*1 IV. reversed, and the Appellate Division is judgment The Family for a Chancery Part to the cause is remanded Division — by presented N.J.S.A. evidentiary question new trial limited 30:4C-15.1(a)(l): safety, development or health whether endangered or will continue to be Katie Richard has been and/or proofs relationship with defendant. Once those parental remand, aggre- court is directed further developed are on developed proofs as gate proofs those with the earlier second, interest of the child” prongs and fourth of the “best third respect analysis conclusions in re-weigh its entire test and 30:4C-15.1(a). Jurisdiction is not all of the elements of N.J.S.A retained. Justice RABNER and
For reversal remandmeni —Chief LaVECCHIA, ALBIN, RIVERA-SOTO, LONG, Justices HOENS —6.
Opposed—None.
Richard, Director, Pompelio, D. submitted a brief on behalf of (Mr. Jersey amicus curiae New Crime Victims’ Law Center counsel; Pompelio, attorney; Pompelio, Pompelio Mr. of Mr. and brief). Palumbo, Anthony N. on the opinion Justice ALBIN delivered the of the Court. State, negotiated agreement
In a with the defendant Marie pled guilty aggravated manslaughter killing Hess to for her Hess, (Jimmy) City Burlington police husband James officer. agreement, Under the terms of the required defendant was to acknowledge thirty-year sentence, prison she would receive a subject parole disqualifier (twenty-five-and-one-half years); to a to aggravating outweighed mitigating concede that the factors factors; agree to attorney that neither she nor her would seek imprisonment. sentencing, despite lesser term At defendant’s possession in suggesting evidence his that defendant suffered from Syndrome husband, Battered Women’s when she killed her coun- mitigating sel offered no support evidence in of a lesser sentence. Nothing plea in agreement specifically precluded him from presenting Moreover, such evidence. object counsel did not plea agreement’s right argue restrictions on his to on his client’s sentencing; behalf at to the State’s introduction of a video popular religious music; victim’s life set to or to an invective- victim-impact filled given by police statement officer who served with defendant’s husband. appeal
In this from the denial of post- defendant’s motion for relief, conviction we conclude that defendant was denied right constitutional to the effective assistance of counsel sen- tencing. deprived Defense counsel the court of evi- necessary dence that was meaningful for a sentencing hearing. That alone so undermined process the adversarial that counsel no longer serving was in the role of an advocate as envisioned in our justice Moreover, system. criminal the constraints embedded plea agreement the terms of the by the State and —drafted accepted by defense arguments counsel —denied the court of may light have shed on relevant they factors and how plea agreement were of that weighed. The terms
should be Warren, holding in v. 115 N.J. State incompatible with our (1989), Briggs, v. and the decision State 558 A.2d impinged not (App.Div.2002), and A.2d 882 N.J.Super. sentencing, on the role of but also only role of counsel at on the Last, justice. defense arbiters of independent our courts challenge the failing for constitutionally ineffective counsel popular to the victim scored unduly prejudicial video tribute religious music. sentencing hearing. Because only a new sought has Defendant right counsel’s agreement’s on defense restrictions of this State’s are in contravention argue a lesser sentence proceed law, The State is free terms are void. those decisional *7 plea. hearing or to vacate the to a new I. Jimmy she future husband when Hess met her Marie Defendant in years ten later The two were married years old. was seventeen City of officer in the Jimmy police In became 1992. morning August they came to live. On the Burlington, where Jimmy in the 19, 1999, defendant shot thirty-four-year-old the lay sleeping in bed. as he head husband, gun in a T- wrapped the shooting After her cabinet, then went about it in a kitchen stored shirt and off to work as a toll day. She went ordinary of her course her Bridge. completing After Burlington-Bristol at the collector uniforms to the a.m., husband’s she took her at 11:30 shift with it. pizza and returned home picked up a She next cleaners. bedroom, her husband’s where she observed her She then entered blood, dispatcher at 12:15 9-1-1 and called the covered in head shortly afterwards. at home police arrived defendant’s p.m. The only Jimmy. The killed disputes the fact that defendant No one “really couple,” as later was, they America’s why. issue Were psychologically, and was she the prosecutor, or described in her woman as she described battered physically, sometimes police post-conviction-relief first full statement to the and in her petition? gave formally
Defendant her first recorded statement to detec- Burlington County tives of the p.m. Prosecutor’s Office 10:35 on day she killed her husband.1 August 1999 Statement
Defendant’s husband, shooting Defendant admitted accidentally, when it purpose only was her history to scare him. She described violence, belittlement, domestic psychological and victimization leading up killing. In shooting, the months before the Jimmy violent, increasingly became being the constant refrain right.” They she could “do having problems nothin’ were related they to the house that process purchasing. were in the She was delay blamed for getting mortgage, keeping papers for not order, wanting and for not to make the move. She was blamed problems telephone with their earlier, A service. month Jimmy “put weapon had his service to [her] head and told if [her] straighten [she] didn’t up disappear [she] could down in the” Pine occasion, Barrens. Jimmy On an earlier physically had assaulted her, pulling punching her hair and lip, her on warning her that willing job “he would be go to lose his back to construction work if cops.” [she] called the
On evening shooting, shift, before the after completing his Jimmy and, shortly visited a local bar midnight, after returned heavily yelled home intoxicated. He at defendant his because ready. dinner was not *8 complained He getting that he was not his phone messages. gun He then “took his off pointed the table” and head, it at “straighten defendant’s and told her to out” or else. stayed Defendant on night, the couch that sleep, unable to clock, watching the Jimmy might and fearful that come at her. At a.m., 7:00 defendant left the couch and readied herself for work. reciting In findings. the evidence record, of we do not make We credibility disparage do not intend to the victim or excuse defendant's conduct. We merely out the sentencing. evidence available to lay defense counsel at the time of awake, telephone was discon- yelling that the Jimmy
She heard work. tend to it after nected, responded that she would and she gun. then and retrieved a She to the basement She next went asleep. Defen- Jimmy back had fallen to the bedroom where went him gun pointing at Jimmy over and see” the to “roll dant wanted him, her, she wanted scare pointed it like she had seen sorry for enough say he was him to be “scared she wanted But the everything out.” [they] would work everything, and that accidentally.” gun off “went charged with was arrested and day, August defendant
That day, was admitted to The next she of husband. the murder her “because of suicidal Psychiatric Hospital Trenton Forensic ideations.” Hospital Psychiatric
Forensic reported that “her hospital, defendant her admission On and she was afraid abusive towards her physically husband have not kill him he would that “if she did him.” also stated She accidentally that “she shot” maintained her.” She killed months In the four to kill herself’ as well. and “wanted husband husband, pounds “had lost about 28 defendant shooting her before days of sleeping.” After four difficulty weight” and “had observation, hospital and trans- was released from the County Burlington Jail. ferred to the
Indictment jury 23, 2000, County grand returned Burlington On March knowingly purposely or with charging defendant an indictment of N.J.S.A. 2C:11- husband violation causing the death of her 3(a)(1) (2). Investigation
Defense investigator, Richard attorney private retained Defendant’s who, conducted interviews Strohm, April of in March and Jimmy Hess— of Marie and people and co-workers nine —friends relationship. marital about their information who had first-hand *9 Jimmy Those interviews revealed that had abused and threatened attempted his wife and dominate and control her.
