State v. Fortin2/3/2004
to impose a harsher sentence based on a law that was not on the books at the time of the commission of the act covered by the subsequent legislation. The Ex Post Facto Clause provides assurance that "federal and state legislatures restrained from enacting arbitrary or vindictive legislation." Miller, supra, 482 U.S. at 429, 107 S.Ct. at 2451, 96 L.Ed. 2d at 359. It also ensures that legislative enactments "give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." State v. Muhammad, 145 N.J. 23, 56 (1996) (quoting Weaver, supra, 450 U.S. at 28-29, 101 S.Ct. at 964, 67 L.Ed. 2d at 23).
It is well established that a defendant may waive a constitutional right. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938); see also Colorado v. Spring, 479 U.S. 564, 572, 107 S.Ct. 851, 856, 93 L.Ed. 2d 954, 965 (1987) (noting that "a suspect may waive his Fifth Amendment privilege" against self-incrimination); Patton v. United States, 281 U.S. 276, 290, 50 S.Ct. 253, 255, 74 L.Ed. 854, 859 (1930) (holding that "a person charged with a crime punishable by imprisonment for a term of years may, consistent with the onstitution ..., waive trial by a jury"); State v. Crisafi, 128 N.J. 499, 509 (1992) ("Defendants possess not only the right to counsel, but the right to dispense with counsel and to proceed pro se."); State v. Hill, 115 N.J. 169, 173 (1989) (noting that defendant can waive constitutional protection against search and seizure through consent). In a capital case, the defendant is permitted to waive his right to a bifurcated jury, State v. Parker, 256 N.J. Super. 336, 341 (Law Div. 1992), and may plead guilty to capital murder, see, e.g., State v. Simon, 161 N.J. 416, 433-34 (1999); State v. Nelson, 155 N.J. 487, 494 (1998) (Nelson I).
We cannot accept the trial court's reasons for not honoring defendant's willingness to waive the protection of the Ex Post Facto Clause. Defendant was represented by two attorneys, one a private practitioner and the other a Deputy Public Defender, both of whom were certified criminal trial attorneys. They represented to the court that defendant wished to waive application of the Ex Post Facto Clause and, in response to the court's concerns, to waive his right to appeal that issue. Not satisfied with defendant's proffer, the court made inquiry through a representative of the Administrative Office of the Courts with a high level administrator of the Office of the Public Defender to learn whether that Office would honor defendant's waiver on appeal. The Public Defender administrator responded that his office gives "free rein" to its appellate counsel to raise all appropriate issues. Without a guarantee that its decision would be free from appellate review, the court declined to give the life-without-parole instruction to the jury.
We disapprove of the inquiry made by the court. Defendant was represented by counsel who were responsible for his case. All inquiries should have been directed to them. The court should have gone no further. Instead, the court sought and received information from an administrator with no connection to the case and then charted a course based on that irrelevant information. The decision whether to waive a constitutional right is personal to the defendant; it belongs to him, not the attorney, and certainly not to an administrative officer of the Office of the Public Defender. See State v. Dunne, 124 N.J. 303, 312 (1991) (stating that "New Jersey's consistent tradition has been that every right and privilege secured by our State Constitution belongs to each citizen, 'as a personal right'") (quoting State v. Stevens, 84 N.J.L. 561, 563 (N.J. 1913)); see also
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