State v. Fortin2/3/2004
Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 2708-10, 97 L.Ed. 2d 37, 46-47 (1987) (holding that constitutional right to testify on one's own behalf belongs to defendant personally); Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed. 2d 562, 572 (1975) (noting that Sixth Amendment grants accused personal right to waive constitutional right to counsel in favor of self representation). Indeed, an attorney is ethically bound to "abide by a client's decisions concerning the objectives of representation." Model Rules of Prof'l Conduct R. 1.2(a) (2003).
There was no need for the court to extract from defendant a waiver of a right to appeal from his waiver of the ex post facto bar. So long as the waiver procedure demonstrates that a defendant's decision was knowing, intelligent, and voluntary, the waiver is impervious to challenge on appeal. Koedatich II, supra, 112 N.J. at 328-29. A waiver is valid and binding on a defendant whenever, under the totality of the circumstances, it is given freely and with full knowledge of the nature of the right abandoned and the consequences of abandoning it. Spring, supra, 479 U.S. at 571-75, 107 S.Ct. at 856-58, 93 L.Ed. 2d at 964-66; Koedatich II, supra, 112 N.J. at 328-29. If the ex post facto waiver procedure were not constitutionally permissible, then even a waiver of the right of appeal likely would have had little validity. Additionally, the court should not have been concerned with whether the Commissioner of Corrections would have abided by the imposition of a life-without-parole sentence. The Commissioner cannot defy a sentence that is lawfully imposed. The court should have been concerned only with a proper interpretation of N.J.S.A. 2C:11-3b(4) and with following the appropriate constitutional principles.
New Jersey trial courts have accepted a capital defendant's offer to waive his ex post facto right to challenge statutes mandating life imprisonment without parole. See, e.g., Timmendequas I, supra, 161 N.J. at 637 (noting capital defendant waived ex post facto challenge to N.J.S.A. 2C:11-3b(3), which mandates life without parole for defendants convicted of murdering child less than fourteen-years-old in course of sexual assault); State v. Nelson, 173 N.J. 417, 433-34, 482 (2002) (Nelson II) (illustrating defendant's waiver of ex post facto challenge to application of N.J.S.A. 2C:11-3b(2), which mandates life without parole for conviction of murdering police officer). Other jurisdictions also have allowed defendants to waive eX post facto challenges to the application of life imprisonment without the possibility of parole sentencing options that took effect after the commission of a capital murder. See, e.g., Furnish v. Commonwealth, 95 S.W.3d 34, 50-51 (Ky. 2002) (holding reversible error not to instruct jury of sentencing option of life without parole in case of defendant "'willing to make a knowing, intelligent and voluntar y waiver of any right to attack this statute as a violation of the ex post facto prohibition of the U.S. and Kentucky Constitutions'") (citation omitted), cert. denied, ___ U.S. ___, 124 S.Ct. 115, 72 U.S.L.W. 3238 (Oct. 6, 2003); Willie v. State, 738 So. 2d 217, 220 (Miss. 1999) (holding that on remand for resentencing "jury should be instructed on all three options available under the amended statute" and if defendant "agrees to a sentence of life in prison without parole, the trial judge should take care to ascertain that [defendant] has validly waived his ex post facto rights 23af before accepting the plea agreement"); Wade v. State, 825 P.2d 1357, 1363 (Okla. Crim. App. 1992) (reversing death sentence because trial court erred in refusing defendant's request to instruct jury based on sentencing scheme e
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