Herbert was Jimmy long-time good Wickward Hess’s friend. They and together, hunted fished and their families with socialized each trip other. Wickward that on a fishing remembered when forgot bait, hunting trip forgot defendant or on a when she shells, Jimmy stupid just called her “a bitch and her. belittled And trip Poconos, he didn’t care who a was around.” On spilled when grease morning defendant cooking, some one while Jimmy up pushed “threw his fist and back to table” and verbally occasion, berated her for fifteen minutes. On such an when was in Jimmy rage, red, his with face “beet” he would listen to no one. Jimmy witnessed get
Wickward “raise his in [defen- hands and face, say, up you dant’s] shut bitch I’ll you.” kill Several times, Jimmy [defendant], Wickward heard “threaten to kill ... threaten to kill Jimmy himself.” Wickward knew that drank every night, including excess almost night his before death. Although Jimmy defendant, never physically he observed assault on one he occasion saw “with eyes defendant black abrasions face,” on her which explained was caused when “she ran into a door.” couple’s
Some of the friends noted that defendant would wear sunglasses, hours, during even evening suggesting that she was hiding Jimmy’s bruises. Some of spoke friends penchant his excess, drink to and more so towards the end of his life. Some noted that defendant weight lost considerable in the months before she killed her husband. couple
Friends of the Jimmy described “controlling,” as treating According Fanelle, defendant like a “slave.” Margaret neighbor, Jimmy if “told jump say [defendant] to she would how [high].” portable telephone, Defendant carried a even when in the yard line, hanging or out clothes on Jimmy because “check[ed] on her all the time.” Fanelle believed that defendant was afraid husband; you of her “by just could see it looking at her and *10 Goodman, neighbor, Andrea recalled her.” Another talking to telling her cry, her that Jimmy his wife and made insulted day than think, more in she and he thinks one “she shouldn’t week.” thinks in a Reppert, couple, mutual remembered
Marylyn a friend trip a with Jimmy’s death she took whale-boat that a month before long braid that noticed that beaded Reppert the Hesses. Reppert always missing. in her hair was When defendant wore Jimmy and “looked at then happened, had defendant asked what presence, husband’s defendant she I cut it off.” Out her said “Jimmy yanked it of her head.” Defendant told explained that out shooting Jimmy “came home night that the before the Reppert gun a to head and told put mad. And he her very drunk and was body nobody get and rid of her where her could shoot her that he it.” would ever find by Jimmy frequented Bar the Woodshed
The bartender at many temper his times” and even Jimmy “lost recalled friends, bury going “he was her in saying one of threatened her a cop.” him he was nothing happen could because the Pines and attorney a discovery to state- provided in defendant’s Also Timothy Burlington Richardson of the ment from Lieutenant fishing year a trip in Canada Department, who recounted a Police Jimmy drinking evening been Jimmy’s One had before death. “very and to be subdued. violent” had “heavily” and became refused Indeed, episode, Lieutenant Richardson as a result of that Jimmy part of the fishing trip if was to be the next annual go on excursion. February 2001 Statement
Defendant’s taped first giving a after her year than a half More Burlington County statement, at the gave a second one defendant attorney accompanied her Office. Defendant’s Prosecutor’s interroga- office, inexplicably her alone when the formal but left a gave permission to Bur- began. counsel tion Defense session assistant County executive lington Prosecutor’s detective question in his absence. prosecutor to defendant statement, In this defendant offered a different motivation and, shooting interlocutors, with prompting from her down- played Jimmy. the level of abuse in relationship her with theAt interview, Day outset defendant described a Valentine’s Jimmy enraged bar, incident when became out ripping her at smashing the braids from hair couple her her “head a [of] against passenger times side window of [a] truck.” The event,” interviewer then asked whether this was “a one-time Then, responded, through leading to which she “Yes.” a series of questions, got prior interviewer to recant her description Jimmy person: as a violent being In
Detective: statements of JIMMY you have prior painted picture *11 violent that’s not an person. accurate is it? Okay, JIMMY, description get Defendant: No. He would loud and sometimes make occasional but threats generally he would walk away. As matter of Detective: has on a he numerous occasions Okay. fact, own by your statements, walked out of the house or walked from rather than to either away you argument continue an become or Is correct? physical that way. Defendant: Yeah, that’s correct. Through leading questions, more defendant described how family Jimmy finances —for which responsible held her —had Although snowballed out Jimmy of control. expected had purchase Chatsworth, his dream home in defendant was not enamored with idea. couple Defendant believed that not qualify would for a mortgage they a new home because making timely not payments were on existing their mortgage. also She believed that she be would blamed for the failure a mortgage. obtain She application did not submit an for a mortgage rejected. Instead, because she knew it would be she engaged an cover-up. generated elaborate She a fake mort- gage-approval Jimmy letter so they would think that had been approved mortgage. for the She knew keep that her scheme to Jimmy in the dark about the seriousness of prob- their financial lems was about to end. Jimmy
When came home for dinner at August 12:30 a.m. on argued the two about malfunctioning telephone their and the impending move to a new home. He it made clear that he would her, and also told her that he
purchase with or without house securing a attempting to undermine the that was suspected she emotionally hurt admitted that she was mortgage. Defendant Jimmy more than his relation- angry that the house meant new family her, help he seek from his rather ship with and that would rely than on her. Jimmy lay thinking would evening on the couch that
That she mortgage-application ruse. She did not soon learn about up.” angry had messed She [she] him to find out “want angry the finances and she could not control with herself because “stupid.” did not fights in which he called her She their about Jimmy the state of their finances because clean with about come eallin[g]” how bring argument and name about she “it on an would things on the couch she decided right.” not There could “handle Jimmy. to kill gun, wrapped it in a morning, and loaded
In the she retrieved bedroom, Jimmy’s leaving fingerprints, entered T-shirt to avoid gun his gun, aimed the towards head the hammer cocked vision, went to once. She then correcting for her double fired day. called though Even when she 9-1- it were normal work afternoon, hoped that she would be she somehow caught. Agreement
Plea plea agreement, entered into The State and defendant *12 5, from the April set in an 2001 letter terms of which were forth The prosecutor counsel. letter defense executive assistant agreement prompted by defendant’s clear that the was makes The given weeks earlier. “co- “cooperation” statement two —her “convey the truth operation” sought was for defendant to husband, taking life of and led to her the her circumstances which of in which she provide truthful factual recitation the manner a the carried out homicide.” plead agreement, of defendant would the terms the
Under acknowledge aggravated manslaughter; that she would guilty to twenty-five-and- a thirty-year state-prison sentence with a receive one-half-year parole disqualifier; aggravating concede “that the factors under N.J.S.A. preponderate 2C:44-la so mitigat- over the ing factors set forth in N.J.S.A. 2C:44-lb as to make the maxi- years mum term of 30 appropriate”; agree that neither she nor attorney her “affirmatively would imprison- seek a lesser term of Court”; “agree ment from the appeal not judgment her conviction.” return,
In agreed the State that it would dismiss the murder charge, “reducing by years thus mandatory the minimum for 1/2 murder, thirty years parole, i.e. without as the benefit [defendant] cooperation.” derives for her prosecutor The disclaimed sentence, intention to bind the negotiated court to the noting that “principles Warren, 433, enunciated in State v. 115 N.J. (1989),” A .2d1312 would allow such a restriction on the court’s However, discretion. prosecutor it “believe[d] permissible to bind agreement.” [defendant] to this April 16, 2001,
On plea agreement placed was on the record in open court. During plea colloquy, defendant admitted to intentionally shooting killing husband, explaining through leading questions a series of that she had hiding family’s been financial from difficulties her husband and that shooting the culmination of “tensions” that rising had been at home.
Sentencing At sentencing on June objection without from defense counsel, Burlington Township Police Detective Michael Simmons gave a “victim-impact” statement in which he declared that defen- “execution,” dant carried out an pure “an act of uncontrollable hate,” a “cold blooded murder” “cowardly act,” and that Jimmy part was also larger family, police fraternal “brother- Jimmy’s hood.” sister then addressed the court.
Next, without a objection, defense prosecutor played professionally produced seventeen-minute video. The video con- sists of a montage of approximately sixty still photographs of Jimmy’s adulthood, life from childhood to including a photograph of his tombstone. It also separate consists four home-video *13 academy, coaching police the
clips Jimmy: graduation from his fishing game, trips. The video appearing a and on baseball Jimmy’s segment that covered funeral. a television includes photographs and poems displayed are over some Three accompanied by medley a video clips. video The entire Sun”; Beatles, holiday by song “Here Comes the music: a Christmas”; songs, “I’m from country two song, “I’ll be Home for “Live, Love”; hymn, Laugh, religious one “Here Country” and Lord”; military-like I Am and cadences. transcript pages covering prosecutor
The in remarks twelve killing a murder how the viewed the “as case.” described State Jimmy] they knew and were He that “to all who [defendant stated He what he were the really couple.” America’s detailed believed killing and the deliberate and calcu- financial motives behind empha- He defendant shot her husband. lated manner which suggested factors and defen- aggravating sized the “virtually wipes mitigating factors.” character out dant’s presentation, tour-de-force defense counsel response In to that plea agree- his were “somewhat tied” stated that hands any of the evidence that never mentioned ment. Defense counsel or other witnesses that defen- developed he from his client from woman, physically psychologically battered who dant was a and He mentioned and had feared for life. had been threatened redeeming or her blameless nothing about her character otherwise transcript page. comprised more than one life. His remarks little factor or in favor of a argue against aggravating He an did not, “pursuant he mitigating factor. He conceded that could to less agreement, ask the court to sentence [defendant] Nevertheless, years. asked the court to “make an thirty than” he aggravating and of “the independent evaluation of defendant” factors,” thirty-year and consider whether thirty-four-year-old woman. appropriate for sentence was two, number support aggravating factor The court found victim,” on the of harm inflicted gravity “the seriousness 2C:44-l(a)(2), asleep just ... Hess was because “Mr. N.J.S.A. *14 coining,” aggravating didn’t know what was and for factor number nine, deter, 2C:44-l(a)(9). the need to N.J.S.A. The court also support mitigating seven, found for factor number because defen- record, 1(b)(7), prior dant had no criminal N.J.S.A 2C:44— twelve, mitigating willing- factor number because defendant’s authorities, to cooperate ness with law enforcement N.J.S.A. 2C:44-l(b)(12). agreement The court noted defense counsel’s factors, aggravating outweighed factors mitigating expressed they its determination that were if “at least balance aggravating really not for the fact that the outweigh factors do mitigating factors.” The court referenced defense counsel’s agreement argue thirty years. not to for a sentence less than ultimately
The court concluded that “while [it was] authorized to plea agreement, sentence less than the this is the kind of a case certainly where [defendant] could have been sentenced to more gone had she charge originally brought trial on the as and been guilty.” judgment conviction, found On the the court wrote: negotiated plea agreement “This was a between Prosecutor and the appears defendant. It justice, fair and the interests of imposing Court is the recommended sentence.” The court thirty-year sentenced defendant to a state-prison subject sentence to a twenty-five-and-one-half-year parole disqualifier pursuant to Early (NERA), the No Release Act Finally, N.J.S.A. 2C:43-7.2. the court right appeal, that, advised defendant of her but added did, if she the State could move to -withdraw plea offer under plea the terms agreement of the original and move to reinstate the charge. murder
II. Application Post Conviction Relief pursue Defendant did not appeal. September direct In pro (PCR) petition post-conviction filed a se relief petition and an amended was later filed counsel. Defendant essentially claimed that she was right denied her constitutional the effective assistance of sentencing. counsel at At the PCR represented “a argued that the counsel
hearing, PCR proceedings” inasmuch of the adversarial breakdown total plea “[tjrial as a result of as an advocate” failed to act counsel and unconstitutional. public policy against agreement factors, bring to the or to argue Trial counsel failed defen- suggesting the statements sentencing court attention woman, nothing in the though even a battered dant was failed to doing so. Trial counsel him from agreement precluded victim-impact witness speaking as a object to Detective Simmons’s contended that PCR counsel the video. introduction of or to the *15 in a this case great lengths to resolve “[pjrosecutor went the expense of the image at the the victim’s way protected justice.” ... and defendant statements petition the witness to the counsel attached
PCR supported defen- investigator in 2000 by the defense obtained beaten, threatened, and continuous- had been claim that she dant’s also introduced PCR counsel by her husband. ly verbally belittled psycholo- Hughes, Dawn clinical report of Dr. sixteen-page 15, 2006 and who September defendant on gist evaluated who investigative reports. file, including defense the case reviewed that, 2001, she had been Hughes since reported to Dr. Defendant counseling prison from domes- group receiving and individual relationship abusive described an agency. Defendant tic-violence the late 1980s. dating back to her husband with angry and monitor her objects Jimmy throw at her when would with the back of his across the head Jimmy first hit her behavior. from the cleaners. pick up his uniforms forgot to hand after she again. Six not make that mistake but she did apologized, He to leave her attempted shooting, defendant months before driving in his act as he was Jimmy caught her in the husband. vehicle, into pushed her jumped of his Jimmy out police cruiser. nightstick. his She legs with beat her on the house and her pulling hair out of abuse —his physical incidents described slamming causing eyes, and head, face black hitting her in the abuse, such as threats psychological against a window—and head shooting description August to kill her. Her gave police: she intended to similar to the one she first gun accidentally. Jimmy, went off scare and Hughes [defen- Dr. concluded that “the evidence revealed that relationship report of violence in her with her dant’s] domestic Hess, husband, pattern with a of moderate-to- James consistent abuse, partner including physical psychologi- and severe intimate commonly with what is referred to as cal abuse” and consistent Syndrome. Battered Women’s trial attor-
The State submitted certification from defendant’s ney in which he averred that he discussed with defendant the plea agreement potential terms and conditions aggravating mitigating on circumstances based the available evidence, and that he considered the offer “fair.” Nowhere in the explain why certification trial does defendant’s counsel he did not present compiled during at evidence his investigation portrait that corroborated a of defendant as a bat- why object tered woman or he did to Detective Simmons’s “victim-impact” statement or to the introduction of the video. attorney’s alleged professional
Based on her trial deficiencies sentencing, requested sentencing hearing. a new evidentiary hearing
The PCR court an denied defendant *16 rejected application her for relief. that The court noted “there little, any, argument if regard mitigating was with factors” at Nevertheless, sentencing. finding the PCR court believed the any mitigating by discretionary, factors the court was obligatory, objection not that an to the sentence—-the failure mitigating to find factors —should have been raised on direct appeal. regard to With the introduction of Detective Simmons’s statement, acknowledged the “a court that it was far stretch” to family consider “Simmons as a and as a victim.” The member video, expressed particular court also some concerns about the tape of “the television the funeral and the end which the picture of the headstone.” But the court observed that defense objection counsel raised or no either Simmons’s statement challeng- court concluded that defendant’s claims video. The PCR procedurally barred ing excessiveness of her sentence were appeal, R. they have been raised on direct see 3:22- because could 4, that sixth amend- not established “her and that defendant had willingness rights, rights, other were violated ment or [plea] agreement.” to enter into this
III.
