Opinion
DOCKET NO. A-4422-13T3
07-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN E. KINDT, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-08-1617. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant John E. Kindt, Jr., appeals the September 11, 2013 amended order denying his post-conviction relief (PCR) petition. We affirm.
I.
The facts of this case have been described in detail in our opinion rejecting defendant's direct appeal of his convictions, State v. Kindt, No. A-3588-05 (App Div. June 4, 2009), certif. denied, 200 N.J. 473 (2009). We need only summarize the facts.
Defendant married Anne O'Connor (O'Connor), and had two children. They divorced in New Jersey in May 2000. Upon moving to New Jersey, defendant and O'Connor agreed to share physical custody of the children. After his 2000 holiday visitation, defendant was to return the children to O'Connor on December 30, and to pay her $100,000 in equitable distribution by December 31.
Instead, defendant and his new wife, Stacey Froland-Kindt (Froland), surreptitiously took the children and fled. Froland wrote her mother that O'Connor's father "runs Monmouth County," and that defendant and Froland intended to remove the children "to somewhere far enough away that [O'Connor's father's] influence will not be able to taint the judicial process." Defendant wrote his father a similar letter. They went to North Carolina, where Kindt obtained a sailboat and equipped it with nautical charts to the Bahamas and books entitled "Passages South," "Cruising with Children," "Hide your Assets and Disappear," and "How to be Invisible." On January 22, 2001, the United States Coast Guard responded to a distress call from the sailboat off the coast of North Carolina, rescued the children, and took into custody defendant, Froland, and her adult nephew, Matthew Aronson.
A Monmouth County Grand Jury charged defendant, Froland, and Aronson with: two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b); two counts of second-degree interference with custody, N.J.S.A. 2C:13-4(a); two counts of third-degree attempted interference with custody, N.J.S.A. 2C:5-1; and second-degree conspiracy to commit kidnapping and/or interference with custody, N.J.S.A. 2C:5-2. Defendant and Froland were also separately charged with fourth-degree contempt of court, N.J.S.A. 2C:29-9. Froland was separately tried and convicted of all charges except for third-degree attempted interference. See State v. Froland-Kindt, No. A-0808-12 (App. Div. July 28, 2014).
On the eve of his trial, defendant moved to represent himself so that he could "tell his story," that he was being selectively prosecuted due to the alleged influence that O'Connor's father had over the Monmouth County justice system. After a lengthy colloquy between defendant, defense counsel, and the trial court, the court granted defendant's motion to represent himself, and appointed defense counsel as standby counsel to assist defendant at trial.
On December 7, 2005, defendant was acquitted of the kidnapping charges but found guilty of the other charges. Defendant was sentenced to a total of seven years prison, which he has since served. Defendant separately appealed, and we affirmed, both his convictions and sentence. Kindt, supra, No. A-3588-05; State v. Kindt, No. A-2509-06 (App. Div. June 2, 2008), certif. denied, 196 N.J. 464 (2008).
In October 2009, defendant filed a pro se PCR petition. PCR counsel filed additional briefs. The PCR court found PCR relief unwarranted in an August 7, 2013 written opinion.
Defendant appeals, arguing:
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, IN THAT COUNSEL FAILED TO CHALLENGE THE TRIAL COURT'S INADEQUATE INQUIRY OF DEFENDANT'S WAIVER OF HIS RIGHT TO COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF COUNSELS' INEFFECTIVENESS, OR THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW NOT ADDRESSED BY THE PCR COURT. (Partially Raised Below).
II.
As the PCR court did not hold an evidentiary hearing, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to this standard of review.
To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted in State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must overcome a "strong presumption that counsel rendered reasonable professional assistance." Ibid. Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158 (alteration in original) (citation omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. The court must view the facts "'in the light most favorable to defendant.'" Ibid. (citation omitted); accord R. 3:22-10(b).
III.
Defendant claims that his defense counsel, appellate counsel, and to some extent his PCR hearing counsel were ineffective for failing to raise inadequacies in the trial court's colloquy informing defendant of the risks of self-representation.
