent.” Several decades ago the term meant an actual pauper who was entirely without means.13 The term no longer has this narrow significance. In general, it is now widely understood as referring to a person who is unable to afford the cost of engaging counsel to represent him.
[Report, supra, at 5 (emphasis added).]
The Court has said that the Legislature created OPD to “ensure that the State fulfilled its constitutional obligation to provide legal services for indigent defendants.” In re Custodian of Records, supra, 214 N.J. at 158. The PDA expressly provides, “It is hereby declared to be the policy of this State to provide for the realization of the constitutional guarantees of counsel in criminal cases for indigent defendants . . . .”
C.
As initially adopted, the PDA did not provide for the representation of indigent defendants charged with non-indictable offenses or juveniles. See In re State in Interest of Antini, 53 N.J. 488, 492 (1969). With regard to non-
The Public Defender shall . . . provide for the legal representation of any person charged with a disorderly persons offense or with the violation of any law, ordinance or regulation of a penal nature where there is a likelihood that the persons so charged, if convicted, will be subject to imprisonment or, in the opinion of the court, any other consequence of magnitude.
[(emphasis added).]
The Legislature clearly intended to expand the universe of offenses triggering the right to counsel at public expense for indigent defendants. The amendment did not, however, expand the definition of “indigent defendants” to include indigent corporations.14 In any event, the Legislature failed to appropriate the
As originally enacted, the PDA also did not provide for the representation of indigent juveniles. However, just thirteen days after the PDA was enacted, on May 15, 1967, the United States Supreme Court held that an indigent juvenile had the right to be furnished with counsel during “proceedings to determine delinquency which may result in commitment to an institution in which the juvenile‘s freedom is curtailed. . . .” In re Gault, 387 U.S. 1, 41, 87 S. Ct. 1428, 1451, 18 L. Ed. 2d 527, 554 (1967).
As a result, our Supreme Court amended former Rule 6:3-4(c) and (d) (1968 (now repealed)), to provide for the assignment of
The Legislature‘s response was again swift. It amended the PDA, L. 1968, c. 371, to provide for representation of juveniles by the OPD:
[T]he Public Defender shall . . . provide for the legal representation of any person who is charged as a juvenile delinquent or as a juvenile in need of supervision and where in the opinion of the juvenile judge the prosecution of the complaint may result in the institutional commitment of such person.
[
N.J.S.A. 2A:158A-24 .]
D.
These two examples demonstrate the Legislature‘s clear ability to amend the PDA in order to address the rapidly changing legal landscape whenever the rights of indigent defendants are implicated. In both situations, the impetus behind the amendments to the PDA were the vital personal liberty
For example, the Legislature enacted legislation that requires the Office of Parental Representation in OPD to represent parents and guardians charged in abuse and neglect cases, or those facing the loss of parental rights, in accord with their constitutional rights. See, e.g., B.R., supra, 192 N.J. at 306-07;
Similarly, the Division of Mental Health Advocacy in OPD provides representation at civil commitment hearings, as constitutionally guaranteed, see S.L., supra, 94 N.J. at 142, and statutorily required, not under the PDA, but pursuant to the civil commitment statutes and court rules. See, e.g.,
E.
We distill from this discussion the following. The PDA was born from a legislative desire to practically and publicly fund the criminal defense of indigents, as required by evolving federal constitutional doctrine and the long history of New Jersey‘s constitutional and statutory right to counsel. The legislative history of the PDA demonstrates that, at its inception, the focus of the proposed legislation was on the protection of the rights of “indigent people” who were natural persons, not corporations or other business entities. Although the Legislature could have specifically included corporations or other business entities within the PDA‘s definition of “indigent defendants,” it declined to do so. See, e.g., Zabilowicz v. Kelsey, 200 N.J. 507, 517 (2009) (“The Legislature knows how to draft a statute to achieve that result when it wishes to do so.“). Yet, whenever necessary, the Legislature has either amended the PDA or enacted other laws to specifically provide for the representation by OPD of natural persons whose personal liberty rights may be adversely affected, or who face other consequences of magnitude.
F.
Our conclusion is supported by an examination of federal decisions that have interpreted language in the CJA and the Dictionary Act,
The court in Unimex, supra, 991 F.2d at 549-50, explained that the CJA
provides for appointment of counsel for an indigent “person,” but does not say whether a corporation is a “person” for purposes of appointment of counsel.
18 U.S.C. § 3006A(a) . The word “person” in a federal statute includes corporations “unless the context indicates otherwise.”1 U.S.C. § 1 . In the statute providing for appointment of counsel, the context does indeed “indicate otherwise.” . . . The statutory context includes a list of classes of persons eligible, with catch-all clauses for a financially eligible person who “is entitled to appointment of counsel under the sixth amendment to the constitution” or “faces loss of liberty.”18 U.S.C. § 3006A(a)(1)(H) ,(I). If the purpose of the statute is to assure that criminal defendants’ constitutional right to appointed counsel is protected, then noappointments are needed for corporations . . . . Although authority is scarce, we conclude from context that the CJA does not so provide either.
As a result, the federal courts have uniformly denied indigent corporations representation under the CJA. In re Grand Jury Proceedings, 469 F.3d 24, 26 (1st Cir. 2006); Hartsell, supra, 127 F.3d at 350; Rivera, supra, 912 F. Supp. at 638; United States v. Hoskins, 639 F. Supp. 512, 514 (W.D.N.Y. 1986), aff‘d o.b., 875 F.2d 308 (2d Cir. 1989).
IV.
We note that the legislatures of a number of our sister states have implicitly limited the right to appointed counsel at public expense to indigent criminal defendants who are natural persons. Some have done so by conditioning the appointment to situations where imprisonment is probable or possible. See e.g.,
Other states have defined the class of indigent defendants eligible for appointed counsel at public expense such that only natural persons could qualify. See e.g.,
In Illinois, “[t]he constitutional right to appointed counsel is limited to criminal proceedings which result in actual imprisonment, and the statutory right to counsel is similarly limited.” Chicago v. Pudlo, 462 N.E.2d 494, 498 (Ill. App. Ct. 1983), cert. denied, 471 U.S. 1066, 105 S. Ct. 2140, 85 L. Ed. 2d 497 (1985). Notably, however, Illinois law also specifically provides that “[i]f the accused is a dissolved corporation and is not represented by counsel, the court may, in the interest of justice, appoint as counsel a licensed attorney of th[e s]tate.”
V.
We conclude the Legislature never intended that an indigent corporation be provided with counsel at public expense pursuant to the PDA. We therefore relieve OPD of any further representation of defendant in the prosecution of this appeal.
We also reaffirm, however, that because corporations are entitled to the assistance of counsel under both the
An appropriate order has been entered.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Notes
We previously described the circumstances in our unpublished opinion, Stabile v. Benson, No. A-4009-09 (App. Div. Sept. 29, 2011):
[A]n actor [employed] by [defendant] . . . was participating in the reenactment of a gunfight at Wild West City. A fellow employee actor used a gun that did not contain blanks but rather live ammunition that had been brought to work by another employee sometime prior to the gunfight skit. [The actor] was shot in the head during the skit, suffered a catastrophic brain injury, and was severely and permanently disabled as a result.
[Id. (slip op. at 4).]
We attach a sample of the current form as an appendix to this opinion. As is apparent, the form implicitly seeks information unique to a natural person.general personal data, such as name, address, social security number, date of birth, and marital status . . . background information on the defendant‘s family, military service, and education . . . [and] potentially sensitive information about a defendant‘s past and present physical condition, mental health, and drug and alcohol use and treatment.
[In re Custodian of Records, Criminal Div. Manager, 214 N.J. 147, 159-160 (2013).]