A.
Appellate Division
Appellate Division affirmed.
unpublished opinion,
In an
procedural bar of Rule 3:22-4
panel primarily relied on the
The
raising
proceedings
in PCR
prohibits
that
a defendant from
issues
prior proceeding.
panel
in a
The
that could have been raised
defendant,
hearing,
mistakenly
at the PCR
did
believed
post-traumatic
testimony that she suffered from
present “expert
by”
or
spousal
abuse
her husband
stress disorder related
exactly
mitigating
should
“specify
[trial counsel]
what
evidence
earlier,
sentencing.” As noted
that information
presented
have
at
part
of the PCR record.
challenge
nothing more
as
panel
The
considered defendant’s
first
improperly
claim
raised
than an excessive-sentence
proceeding.
panel perceived
post-conviction-relief
in a
The
time
in terms of the
merely relitigating
“her sentence
aggravating
alleged improper
consideration
panel found that defendant received the sentence
factors.” The
plea agree-
knowingly bargained for in her
voluntarily and
she
Briggs,
that reliance on State v.
panel
ment. The
determined
misplaced.
In
(App.Div.2002), was
N.J.Super.
A.2d In
143 panel in this case. critical distinction to the appeal, direct 882). addition, 499, according In (Citing at 793 A.2d id. “clearly crime was a Briggs, record indicated the panel, unlike purposeful murder.” sentencing “second-guess” no panel discerned basis
The
evidence,
victim-impact
discretionary
court’s
decision to admit
It
in-court statement.
tape
the video
and Detective Simmons’s
persuaded that
counsel was constitution
also was not
defendant’s
were,
and,
ally
if
that defendant suffered
ineffective
even
he
prejudice
(Citing
Washington,
v.
466 U.S.
as a result.
Strickland
694,
2052, 2064, 2068,
674, 693,
668, 687,
80 L.Ed.2d
S.Ct.
(1987)).
(1984);
Fritz,
42, 58,
State v.
105 N.J.
IV.
right
Defendant asserts that she was denied her constitutional
to the effective assistance of counsel at
because her
grant
We
on
claim that the
did not
certification
defendant’s
attorney/client
privilege was breached as a result of the admission of defense counsel’s certifica
hearing
tion at
PCR
or on her
claim that
husband's police-department
file should have been
in the PCR
personnel
provided
part
discovery
proceeding.
Hess,
See
144 attorney bring to the court’s attention information at his failed physically that she was a disposal that would have shown woman, state, frayed a when psychologically battered with mental is, attorney despite That her evidence she killed her husband. — portrayal of her as attempt his no to rebut the State’s file—made cold-blooded, ruthless, plotting assassin who murdered a poor from fear that he would learn of their police-officer husband credit, inability a new to obtain bank loan for finances and their home, Although no not to make the move. and her desire agreement explicitly attorney provision plea of the forbade her object- at or from presenting from evidence evidence, victim-impact may wrongly ing prejudicial he have doing Defen- perceived agreement barred him from so. agreement separately plea maintains that the restrictive dant —the type agreement Briggs deprived condemned in her of same — the assistance of counsel. argues that response,
In the State defendant’s PCR ineffective- merely recasting an chal- assistance claim is excessive-sentence appeal on and therefore lenge that should have been raised direct Moreover, the State procedurally is barred Rule 3:22-4. Briggs distinguishable present contends that State v. from event, case, and, retroactively apply should not because it a “new” rule of law. established post-conviction-relief jurisprudence to first look to our see We raising from procedurally defendant was barred whether challenge deprived that she was effective assistance sentencing. counsel
A. opportunity relief is a defendant’s last “Post-conviction reliability a” challenge to the fairness and raise a constitutional Feaster, 235, 249, proceeding. criminal State v. 184 N.J. state See (2005) (citation omitted). hearing A “is not a A.2d 229 PCR exercise, meaningful procedure to” root out pro but forma unjust in a verdict or sen- an result either mistakes that cause tence. See ibid. raising a claim on petition
A
is not a substitute
PCR
Echols,
344, 357,
PCR is a vehicle defendant’s claim much of the evidence tance-of-counsel because supports argument that she was a battered woman was Therefore, court her counsel. presented not not from the an claim was evident ineffective-assistance-of-counsel appeal. on direct We next record and could have been raised governing of counsel. turn to the standards ineffective assistance
B. The Sixth Amendment of the United States Constitution and I, Jersey Paragraph Article 10 of the New Constitution both 146
guarantee
right
the accused
the “effective” assistance of
Strickland,
proceeding.3
supra,
in a criminal
counsel
An
generally
ineffective-assistance-of-counsel
claim is
judged by the Sixth Amendment standards enunciated in Strick
land, supra
adopted by
construing
also
this Court
—standards
I,
Fritz,
Paragraph
Jersey
Article
10 of the New
Constitution.
336;
Allah,
supra, 105
N.J.
A.2d
see also State v.
(2002).
269, 282-84,
claim,
N.J.
To meet
profes
“reasonable
counsel exercised
“strong presumption” that
fulfilling
respon
his
strategy”
trial
judgment” and “sound
sional
689-90,
Strickland,
104 S.Ct. at
at
supra, 466 U.S.
sibilities.
omitted).
2065-66,
(quotation and citations
at 694-95
80 L.Ed. 2d
can
for counsel’s conduct
rules
particular set of detailed
“No
by
faced
variety of circumstances
account of the
satisfactorily take
regarding how
range
legitimate
decisions
or the
defense counsel
688-89, 104 S.Ct.
Id. at
represent a criminal defendant.”
best to
Nevertheless, if a defendant demon
2065, L.Ed.2d at 694.
at
range of
the wide
performance fell “outside
that counsel’s
strates
assistance,”
he has established
competent
then
professionally
690,
at
constitutionally
at
104 S.Ct.
deficient. Id.