"The Sixth Amendment of the United States Constitution and article 1, paragraph 10 of the New Jersey Constitution guarantee a criminal defendant the right to counsel at trial." State v. Crisafi, 128 N.J. 499, 508 (1992). "The corollary to the right of a criminal defendant to be represented by an attorney is the defendant's right to represent himself." State v. King, 210 N.J. 2, 16 (2012) (citing Faretta v. California, 422 U.S. 806, 814, 95 S. Ct. 2525, 2530, 45 L. Ed. 2d 562, 570 (1975)).
As "a pro se defendant will not have 'many of the traditional benefits associated with the right to counsel,' it is necessary that the accused '"knowingly and intelligently" forgo those relinquished benefits.'" State v. DuBois, 189 N.J. 454, 465-66 (2007) (quoting Faretta, supra, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581). Before a defendant can waive counsel and proceed pro se in a criminal case, the trial court must engage in "'an on-the-record inquiry of defendant by the trial court to insure that the waiver is made knowingly and voluntarily.'" Crisafi, supra, 128 N.J. at 510 (citation omitted). "The defendant 'should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open."'" Ibid. (citation omitted).
Our Supreme Court in Crisafi, and later in State v. Reddish, 181 N.J. 553 (2004), provided trial courts with a framework to determine if a defendant has knowingly and voluntarily waived his right to counsel in favor of proceeding pro se. "Taken together," Crisafi and Reddish require
the trial court to inform a defendant asserting a right to self-representation of (1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (5)
the impact that the dual role of counsel and defendant may have; (6) the reality that it would be unwise not to accept the assistance of counsel; (7) the need for an open-ended discussion so that the defendant may express an understanding in his or her own words; (8) the fact that, if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim; and (9) the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination.
[DuBois, supra, 189 N.J. at 468-69.]
Here, defendant does not dispute that the trial court generally followed this procedure and informed him of most of these factors. Cf. State v. Blazas, 432 N.J. Super. 326, 337 (App. Div. 2013) ("The trial judge did not follow this procedure"). However, defendant argues that defense counsel should have objected, because the following Crisafi/Reddish factors were omitted from the colloquy: (5) the impact that the dual role of counsel and defendant may have; (8) if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim; and (9) the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination.
We agree the record contains no specific mention by the trial court, or defense counsel, of those three factors. In DuBois, the trial court similarly failed to discuss these same three factors. DuBois, supra, 189 N.J. at 472-73. Nonetheless, our Supreme Court affirmed the conviction, stating: "Although . . . the trial court should discuss with defendant all of the necessary requirements and admonitions in one proceeding to determine whether defendant's waiver of counsel is knowing and intelligent, we do not find that shortcoming fatal." Id. at 474. "[T]he failure of the trial court to engage in a thorough exchange with defendant 'does not end our inquiry whether a defendant has waived counsel knowingly and intelligently.'" Id. at 473 (quoting Crisafi, supra, 128 N.J. at 512). The "'ultimate focus must be on the defendant's actual understanding of the waiver of counsel.'" Ibid. (citation omitted). "[I]n the exceptional case, if the record indicates that the defendant actually understood the risks of proceeding pro se, a waiver may suffice" even if the colloquy fails to mention such factors. Ibid. (quoting Crisafi, supra, 128 N.J. at 513 (affirming though the colloquy failed to inform the defendant of the charges, the sentencing alternatives, or the specific pitfalls of proceeding pro se)).
In DuBois, our Supreme Court found that the "defendant's background, his work ethic, and his unshakable determination to represent himself evidenced that he 'appreciated the risks of proceeding without counsel, and that he decided to proceed pro se with his eyes open.'" Ibid. (quoting Crisafi, supra, 128 N.J. at 513). The Court cited that the defendant "was an accountant and a college graduate," had spent time in the law library and in court, and "had more than a passing knowledge of the justice system." Id. at 473-74. The Court noted that the defendant had filed pro se motions and knew his sentencing exposure. Id. at 474.
Like DuBois, this is one of those "rare cases" in which a defendant "fully appreciated the risks of proceeding without counsel, and . . . decided to proceed as pro se with his eyes open." Crisafi, supra, 128 N.J. at 513. Defendant here demonstrated at least as good a background, work ethic, and familiarity with his case as the defendant in DuBois. In moving to proceed pro se, defendant told the trial court that he had graduated from college, and that he had operated his own business. Defendant added that he had studied a semester at Georgetown Law School, and that he had represented himself in a civil action. Defendant said that he was aware of his charges, his defenses, and his sixty-year prison exposure. Defendant pointed out that he had sat through his wife's trial on virtually the same charges, and was familiar with the proofs used against his wife, which would also likely be used against him. Defendant said that by watching that trial, he had gained enough experience with the Rules of Procedure and Rules of Evidence to represent himself. Defense counsel added that defendant was
the most informed, perhaps the most articulate, most diligent and studied client I have represented in 20 years before the criminal bar. And from my perspective, [defendant] has assisted both in motion practice, procedural and substantive decision making to the point that I feel he has far exceeded many attorneys I have practiced with before the Bar. And I don't say that in a patronizing way in any respect. [Defendant] I believe fully understands, and at times maybe understands more than I, particulars and nuances and all aspects of this case.
The trial court found that defendant knows "the law. He understands what he's doing. He understands the pitfalls." "The trial court was in the best position to evaluate defendant's understanding of what it meant to represent himself and whether defendant's decision to proceed pro se was knowing and intelligent." DuBois, supra, 189 N.J. at 475. Moreover, as in DuBois, "defendant demonstrated his knowledge of courtroom procedures" during trial, and "standby counsel assisted" defendant throughout the trial. Id. at 474.
Moreover, defendant repeatedly expressed his unshakeable determination to represent himself despite the risks. He affirmed that he understood the risks of representing himself, and that his "purpose to represent [himself] would be to tell the whole story" and ask for jury nullification:
DEFENDANT: And I realize that [it's] going to be at your grace to allow me to tell the whole story. . . . I'm not a lawyer. I appreciate that praise, but the truth of it is I was a bad law student. I think I'd make a terrible lawyer, a terrible lawyer. But if I can tell the story and if you'll allow me to tell the story to the jury, I believe that they will be just like the rest of the people that I've told the story to outside of this, outside of the people in this building, that they will intuitively know that this is wrong. This is dead wrong. And that I am not guilty. But I must be able to tell the story. If I'm limited in telling the story, then it will be at my great peril. And I understand that.
THE COURT: It sounds to me that you may be using a defense that's known as jury nullification which is technically something that's not allowed by the law, but it's something that sometimes may or may not happen. That is that [sic] you seem to be saying, — I don't know if this is what you're saying, that you may be "technically guilty, but not morally guilty." I think that's what you're saying. Maybe I'm not hearing you correctly. Do you understand the peril of that? That is, that a jury may emotionally agree with you, but they are bound to follow the law, and they will be sworn to follow the law. And even if they might emotionally agree with you, they may not just nullify the la[w], they'll follow it, and they might convict you anyway. Do you understand that?
DEFENDANT: I believe that they will have to nullify on certain of my charges.
THE COURT: That's what I thought. That's what I thought you were trying to do. And do you understand that that's, — well, first of all, that's not legally allowed. It's one thing to talk to people outside of the courtroom and just bounce it off them and say what do you think about this, and you get an opinion from them. It's quite another thing when . . . 12 [jurors] will ultimately deliberate, who have been sworn, and they're taking an oath on the Bible, to uphold the law and to follow the law as I give it to them. That's what I'm going to have to tell them. And they're going to be sworn to follow that law. And they are going to agree to follow it whether they like it or not. That's something I think you've got to understand.
DEFENDANT: I'm going to tell them that if they see that there are individuals involved in this process that did not follow the law, and in fact, used the law for their own personal gratification, that they cannot morally convict me.
THE COURT: . . . . Do you understand the pitfalls of that? That's a very dicey, so to speak, and very dangerous defense. That's what I want you to understand.
DEFENDANT: I think that if you allow me to tell the story that they will have no choice but to acquit me.
Defendant ignored the trial court's repeated warnings of the peril of such a defense strategy, and the trial court's blunt advice that it was "very foolish," "extremely unwise," and "very unwise of you to represent yourself." Defendant still insisted that he wished to "tell his story" of how O'Connor's father's alleged influence over Monmouth County had resulted in a selective prosecution. Because defendant clearly was determined to represent himself, mention of the omitted Crisafi/Reddish factors would not have changed his mind.