his counsel was
2066,
Even “distorting through ef performance viewing counsel’s avoid 689, 104 at 80 L.Ed.2d hindsight,” id. at S.Ct. fects of attorney at clear that defendant’s the record is our Federal and required under both functioning as the “counsel” Constitutions. State
C. plea agreement entered into between restrictive The that the required defendant to concede and the State outweighed the factors aggravating sentencing factors seeking “affirmatively” a term prohibited defendant from hand, thirty subject On the other years than to NERA. less give any particular agreement did not bind the court plea sentence, impinge prosecutor disclaimed intention and the Nothing in the the court’s exercise of its discretion. on provide opportunity counsel the agreement denied defense through him his mitigation evidence known to court with the preclude counsel investigator’s plea agreement did not work. The psychologically physically and arguing from that his client was a *21 sentencing, At de- explain her motivations. battered woman urged independent fense counsel the court “to make an evaluation aggravating of the defendant” “the factors” sentence, setting yet his client’s withheld from the court the very information it needed to do so. counsel had corroborating
Defense nine witness statements his physical chent’s account of and mental abuse at the of her hands against husband as well as his threats her life. The statements painted picture Jimmy available to defense counsel Hess as a “controlling” husband who treated his wife like a “slave” and as hair-trigger, explosive temper. man with a The statements but- tressed defendant’s account about the incident in which her hus- ripped band hair eyes out her head and about her blackened from her husband’s abuse. Defense counsel knew about his investigators client’s claim—in her first statement to prose- put gun cutor’s office—that her had husband to her head the night before she shot him. Defense counsel knew or should have immediately spent known that after his Ghent’s arrest she four days Psychiatric under observation at Hospital, the Forensic where “if she maintained that she did not kill [her husband] he would have killed her.” Counsel did not relate information to court, nor did he inform the court that his client had lost twenty-eight pounds shooting before confirmed —information by independent sign sources and a sure of the emotional distress by leading shooting.4 suffered the months to the statements, accounts, along Those with defendant’s described “a pattern of partner moderate-to-severe intimate abuse” known as Syndrome, according Hughes, Battered to Dr. Dawn Women’s investigators Defense left his client counsel alone with and the executive gave assistance when she her second statement prosecutor prosecutor's image office —a statement that PCR counsel intended claimed was protect statement, officer. But even that which victim-police downplayed defendant, level of abuse earlier described recounted how her husband had against a smashed her head car window and the braids from her head. ripped That statement also made clear that defendant feared her husband's wrath once feigning he learned about the state of the finances and her poor family's mortgage-application for a new home. process
149 hearing. Defense at PCR report expert was submitted whose judge, nor sentencing did report to the provided no such counsel on the informa- argument, based seemingly obvious offer the he woman. him, client was battered that his available to tion collec recognized as “a Syndrome is Women’s Battered characteristics exhib psychological and behavioral tion of common emotionally repeatedly physically are in who ited women by male length of time the dominant prolonged abused over B.H., 171, 182, A.2d N.J. State v. figure in their lives.” omitted). (2005) (citation syndrome is admis Evidence cases, sible, “explain[ ] conduct exhibit typically in self-defense Id. at 870 A.2d their abusers.” by battered women toward ed “why understanding of a woman helps our syndrome 273. The woman relationship” why an “abused abusive remains an powerless to believing that she is may conditioned into become Ibid, omitted). (citations escape from the abuse.” Syndrome certainly was admissi- Evidence of Battered Women’s and, least, argument permitted an would have ble at were substan- mitigating factor number four: “There support conduct, justify grounds tending to excuse or the defendant’s tial 2C:44-l(b)(4). In though failing to establish a defense.” N.J.S.A addition, four present counsel did not other defense support: “The defendant there was evidential factors for which 2C:44-l(b)(3); strong provocation,” “The under a N.J.S.A acted or its commis- defendant’s conduct induced facilitated victim the sion,” 2C:44-l(b)(5); conduct was the “The defendant’s N.J.S.A. 2C:44-l(b)(8); recur,” unlikely of circumstances N.J.S.A. result indicate that and “The character and attitude of offense,” 2C:44- unlikely to commit another N.J.S.A. [she] 1(b)(9). in his file bring relevant information
Defense counsel’s failure indepen- so that the court could to the attention of the trial court identify weigh mitigating factors cannot be ascribed to dently judgment, particularly given strategy professional or reasonable plea agreement prohibit on its face did not defense conveying from such information. counsel Nevertheless, may defense counsel have believed himself hand- by plea agreement. sentencing, cuffed the restrictive At after simply stating agree- that his hands were “somewhat tied” ment, prosecutor’s defense counsel offered no rebuttal evidence, presentation, mitigation explanation forceful no and no *23 course, why killing his client resort to would her husband. Of plea agreement, forbidding in the restrictions the defense counsel arguing thirty years from for a sentence less than or that the mitigating factors, outweighed aggravating may factors the have him Although left with the sense that effort would be futile. defense independent responsibili- counsel reminded the court of its ty sentence, appropriate to determine the the court’s sentence— n with merely agreement. little echoed the terms of the elaboration — Indeed, clearly that judgment is revealed the final words on the negotiated plea of agreement conviction: “This was a between the appears Prosecutor and the defendant. It fair and in the interests justice, imposing of the Court is the recommended sentence.” Prosecutor,
Significantly, Burlington County the appeared who argument, candidly before this Court at oral admitted that the plea agreement restrictive in Hess was a one-time event for his Thus, office—it had never been used before or after that ease. Hess, officer, police Marie the killer of a fell into a of universe one. response question, In purpose muzzling to the “What’s the of the attorney?”, responded, defense the Prosecutor “To ensure that thirty-year in fact [the sentence] would be the sentence that was sentence, imposed.”5 year Less than a after defendant’s the following argument: The at oral occurred colloquy argues The Court: Are afraid that if the defense you attorney appropriate judge give factors the will not somehow sen- appropriate tence? agreement a concern, Justice, Prosecutor: There's in a that the always plea agreement court undercut occurs but it does may very rarely occur. supra, expressly prohibited Briggs, in State v. Appellate Division muzzled agreement plea in the type gag provision of sentencing. attorney at defendant’s agreement employed plea propriety to the now turn We effective assistance defendant the it denied and assess whether counsel.
D. that the State cannot jurisprudence makes clear Our the court’s agreement that would vitiate plea in a insist on a term sentencing. criminal “[A] sentence ability to discretion exereise trial court solely always committed discretion by the Code of prescribed within the standards to be exercised Warren, 433, 447, 558 A.2d v. 115 N.J. Justice.” State Criminal (citation omitted). (1989) “be encum That discretion cannot stranglehold over the sentenc by giving prosecutor bered” 447-48, ing 558A.2d 1312. determination. Id. Warren, disapproved plea- specifically
In State v.
we
prosecutor
to withdraw a
bargaining practice that enabled a
more
negotiated
imposed
if the trial court
a sentence
guilty
*24
prosecutor
plea
in the
than the one recommended
the
lenient
442, 449,
rejection of this
agreement.
Our
Id. at
Significantly, in this the Prosecutor’s statement gag provision in the argument purpose clear that the of the made 152
plea agreement was to do an end run around Warren. The explained gag Prosecutor that intent provision was to possibility sentencing minimize the that the court would “under- sentencing provisions plea cut” the agreement. 496, 501, Briggs, N.J.Super.
In State v.
882
A.2d
(App.Div.2002),
Appellate
Division
princi
extended the core
ples
precluded
type
of Warren and
plea agree
of restrictive
ment
found
the case before us. The defendant in Briggs, who
murder,
guilty
had been
pled
aggravated
indicted
to
man
slaughter pursuant
negotiated plea agreement
to a
“provided
that
agrees
request
that ‘defense counsel
not to
a sentence of
than
less
”
498,
twenty years.’
Id. at
To
its
that
attorney’s
the restriction on defense
advocacy
counsel,
constitutionally infringed
right
on the
York,
panel
853, 857,
Herring
cited to
v.
New
U.S.
95 S.Ct.
2550, 2553,
(1975),
45 L.Ed. 2d
which struck down a state
prohibiting
giving
law
from
defense counsel
a summation in a
trial,
Fusco,
578, 586-87,
bench
and State v.
93 N.J.
As the State post-conviction application an present comes to us on case Nevertheless, Briggs in were not principles set forth relief. principles flowed precedent, and indeed those or a break with new affirming right to directly and decisional law from Warren See, Rhay, v. sentencing. e.g., McConnell counsel at effective (“The (1968) 2, right 2, 4, 21 L.Ed.2d 89 S.Ct. U.S. must, therefore, right to treated like the be counsel adjudication.”). in which stages The manner counsel at other plea agree- seemingly interpreted the restrictive defense counsel right of clearly even to the was antithetical ment this case 3:21-4(b) the defendant “to sentencing. Rule allows allocution at mitiga- Yet mitigation punishment.” present any information in sentencing court. was withheld from the tion evidence Attorney challenge General the State nor amici Neither principles set legitimacy Briggs. affirm underlying We permit restrictions Briggs. jurisprudence Our does forth sentence, argue or to right argue for a lesser on the of counsel factor, or how against aggravating factor or for a an balanced, deprive defendants of as this would factors should be *26 154 advocacy attorneys deny
needed of their our courts the insight justice. Briggs needed to administer is consistent with and a natural extension of Warren.
Putting object aside defense counsel’s failure to to the plea agreement sentencing, restrictions at the time of perhaps downgrade aggravated manslaugh out of fear that the jeopardized, present argue ter would be failure to mitigating only explained attorney evidence can be dereliction. end, plea agreement In the the restrictive helped to fuel the process of breakdown the adversarial this case. The net effect of his counsel’s abdication of role as an advocate was that sentencing deprived court was arguments information and that might impose well have it sentencing led lesser term.6 The account, prosecution’s impassioned court heard the and from the deafening defense a silence. present mitigating argue
We find that the
failure
evidence or
factors was ineffective assistance of counsel —even
plea agreement.
attorney
within the confines of the
Defendant’s
functioning
guaranteed by
was not
as the “counsel”
either our
Strickland, supra,
Federal or State Constitution. See
466
at
U.S.
687-88,
2064-65,
693-94; Fritz,
104
at
supra,
S.Ct.
We need future, principles hearing in the sometime At a new already expressed, the Briggs apply. For the reasons will *27 striking The plea agreement in are void. restrictions the there was a plea agreement places of in doubt whether terms the Therefore, plea the meeting parties. of the minds between the it agreement unless State wishes to adhere to itself is void the offending may at the provisions.7 the The be vacated without occur, parties that the are free to option of the State.8 Should negotiate plea agreement, proceed a or the State can to trial. new trial, guilty plea or a conviction after at the new If there is a sentencing hearing opportunity will have the to intro mitigation argue mitigating that the factors duce evidence and outweigh aggravating argue for a lesser sentence. factors and counsel was constitution-
We still must address whether defense evidence, object in ally failing victim-impact in to the ineffective particular the video tribute to the life of Officer James Hess admissibility The the in-court statement of Detective Simmons. vigorously challenged by that video is defendant. hearing. only sentencing Defendant seeks new Appellate laboring We note that both the PCR court and the Division were regarding misimpressions the law or facts. The PCR under certain either mistakenly finding mitigating solely court believed that the of a factor is a matter However, Dalziel, of discretion for the trial court. in State v. 182 N.J. 504- (2005), sentencing 867 A.2d we held that if a court finds that a record, supported by factor is evidence in the then factor “must Blackmon, 283, 297, part process.” [its]
be
deliberative
See State v.
202 N.J.
(2010) (noting
“mitigating
suggested
V.
right
Crime victims are accorded the
to be heard before and at
sentencing
the time of the
of a defendant. See N.J.S.A. 52:4B-34
(Crime
2C:44-6(b)(3);
Rights);
to -38
Victim’s Bill of
N.J.S.A.
see
Blackmon,
283, 298-99,
(2010)
v.
also State
202 N.J.
At
no
that a
one
member can make
present
photographs
statement about a homicide victim or
or
showing
even
video
the victim as he or she
in
lived
the time
any
before his or her death. The issue is whether there are
limits
type
displayed
sentencing.
to the
of video that can be
jurisprudence concerning
Our
victim-impact statements has de
veloped
capital
juries,
judges,
the context of
eases in which
not
See,
required
were
whether to return a
decide
death sentence.
Koskovich,
(2001)
448, 501,
e.g., State v.
168
144
N.J.
776 A.2d
(refusing
“per
prohibition against
se
establish
the inclusion of
poetry”
expressing
but
“concern about the emotional nature of
Muhammad,
poetry
expression”);
and similar forms
State v.
23, 48, 55,
(1996) (noting
victim-impact
145 N.J.
157 emotional, factual, not and should be free of inflamma- “should be references”). tory comments or
Undoubtedly,
prejudicial victim-impact
over
state
concerns
ments,
videos,
including photographs
pronounced
are less
imposing
judge
jury
when a
rather
than a
is
sentence. See
Blackmon,
303,
Nevertheless,
supra,
158 college poignant ... featuring pictures “from birth to set (1st denied, Cir.2007), music”), aff'd, 13 cert. 553 U.S. 486 F.3d State, (2008); 1035, 128 2424, 171 234 Salazar v. 118 S.Ct. L.Ed.2d 880, (vacating (Tex.Ct.App.2003) sentence rendered 882-85 R.W.3d containing victim-impact video 140 still due to seventeen-minute life, entirety including child photographs spanned of victim’s “My hood, songs by Enya and was set to such “River” Prince, Dion); People v. 40 by Go On” Celine see also Heart Will (2007) 543, 1015, 1093 Cal.Rptr.3d 57 156 P.3d Cal.4th beyond a mo (expressing “last[] concern over videos that few victim, ments,” “emphasize[] the childhood of an adult or denied, music”), by stirring cert. accompanied U.S. [that are] (2008).9 887, 169 1106, 128 L.Ed.2d 742 S.Ct. professionally produced seventeen-minute video enti The sentencing in played “A James Hess” tled Tribute Officer specifically disapproved this case includes features that have been jurisdictions: photographs in childhood and music courts other prejudice. likely appeal solely engender to emotion and undue approximately sixty photographs still and four displays The video phases clips of the victim various activities and home-video photographs includes of the victim’s childhood his life. The video segment covering his funeral. and his tombstone and television poems photographs clips. The Three scroll over the video military holiday, country, religious, and popular, is scored to video victim-impact in advance to provided music. The State video practice should be both the trial court and defense counsel. This permits vetting it followed in the future because the video played it in court. before The Texas Court of Criminal its view of "enormous” Appeals expressed “|T]he
prejudicial
of the adult victim's life
effect
videotape
implicit
Salazar:
angelic
suggestion
infant;
this
he killed this
[the defendant]
is that
murdered
laughing, light-hearted
first-grade
child; he snuffed out the life of a
soccer player
dog.
danger
young
hugging
The
of unconscious-
and of the
his blond
boy
puppy
(latter
high.”
misleading
jury [was]
Salazar,
In counsel should have this defense strategic video, considered his to do so cannot be the and failure photographs of the victim’s music and the or reasonable. The tombstone, segment about and the television childhood and of his anything meaningful about the victim’s project his funeral do not of his death. family his and others at the time life as it related to they from because They should have been redacted the video value, great but instead have the probative contain little to no Although we do unduly or inflame emotions. capacity to arouse video, alone, had the not the introduction of the believe sentence, on remand the video capacity to alter the outcome opinion. in prescriptions accord with the this should catalogue of what is and is forth an exhaustive We cannot set video, say permissible in other than to how this video not a way limit permissible in no intend to the exceeded bounds. We family present photographs and videos within right of members victim, express or to period before the death the reasonable example, not ways they in the see fit. For we do themselves poema in court. suggest family that a member could not read Clearly, right speak had a to the court at the victim’s sister right sentencing. Family members have the to describe the thoughts. on But there depths of their loss without a filter their video, overly lengthy baby photographs of an adult are limits. An victim, religious pop music do not video scored any legitimate objective against the broad advance even contours Rights. Ultimately, Bill trial must be of the Victims’ court aggravating guided the relevant factors determining appropriate sentence.
Furthermore, although Detective does not meet Simmons statutory family Bill definition of member under the Victim’s Rights, the court has discretion whether to allow others to Blackmon, speak supra, See 202 N.J. at sentence. Simmons, appears, it A.2d 194. Detective made the same state open provided ment in court that he in a letter to the earlier objection addressing sentencing judge. No was made to his already the court had read Detective Simmons’s court. Because letter, likely changed have presentation its oral would remand, anew On court should consider outcome. making open propriety of Simmons’s statement Detective *31 opportunity if is offered the to do so. court he
VI.
Division,
Appellate
expressed,
For the reasons
we reverse
petition
post-convic
for
which
the denial of defendant’s
affirmed
that
was denied her constitu
tion relief.
conclude
We
I,
right
assistance of counsel. Article
tional
to the effective
Constitution,
Fritz,
Jersey
supra,
Paragraph 10
the New
see
336,
law
519 A.2d
and our state-court decisional
N.J.
Warren,
decision,
provide
independent
ground
an
state
for our
see
446-49,
1312; Briggs, supra,
supra,
Because the restrictions void, right argue a sentence are those terms must be to for lesser sought only a new agreement. from the Defendant has stricken original plea sentencing hearing. But the absence terms, may meeting of minds between agreement’s there be no Therefore, proceed to and defendant. the State is free the State sentencing hearing offending provisions or to to a new without the proceedings plea. This case is remanded for consistent vacate the opinion. with this RIVERA-SOTO, dissenting.
Justice was for a ago, defendant Marie Hess indicted Over decade cold-blooded, first-degree police murder her heinous crime: the exposed up to slept, charge that her officer husband while he years during thirty minimum of which she prison, life in with a 2C:ll-3(b)(l). Defen- eligible parole, N.J.S.A. would not be for agreement meaningfully negotiated plea into a dant entered agreed plead to in fact penal exposure: she and reduced her first-degree aggravated manslaughter, pled crime of to the lesser 2C:ll-4(a), in violation of N.J.S.A with a recommendation of thirty years’ imprisonment subject provisions of the No Early (NERA), 2C:43-7.2, Act pursuant Release N.J.S.C. to which eligible parole serving she would become twenty-five after years. one-half plea agreement
That great crafted with care between State; sought advantages defendant and the each side and made willing, knowing and informed concessions to achieve those advan- tages. comprehensively April As memorialized an 2001 letter counsel, from the State to defendant’s sought (as [defendant’s the State to assist her late husband’s cooperation family Hess) the “victim-survivors” of the homicide of James B. in their family grieving individual [the State] processes. Specifically, requested [defendant] taking the truth as to the circumstances convey which led to her life of husband, and recitation provide the manner in which she truthful factual carried out the homicide. [the State] As indicated [defendant] this awas you, prerequisite being given negotiated consideration to a [the it State], [the State’s] as was plea by investigation [its] view as a result of that this, was a quite murder case. simply, *32 the [NERA] With of to this as the applicability erime[,] well as normal (either 30[-jyear for murder life options with a imprisonment or parole disqualifier parole), a sentence 30[-]year [the without the of State’s] it was possibility position agreement that an would a to Murder with a encompass term of plea 30[-]year [The without imprisonment parole. of State], course, was aware that as the you, advocate for [defendant], [the State’s] that always hoped would be altered position to the benefit of [defendant]. light [I]n [defendant’s] of following State] the will extend cooperation[, the plea single offer: the State would amend the count the above-captioned indictment of charging charge Aggravated Murder, in violation N.J.S.A. 2C:ll-3[,] to Man- of slaughter, (]a[) in violation sentencing, 2G:11-Jt[ ]. N.J.S.A. As to [defendant] of acknowledge must the NERA ... applicability to this crime. Further, [defen- of acknowledge dant] pleading guilty must that understanding she is with the that she will receive a sentence 30 in the New years State Jersey Prison, and, of further acknowledge, that as that part sentence she will receive a period parole of of ineligibility agree Further, years. % must that [defendant] neither on you, of term, her behalf, nor she will seek a lesser affirmatively the imprisonment of from agree Court. Additionally, will [defendant] to her affirmatively appeal judgment conviction. of through agreement, [the State’s] It is intention, this to plea benefit to provide allowing [defendant] for her Aggravated Manslaughter in to cooperation plea which she crime, has indicated, was a clearly [The State] murder. purposeful is 4)1 reducing i.e.[,] minimum for murder, thirty years the mandatory years derives for her cooperation. as the benefit she without parole, conceding the maximum of NERA to in [Defendant] is, turn, applicability Manslaughter. Aggravated Further, she is for the crime term of imprisonment (]a[) conceding aggravating 2C:44-1[ ] N.J.S.A. so prepon factors under that the (]b[) 2C:44-1[ ] as to make set forth in N.J.S.A. factors derate over that [The State] would also indicate the maximum term of years appropriate. in to to sentence this fashion pursuant we cannot bind the Court [it] is aware that (1989), 1312] [558 N.J. 433 A.2d Warren, in v. enunciated State principles it to bind we believe However, permissible our intention to do so. and it is not agreement. [defendant] to this 3:9-3(c), [the State] disclose that and to B. it is our position you Finally, pursuant [the] in agreement concurrence and seek Court’s Court this term same. (first original).] remaining [ emphasis supplied; emphasis by a plea agreement of that reaffirmed the terms Defendant referenced, written, that attached signed plea form initialed and Moreover, plea at the April 2001 letter. incorporated the under present and testified during was hearing, which defendant “[njeither clearly [he] [the nor oath, stated counsel defense sentence, other than argue [c]ourt prosecutor] will That, appropriate. agreement, is set forth in the that which is impose appropriate course, what [c]ourt leaves the sum, plea agreement, forth in the detailed In as set sentence.” charge downgraded the it amended and part: its the State did manslaugh- first-degree aggravated first-degree murder from sentence, subject thirty-year ter, imposition of a requested the 16, 2001, pled part: April on she NERA. Defendant also did manslaugh- first-degree aggravated offense of guilty to the lesser entering into that Satisfying that defendant itself ter. directly court ad- voluntarily intelligently, knowingly, follows: dressed defendant everything that I have heard here open have heard [Defendant], obviously you *33 going understanding to make that are you And it’s my
court this afternoon. late husband. to the homicide of your admissions with certain respect charged with ... have been I to make to is you And that want you point committing if are knowingly with it, you a murder which would carry and purposely longer, serving in State Prison, 30 years possibly minimum of convicted, actually least. but that at very certainly aggravated manslaughter You’ve been offered the to to which opportunity plead agreement based on the is, that I’ve heard in a little bit less than your presence, jail. that ... 25 minimum time in years actually $ agreement, not to if I It’s that were to sentence in accordance say with you your of 30 that wouldn’t serve more than the bare bones percent years, you minimum, but couldn’t service more than the certainly you maximum. things got I tell those because you need to have even before you decided, you but still whether here, here, or under all the that not, circumstances, makes sense to because alternative is this. you your go obligation You can to trial. The State has the to a reasonable prove, beyond guilty charge brought against doubt, are of the that the State you has you. bringing And, can do that course, witnesses to court they only by to testify against you. [defense And counsel] then would have to cross-examine those every opportunity telling jury, in an witnesses, to breakdown what attempt they’re his attempt to be of guilty. to because it well be help you would be found not may you strength Only know what and you know what the of the happened you State’s are. And one would proofs assume that counsel] defense had you [your have things. to discuss ample those Because opportunity once the State has concluded its case, then have an you opportunity present case. You could your part bring witnesses to court that believe would you be helpful you. get You, could on course, the stand and tell whatever think you would be story You could helpful you. have a trial and refuse to take the stand. And when I get refuse, what I say mean is could you choose not to on the stand because you obligation get don’t have any whatsoever to on the stand and tell at all. any story jury [The gentlemen, could prosecutor] not tell the that, ladies and [“]well, you telling should convict this because she’s not lady any different than what I story through right told go witnesses.[”] you my He does not have th[ere] right because have the you constitutional to remain silent at own trial. You your obligation get have no at all to on the stand. And decision to have a trial your get on against the stand and cannot be testify used, any way, you. Once defendant acknowledged she understood those instruc- tions, the trial court plea reviewed defendant’s form with her. acknowledged She under oath that she had every ques- reviewed plea tion on counsel; form with her that she understood all of questions; that she had truthfully; answered them that she signed had initialed places; the form in several that she had acknowledged application plea sentence; that, of NERA to her although “judicial the court retained discretion to sentence [her] to less than” agreement what the provided, the court did not give “want to hopes any hopes [defendant] false or at all that would [it] sentence agreed-on [defendant] to less than” the sen- *34 into or coerced to enter tence; threatened that had not been she agreement plea into the had entered agreement; that she plea made; that she had been promises voluntarily; that no additional represented “an it plea agreement because entering into the might [defendant] time than realistically, to serve less opportunity, serve[;]” “under the was not likely that she to otherwise be alcohol, not, or drugs, medicine, or prescribed influence to make a wise for might [her] make it difficult anything at all that speak [her to with choice[;]” opportunity a full that had “had she interest[;]” that she [her] is in best about what counsel] defense counsel; that she speak to with her enough opportunity” had “had to counsel and question her opportunity had sufficient had satisfied with that she was questions; to those answers receive fully plea understood lawyer; that she advice as her counsel’s adjudicated guilt right to have her had the proceedings; that she waiving right. trial; that she was in a intentionally having for a factual basis provided After defendant slept, the court declared he husband while and killed her shot aggravat- factual basis is a sufficient that “there itself satisfied by “show[ed] defendant facts as admitted manslaughter” as the ed spoke to The court life[.]” human an extreme indifference that, although court understood noting directly, defendant is[,]” court had made plea agreement “what [defendant’s] nothing than that.” expect less should “very that [defendant] clear again, count “once don’t point, the court stated Emphasizing the first- Accepting defendant’s anything different.]” on pre-sen- ordered a manslaughter, the court aggravated degree hearing. sentencing report and scheduled tence hearing, present- sentencing the State During the June of the family, and one victim’s prepared a video ed victim-impact state- aloud a police officers read fellow decedent’s already had been department police victim’s ment from the interposed no judge.1 Tellingly, defendant sent and the both the video majority and inaccurately portrays 1 The unfairly as a "video pejoratively describes the it videotape statement: victim-impact objection reading victim-impact either the video or to the open mitigation, argued In statement aloud court. follows: agreement *35 Honor from As knows the and the letter that your plea accompanies knowingly, intelligently [Defendant] hands are tied. it, somewhat and volun my agreement entered [the into a and it was as after it: tarily plea prosecutor] put negotiation. agreement hours of many and That does many, days notr,] plea however[,] bind this Court. It cannot. cannot not ever We and will be able to bind agreement; in
the Court terms of a State v. is clear on plea Warren that. The Court must make an evaluation of the each independent defendant, and every aggravating mitigating the defendant, and factors and consider what sentence is regardless might [defendant] of what I [the or or think appropriate be prosecutor] might or be to recommend to this court. appropriate appropriate agreement, cannot, I this [defendant] to ask court to pursuant plea the sentence agreed to than [what] less I ask to. can the Court to make an independent aggravating mitigating recognizing evaluation of the and factors the lack of any recognizing all of the prior criminality, factors, and consider whether appropriate or this not Court believes this instance that a for particular sentence a 30[-Jyear old woman is under the 34-year circumstances. appropriate agreement. I’m bound by There’s more I can do but leave my it to the Court, your Honor’s discretion and that the Court will find the hope appropriate given sentence these circumstances. opportunity sentencing Given directly, address the court sentence; instead, did for defendant not ask a apolo- lesser she for gized her forgiveness. actions and for asked She raised nothing else: neither that she claimed to have been a battered woman or suffering otherwise capacity, from diminished nor that agreement of plea terms her restricting seeking from her a lesser sentence were somehow improper. unlawful or carefully identifying weighing
After
aggrava-
and
the relevant
factors,
ting
court addressed the
particular
plea agreement.
terms of defendant’s
It noted that
quite correctly
that[,]
pointed
defense counsel “has
out
while there
case,
plea bargain
is a
in this
agreed
argue
he has
not to
[a
for
religious
the victim's life set to
music[,]” and it mischaracterizes the
popular
given
statement as “an invective-filled
victim-impact
statement
victim-impact
officer who
with
police
served
defendant's
husband.” Ante at
was amended to offense with maximum agreed of 30 The exposure years State to prison. recommend a sentence of 30 eligibility that 85% of to be before years, served parole to NERA. In pursuant agreed and I return, defendant not to seek a lesser term of at imprisonment sentencing, aggravating stipulate under factors, N.J.S.A. 2C:44- (]a[) 1[ so ], over preponderated factors, under 2C:44- N.J.SA (b) 1[ as make ], the sentence 30 years appropriate. Additionally, agreed right her to waive to appeal. He further certified that he had “had extensive discussions with meaning defendant as negotiated plea all terms of the agreement.” He stated that he had [his] “advised client State’s was fair potential exposure offer since her trial at greater much based on the facts overwhelming evidence of guilt.” her He certainly also certified that “[defendant under- receiving stood that she was plea agreement by benefit of the having first-degree the indictment from amended murder first- degree manslaughter thus significantly reducing potential exposure sentencing.”
Responding to allegations defendant’s of ineffective assistance of counsel, emphatically defendant’s trial counsel certified that “[a]t no time I inaccurately did or convey misstate either defendant’s potential exposure meaning at trial or the the terms the negotiated plea agreement.” He also certified that he had “dis- cussed with the proof, defendant State’s burden of discovery exposure as a obligations!,] potential trial
materials and her convicted!;]” if he “also discussed first-degree that offender defendant, with the aggravating and factors potential input discovery materials and the defendant’s based on offense!;]” underlying her and facts information to events defenses, plausible with defendant all and that he had “discussed Importantly, including relating violence.” defenses domestic any of to which her trial did not rebut the assertions certified. counsel had 14, 2007, petition post-conviction for
On December defendant’s rejected all of conten- The court defendant’s relief was denied. tions, nothing presented by finding the defendant “[t]here that her [S]ixth this conclude that [c]ourt that would allow Amend- by willingness any rights, were violated rights, ment or other agreement.” It determined that defendant’s to enter into this admissibility video Det. respect in of either the or concerns victim-impact that open-court reading of the statement Simmons’s could have already submitted the court and should had been questions appeal, thereby placing both presented on direct been R. petition post-conviction relief. See the reach of for outside not, post-conviction relief “is (providing petition that for 3:22-3 3:22-4(a) conviction”); however, appeal from R. a substitute for in (“Any proceedings resulting in the ground relief not raised for any appeal proceedings in taken ... or in such the conviction post-conviction in proceeding [for assertion is barred from relief.]”). and, unpublished opinion, Appel- an appealed
Defendant petition post- denial of defendant’s late Division affirmed the Procedurally, is no “[t]here it concluded that conviction relief. appeal the could have raised on direct question that defendant petition!,]” that arguments “[de- in her PCR she submitted doing by precluded from so that she was fendant cannot assert clearly It that informed plea agreement.” “[d]efendant noted 3(d) sentencing judge accordance with Rule 3:9— right, but though agreed appeal, she she still had even
169 so, if she chose to do right the State would have the to withdraw plea the offer and original charge.” reinstate the Substantively, Appellate rejected Division also defendant’s plea agreement. attack on her Explaining that what defendant doing was “asking the court to plea agree- undercut ment[,]” it stated that it persuaded was “not that defendant prong established either of ineffective assistance of trial counsel.” Noting that “challenge defendant’s is to trial counsel’s failure to potentially mitigating enumerate evidence at hear- ing object and failure to presentation to the allegedly improper impact evidenee[,]” “[ejven victim panel concluded that if we were to deficient, assume such conduct was which we do not find it was, demonstrate, defendant fails by a reasonable probability, prejudice prong of’ two-prong test determining for wheth- er counsel’s assistance was ineffective. See Strickland v. Wash- ington, 668, 687, 694, 466 2052, 2064, 2068, U.S. 104 S.Ct. 80 674, 693, (1984) L.Ed.2d (adopting two-prong test for claims of counsel, (1) ineffective assistance of that: performance counsel’s was insufficient and made errors that were so serious that counsel was not functioning effectively guaranteed by the Sixth Amend- ment (ineffectiveness to the United States Constitution prong), (2) performance defect in prejudiced rights defendant’s to fair trial such that there exists a probability that, “reasonable but for errors, unprofessional counsel’s the result of the proceeding would have (prejudice been different” prong)); Fritz, v. State 105 N.J. 42, 58, (1987) 519 A.2d (adopting Strickland test in New Jersey). granting
After
petition
defendant’s
certification,3
for
State v.
Hess,
(2010),
203 N.J.
that the
*39
plea agreement and sentence are somehow
sustaining
nations
constitutionally
According
majority,
to
the effect of
the
deficient.
her constitu
plea agreement
the
was that “defendant was denied
sentencing!,]”
right to
assistance of counsel at
tional
the effective
deprived the court of
“[d]efense
and that
counsel
sentencing hearing.”
necessary
meaningful
that
for a
evidence
was
view,
129,
majority’s
“[t]hat
at
In the
alone
Ante at
23 A.3d
376.
longer
process
counsel no
was
so
adversarial
that
undermined the
as
criminal
of an
envisioned in our
serving in the role
advocate
129,
It
that “the
justice system.” Ante at
I cannot agreement right sentencing?!']” [the] 2. Whether her of counsel deprived hearing granting an on her Petition erred in not defendant evidentiary court 3. the effective Relief?!]” for Whether denied Post-Conviction hearing?!]” 4. Whether the admission of of counsel at her assistance statement of Detective Simmons the videotape victim[-]impact grossly prejudicial [defendant and necessitates new deceased was sentencing hearing?! errors counsel amounted and] 7. Whether cumulative and denial of fundamental fairness? ineffective assistance counsel
I.
appeal
petition
This
post-eonviction
based on defendant’s
for
generally
(setting
relief. See
R. 3:22-1 to -12
forth
for
rules
relief).
post-convietion
petitions
post-conviction
for
“Our
relief
”
proceeding
‘analogue
corpus.’
is the
to the federal writ of habeas
Echols,
(2009)
344, 357,
State v.
(quoting
N.J.
Ineffective of petition assistance counsel claims raised on a post-conviction gauged relief are under the two- Strickland/Fritz test, prong whereby [ulnless both of the test are parts established, defendant’s claim must fail. The showing first of the test is satisfied part that counsel’s acts or omissions were range light outside the wide of assistance considered of professionally competent the all circumstances of the case. No set of detailed rules for counsel’s particular conduct can take account of satisfactorily the variety circumstances faced by range legitimate regarding defense counsel or the decisions how best strong a criminal defendant. As a there
represent result, is presumption range counsel’s conduct falls within the wide of reasonable assistance. professional That be rebutted if defendant demonstrates presumption may that counsel’s actions strategy. did not to sound trial equate judge challenged The court must the reasonableness of counsel’s conduct on the facts of the viewed case, as of the time of counsel’s conduct. For particular the be overturned because an valid conviction will not
reason,
merely
otherwise
judgment during
his or her
exercise
is dissatisfied with
counsel’s
trial.
that,
is
there exists a reasonable
The second
of the test whether
probability
part
proceeding
would have
errors,
the result of
but for counsel’s unprofessional
challenged
be so serious as to undermine
error must
is,
been different. That
the courts
in defendant’s conviction.
confidence
(citations
and internal
[Echols,
358-59,
199 N.J. at
A.2d
quotation
supra,
omitted).]
marks
II.
A.
fashion,
newly
summary
majority proclaims
as
Stated
obligation
counsel’s
gospel
constitutional
that defense
minted
waived,
sentencing
at
cannot be
even
present mitigating factors
on that
bargained-for plea agreement. Based
a condition of a
theory,
majority
underpinnings of
voids the fundamental
novel
majority’s
bargain
by defendant and the State. The
struck
carefully negotiated and
unapologetic dismantling of a decade-old
fact
agreement presents the State with what is in
constructed
twelve-year-old
prosecute
a now
no choice
all: either
anew
negotiated
case,
accept
aggravated
murder
or be forced
plea,
manslaughter
negotiated
all
of that
plea, forfeit
the benefits
be
hearing where defendant will
and conduct a new
plea agreement
forbade.
present proofs
otherwise
allowed
Warren,
analysis
supra,
cases:
majority
its
to two
The
tethers
illusory, as
case is
Briggs, supra.
mooring
That
neither
Warren,
quite
controlling
supra,
circumstances
here.
addressed
here;
“negotiat
presented
grappled
it
with a
from those
different
*41
sentence,”
is,
permitted
is
to “with
one where the State
ed
that
imposed
if the
lenient
guilty plea
from
sentence
more
draw
the
by
by
and
prosecutor
contemplated
the
than that recommended
437,
agreement[.]” 115
It is that defendant’s did sentence”; implicate “negotiated nothing in defendant’s agreement plea bargain authorized the State to from withdraw if agreed imposed. a sentence less than what was On the contrary, plea agreement specifically provided that both the State and defendant were “aware that we cannot bind the Court to pursuant sentence in this fashion principles to the enunciated [Warren, ], supra However, and it is not our intention to so. do permissible agreement.” we believe it [defendant] bind to this then, appeal, presents entirely This facts and circumstances differ- Warren, here; making inapplicable ent from those it considered indeed, plea agreement specifically subject this was made to and entirely consonant Warren. with A majority’s Briggs, supra, like fate awaits the reliance on “ where, pursuant plea agreement, agrees ‘defense counsel ” request twenty years.’ not to a sentence of than less 349 N.J.Su-
174
Briggs panel
that
Although
A.2d
held
per. at
882.
plea
deprived
of effective
“the restriction in the
form
defendant
stage
pro
criminal
during
of counsel
a critical
assistance
ibid.,
that,
eeeding[,]”
it
conceded
unlike the circum
nevertheless
why
presented
appeal,
in this
is unclear how or
“[i]t
stances
prohibited
that
defendant from re
restriction
form
twenty years
questing
than
was included.” Id.
a sentence
less
793A.2d 882.4
plea agreement reached in this case between
bargained-for
The
sophisticated,
deliberate and
and the State reflected
carefully
defendant’s desire to minimize
nuanced balance between
provide
closure to the
penal exposure and the State’s wish
doubt,
family
No
the indictment for
grieving
victim’s
and friends.
readily
Defendant
admit-
first-degree murder was well-founded.
intentionally
plea colloquy that
selected a firearm
ted in her
she
not
and for which she could use
that she knew would
misfire
wrapped
weapon
in cloth to avoid
speed-loader;
that she
fingerprints;
approached
that she
her husband while
leaving her
head,
him;
killing
that
then
asleep and shot him in the
she
he was
later; and that
did not return until several hours
left for work and
help until after
returned from work
did not call for
she had
she
her husband was dead.
In those circumstances—
and was certain
ready, willing
prove through
all of which the State was
and able to
competent
first-degree
conviction for
mur-
evidence—defendant’s
der,
mandatory
thirty-years’ imprisonment
minimum
and the
Further,
year
Briggs
defendant’s conviction and
was decided almost
after
any
holding
unappealable,
of its
discussion
sentence became final
matter,
or,
having
retroactive effect —is
full retroactive
effect —
matter,
or,
majority’s
opinion
glaringly
from the
from that
for that
absent
analysis.
Moreover,
Briggs
Appellate
Division-our intermediate
was decided
binding
appeals
on this Court. New Amsterdam
decisions are not
court —whose
218, 224,
(1955) (explaining
Popovich,
On the other “assisting] her late cooperated if she prosecution of defendant (as of the homicide of family the ‘victim-survivors’ husband’s Hess) family grieving processes.” B. in their and individual James exchange “convey[ing] In the truth as to the circum- for defendant husband, taking life of her stances which led to her providing] a truthful factual of the manner which she recitation homicide[,]” plead out the State allowed that defendant carried manslaughter charge first-degree aggravated of lesser subject to three conditions: that the State would recommend the thirty-year imprisonment subject imposition of a term of NERA; nor counsel would “affirma- that neither defendant her Court[;]” tively imprisonment seek a lesser of from the term “affirmatively agree appeal judgment that she not to of conviction.”
Thus,
Briggs,
unequivocal
unlike
there is a clear and
record
why
plea
here as to
or
in the
form that
“how
restriction
prohibited
requesting a
than
from
sentence
less
Also,
[thirty] years
793 A
was included.” Id.
.2d 882.
Briggs
on that
focused
defense counsel’s failure
“advance
factors,
that,
argument
preponderance mitigating
because
substantially
imposed]
lower
was
[what
sentence
than
Again,
merited[.]” Id. at
B.
analysis
majority’s
is the hitherto unheard-of
Central to the
ability
bargain
may
a defendant’s
notion that a
never
restrict
recommended;
the basis for
a sentence lower than the one
seek
proposition
apparently rests in the
seemingly
intractable rule
always
criminal
determination of a
sentence
“[t]he
of the trial court to be exercised
solely committed to the discretion
prescribed
the Code of Criminal Jus
within the standards
tice[,]”
by implication
should not
be
and that such “discretion
prosecutor’s influence on the
by augmenting the
encumbered
Warren,
447-48,
supra, 115 N.J. at
sentencing determination.”
“[sjueh
omitted).
(citation
Warren also states that
However noble here, and, needlessly presented in of the facts uncon- the context Comprehen- scionably example, For Section 12 of the overbroad. 1986, 2C:35-12, specifically Drug Act of N.J.S.A. sive Reform that, dangerous respect in of certain controlled sub- provides may enter into a prosecutions, the State and the defendant stances specified imprison- a term of “negotiated plea provide[s] for [that] instances, sentencing at shall not In those “the court ment.]” expressly imprisonment ... than that impose a lesser term In plea agreement.” ... Ibid. provided for under the terms the words, parties and applies, 12 the State other when Section —the degree lower, to a crime one if it the defendant to a term to sentence appropriate outweigh the that the factors substantially is convinced ‘clearly ” justice aggravating Yet, the interest of demands.’ Ibid. as factors and where legisla- Briggs conceded, "because of the in even the panel reluctantly appellate manslaughter, aggravated judgment trial courts to enhance the tive penalty (citation Ibid, downgrading for such offenses.” 'should be cautious’ in sentences omitted).
177 specific the to bind the court as to authorized the defendant —are Yet, raises no constitutional imposed. that statute sentence to be meaning present infirmity respect of a restriction on counsel to Stewart, 179, sentencing. State v. 136 N.J. arguments ful (1994) expressly prohibits 12 (holding that “section 642 A.2d imprisonment than that imposing from a lesser term of court Bridges, v. 131 N.J. State provided plea agreement”); in the (1993) (same). 405-06, If, at least in the context A.2d agree illegal drug prosecutions, a defendant can that the State and impose a sentence less than the sentence the court is forbidden plea bargain, principled rule of law agreed on in a then what defendant, agreeing that the prohibits parties those same from already having charge of a and its received the benefit reduced penal exposure, not seek a lesser sentence concomitant lesser will plea agreement? The is: the one forth in the answer than set none.6 Further, system, procedure by prosecution federal the which the binding agreement properly plea that
the defense
can enter into
valid and
plea
specifies
specific
imposed
sentence is to be
and binds the court if the
accepted
part
processes
been
is so
of the fabric of their
that it has
much
11(c)(1)(C) (providing
prosecution
defen
codified. See Fed.R.Crim.P.
may
plea agreement
specific
or
dant
enter into
that defines that "a
sentence
sentencing range
appropriate disposition
is the
of the case” and that "such a
accepts
request
plea
recommendation or
binds
court once the court
limitation,
11(c)(1)(C)
agreement”).
plea agreement
If a
contains a Rule
(1)
just
accepting
plea
court's alternatives are limited to
two: either
(2)
bargain,
allowing
provided
in the
or
Cieslowski,
*45
guilty plea.
defendant to withdraw his or her
See United States v.
353,
(7th Cir.2005)
accept
(explaining
if
"does
410 F.3d
the court
sentencing agreement
entirety,
in its
the defendant must be allowed to
guilty
power
plea
plea [as]
withdraw her
the court does not have the
to retain the
denied,
1097,
sentence”),
agreed-upon
126 S.Ct.
and discard the
cert.
U.S.
1021,
(2006).
C.
bargaining
important
indispens
Plea
an
has become
and now
commonplace
justice system.
legiti
able
of our criminal
It “is a
mate, accepted practice
jus
in the administration of criminal
system
advantages
tice[and t]he
rests on the
both sides receive
it;
depends
good
parties
from
and it
on the
faith of
both
carrying
reasoned, fair,
agreement
provided
out the
it is
struck —
Slater,
145,
approved by
trial
and
court.” State v.
198 N.J.
161,
(2009);
353,
Taylor,
This of all that plea bargaining: prosecuted, sensible and reasonable the State murderer, facing convicted and incarcerated and the defendant — overwhelming proofs guilt clearly compe- and with the advice of bargained tent and dedicated for and received the bene- counsel — charge similarly fit of a expo- reduced and its reduced sentence precisely system work; ought sure. That is how the it should judges simply notion that not be derailed know better than
179 agree to in a they can or cannot themselves what defendants point ironic to the put, majority’s construct is bargain. Simply every to waive each and although is entitled illogic; a defendant have,7 may constitutional, right law he or she statutory or common cannot waive one that a defendant majority now commands sentencing. right of allocution only specific right: and one words, may properly waive the although a defendant In other entirety, cannot waive that same defendant right to counsel its behalf at speak on the defendant’s right to that counsel have sentencing. That is sheer nonsense. with completely consonant one which is
The better rule —and require to on the whole —is jurisprudence waiver our any right the waiver inquiry as to whether court make satisfied, is so intelligently made. If the court voluntarily and being enforced, right is no matter which waiver should be then the waived.
Here,
admittedly
represented by counsel what
defendant was
were
proofs
against
stacked
a difficult case:
illustration,
listing,
7
certainly
By way
a defendant
not as an exhaustive
silent, see,
Knight,
right
e.g.,
may
State v.
183
to remain
waive the constitutional
"
449, 461-62,
(2005)
though
(explaining
‘the
874
that even
N.J.
A.2d 546
against
privilege
the common law and is codified
self-incrimination derives from
”
533, 549,
rules[,]’
Cook,
(quoting
A.2d
State v.
179 N.J.
847
in our statutes and
(2004)),
key question
defendant's waiver of the
“[t]he
here is whether
530
resulting
privilege [against
volun
self-incrimination] and
statements were made
right
by jury,
requires”);
tarily,
process
to trial
see
as due
or the constitutional
316,
that,
Dunne,
303,
(1991) (explaining
1144
v.
124 N.J.
590 A.2d
State
right
jury
although
trial
not have a constitutional
to waive a
"a defendant does
trial[,]”
request
apply to defendant's
insist on a bench
certain standards
Indeed,
majority
analysis
by jury).
bases its
on the constitutional
waive trial
counsel;
right
yet,
may properly
right
competent
waive the
a defendant
806, 818,
California,
entirety.
422 U.S.
95 S.Ct.
counsel in its
See Faretta v.
2532,
562,
Amendment,
2525,
(1975) (holding
which
that Sixth
45 L.Ed.2d
Amendment,
right
gives
applies
criminal defendants
to the states via Fourteenth
voluntarily
intelligently
they
proceed
elect to do
without counsel when
DuBois,
454, 467,
(2007)
so);
(explaining
Because there is no
or reasonable basis to
categorically
bargaining away
the State and a defendant from
right of
exchange
allocution at
in
for a separate plea
agreement advantage,
join
majority’s
I cannot
in the
unreasonable
Therefore,
practice.
respect
condemnation of that
in
of that
conclusion, I
respectfully
must
dissent.8
agreement
Because the
are
enforceable,
restrictions
and
one
proper
failing
need not reach the
of whether counsel was ineffective in
question
mitigation
of Battered Women’s
present proofs
defendant’s
Syndrome
generally
(2005)
B.H.,
sentence. See
State v.
III. vignettes depicting with the video majority also finds fault The internment; inapposite decisional applying life and of the victim’s jury solely capital cases—where authority relevant imposed— is to be a death sentence judge whether determines have the video should concludes majority nevertheless great portions that “have those to delete been redacted 159, 23 Ante at unduly or inflame emotions.” capacity to arouse concludes, save for majority Although the so at 394. A.3d provided] “victim-impact [be video endorsing procedure that a counsel!,]” omte at court and defense to both the trial in advance meaningful or providing it eschews 23 A .3d *48 length, sentencing courts on the guidance to the substantive 159, any victim-impact video. Ante presentation of content or A .3dat 394. 23 majority’s applying the standard— even
Let there be no doubt:
that
be redacted to delete
victim-impact statement must
that a
unduly
or inflame
great capacity to
arouse
may “have the
which
and received here
victim-impact video offered
emotions” —the
victim-impact statement of
That is because a
passes muster.
stan-
satisfy general and tried-and-true
medium must
whatever
evidence,
the victim-
admissibility of
standards
dards for the
readily meets.
impact video here
omitted)).
(citations
counsel’s failure to
Even if
women toward their abusers”
mitigation
in
in
of sentence
a Battered Women’s
rationale
advance
Syndrome
range
assistance consid
"outside the wide
of
competent
fact was
professionally
light
case[,]” Echols,
of
199 N.J. at
in
of all the circumstances
supra,
ered
omitted),
(citation and internal
marks
358,
thereby
183
is to
to deference and
during
entitled
trial is
made
determination
discretion!;.]”).
of
finding of an abuse
only on a
reversed
be
guidance
needed
evidentiary
provide
standards
core
Those
statements. As is
admissibility
victim-impact
of
to determine
offered for
any
of evidence
other item
respect
the case
competing
...
concerns
admission,
must balance
trial court
“[t]he
for the admis
gatekeeper
as the
of its discretion
in the exercise
Rosales,
549, 562,
202 N.J.
v.
State
or exclusion of evidence.”
sion
Smith,
376, 391, 730 A.2d
(2010);
N.J.
v.
158
State
998 A .2d
must
(1999)
proper
in a
case
(reiterating that “trial courts
imposition of sentence
Because the
gatekeepers”).
serve as
court, that court rules both
of the trial
solely
province
within
weight
victim-impact evidence and
admissibility of
on
“‘among the
have,
consistently
defined
will
a task
evidence
trial court. No word
responsibilities of a
and serious
most solemn
justice
requirement
be
this
will
eliminate
formula
ever
”
(2010)
283,
Blackmon,
296,
997 A.2d
202 N.J.
done.’ State v.
(1984)).
365,
Roth,
334,
For
It is worth subject court, are to limited sentencing as those decisions also Cassady, 966 A.2d 198 N.J. appellate review. State v. (2009) expected to exercise a (“Although appellate courts are the trial vigorous review for abuses discretion and close decision, an courts, reviewing a trial court’s when judgment for that of the may its appellate court not substitute (citations, editing quotation marks internal marks trial court.” context, omitted)). proponent sentencing, In as in other propounded is rele insure that the evidence of evidence should vant, and, importantly, persuasive; hopefully and most material Those no room in that calculus. personal or biases have aesthetics relevance, materiality per- comfortably familiar standards — *50 govern admissibility weight of victim-impact suasiveness — statements, regardless And, of what medium is used. as with proffer, persuasiveness other evidence by is not measured its proponent, by but proponent fact-finder. The fact that the victim-impact ultimately persuade video seeks to a sentencing judge engaged in responsibili- one “the most solemn and serious objective ties of a trial court” as an serves initial censor of the contents, video’s a result superim- achieved without the need to pose personal propriety. persuade views The need to an impartial magistrate goal; together is the with our Evidence Rules, provides guidance necessary, it all of the a threshold proponents ignore peril. at their own majority recognize
The does not precepts, electing these basic usurp gatekeeper properly instead to function resident in the sentencing application court. Because a fair of the standard the majority adopts victim-impact where redaction of a state- —one ment of required only necessary whatever medium is when may great delete that which capacity unduly “have the arouse or inflame in emotions” —should result the conclusion that admitted, victim-impact properly video shown here was and be- majority explain overarching cause the fails to how its standard is here, applied to be if not as set forth I must dissent.
IV.
Finally,
majority
allowing
the end determines that
Det.
Simmons to
in open
victim-impact
read aloud
court a
statement
already
to and
sentencing
submitted
reviewed
court is not
or,
is,
159-60,
error
even if it
the error was harmless. Ante at
majority
A.3d at 394. The
nevertheless commands that “[o]n
remand,
court
propriety
should consider anew the
making
open
of Detective Simmons’s
a statement in
court if he is
opportunity
offered the
so.”
do
Ante
Because, the decision to again, I would entrust sentencing victim-impact statement form of publish a discretion, additionally dissent. I court’s broad
V.
reasons,
respectfully
from the
foregoing
I
dissent
For the
plea agreement’s restrictions
majority’s judgment that voids “the
sentence!,]” ante at
right
argue
for a lesser
on defense counsel’s
Further,
majority’s opinion
the extent the
For affirmance —Chief RIVERA-SOTO —2.