In particular, defendant's determination to tell his story shows it would not have mattered if the trial court had provided the specific Crisafi/Reddish warning regarding his Fifth Amendment right to remain silent. Defendant's argument ignores that his admitted purpose for seeking to represent himself was his desire to "tell the whole story" of why he took his children out of the jurisdiction. Defendant's plan to tell his story necessarily required that he admit to at least interfering with custody by removing the children from New Jersey despite O'Connor's custody and parenting time authorized by the Monmouth County courts, allegedly under O'Connor's father's influence. See State v. Froland, 193 N.J. 186, 200 (2007). As the trial court explained in the colloquy:
THE COURT: . . . Do you understand you're going to try and get in front of a jury and say, well maybe I did A, B and C, but I shouldn't be convicted of first degree because of X, Y and Z? It seems to me to be what you are saying.
DEFENDANT: Yes . . . .
THE COURT: Well, . . . at your trial, the trial isn't about everybody else. It's about you. And it's about what you allegedly did.
DEFENDANT: That's right.
THE COURT: And that's what the state is going to try and prove.
The trial court emphasized to defendant "the peril that you're putting yourself in by trying to argue what you're saying to defend yourself against a violation of the law." Moreover, the court informed defendant that if he took the witness stand he would "have to present testimony in the question and answer form that was done at [his] wife's trial."
Further, during the trial, the court explained that defendant had a right to remain silent, and that he could choose not to testify. Nonetheless, defendant insisted on testifying to tell the "whole story."
Thus, the record is replete with the trial court's warnings to defendant of the risks of self-representation, and evidences defendant's "unshakable determination" to represent himself despite those risks. DuBois, supra, 189 N.J. at 473. Defendant has not claimed or certified that he would not have represented himself had he been warned by the trial court of the same three factors omitted in DuBois. Like the defendant in DuBois, defendant cannot show prejudice.
If raised on direct appeal, "failure to address all of the Crisafi factors" can be "harmless beyond a reasonable doubt." Id. at 475. Here, defendant has raised this claim by asserting ineffectiveness of counsel, which requires him to "'show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Parker, supra, 212 N.J. at 280 (citation omitted). Defendant has not shown a reasonable probability that if the trial court had addressed the omitted Crisafi factors, the result of the colloquy would have been different and he would not have chosen to represent himself. Therefore, defendant cannot show prejudice from the lack of objection by defense counsel during the colloquy, appellate counsel's choice not to challenge the colloquy on direct appeal, or PCR counsel's allegedly inadequate raising of the issue on PCR review.
We do not analyze whether the result of the trial would have been different, because both "the denial of counsel" and "the denial of the right of self-representation" are "'structural defects'" not subject to such analysis. See United States v. Gonzalez-Lopez, 548 U.S. 140, 148-49, 126 S. Ct. 2557, 2564, 165 L. Ed. 2d 409, 419-20 (2006); see also State v. Purnell, 161 N.J. 44, 61 (1999). --------
In any event, PCR counsel did raise trial and appellate counsels' failure to challenge the colloquy. In his brief and in oral argument, PCR counsel specifically argued that "at no time during [the colloquy] did anybody mention to [defendant] about his Fifth Amendment right to remain silent" and his right against self-incrimination. PCR counsel argued that the court failed to advise defendant that his intent to tell the "whole story" would necessarily have him admit much of the charged conduct. Thus, defendant cannot show his PCR petition would have been granted had PCR counsel raised the two omitted Crisafi/Reddish factors, as we have found the omission of all three factors was not prejudicial.
Defendant also argues that the PCR court's opinion did not clearly address defendant's waiver of the right to counsel and that, as a result, we must remand to the PCR court for findings of fact and conclusions of law. The PCR court stated that the trial judge "sufficiently advised Petitioner of the risks of proceeding pro se, which petitioner understood," but did not otherwise address the claim in its opinion. However, any deficiency in the PCR court's opinion does not require a remand. There was no evidentiary hearing requiring fact findings, and the issue is one of law. Our standard of review is de novo and we have rejected defendant's ineffectiveness claims.
As defendant has failed to show a prima facie case of ineffective assistance of counsel, an evidentiary hearing was unnecessary. See Marshall, supra, 148 N.J. at 158.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION