STATE OF NEW JERSEY VS. MAURICE R. SANDERS (14-02-0059, HUNTERDON COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2762-18T4
                                                                   A-2764-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MAURICE R. SANDERS,

     Defendant-Appellant.
__________________________

                   Submitted September 30, 2020 – Decided November 18, 2020

                   Before Judges Gilson and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hunterdon County, Indictment No. 14-02-
                   0059.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Andrew R. Burroughs, Designated Counsel,
                   on the briefs).

                   Michael J. Williams, Acting Hunterdon County
                   Prosecutor, attorney for respondent (Jeffrey L.
                   Weinstein, Acting Assistant Prosecutor/Special Deputy
                   Attorney General, of counsel and on the brief).
PER CURIAM

        In these consolidated appeals, we consider two aspects of the trial court's

order entered following defendant Maurice R. Sanders's petition for

postconviction relief (PCR): allowing defendant to file a direct appeal pursuant

to State v. Perkins, 

449 N.J. Super. 309

, 313 (App. Div. 2017), after finding

defendant's appellate counsel was ineffective,1 and denying that part of his

petition claiming ineffective assistance of trial counsel.      On direct appeal,

defendant argues:

              POINT I

              THE TRIAL COURT ERRED WHEN IT DENIED
              THE ENTRAPMENT MOTION.

              POINT II

              THE TRIAL COURT ERRED WHEN IT FAILED TO
              SUA SPONTE ORDER A MISTRIAL WHEN TRIAL
              COUNSEL CONCEDED HIS CLIENT'S GUILT
              CONTRARY TO MCCOY V. LOUISIANA, 138 S.
              CT. 1500 (2018).

              POINT III

              THE TRIAL COURT'S CUMULATIVE ERRORS
              DENIED [DEFENDANT] A FAIR AND RELIABLE
              TRIAL.



1
    We granted defendant's motion to file his notice of appeal as within time.
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                                         2
As to the denial of his PCR petition without an evidentiary hearing, he contends:

            POINT I

            AS [DEFENDANT] HAS ESTABLISHED A PRIMA
            FACIE CASE OF INEFFECTIVE ASSISTANCE OF
            TRIAL COUNSEL, THE PCR COURT ERRED
            WHEN IT DENIED HIS PETITION FOR [PCR].

                  (1)   Trial Counsel's Failure to Submit a Timely
                        Notice of a Duress Defense Irreparably
                        Crippled [Defendant's] Right to a
                        Complete Defense.

                  (2)   Trial Counsel's Closing Remarks Undercut
                        his Client's Claim of Innocence.

                  (3)   Trial Counsel Failed to Investigate
                        Whether [Codefendants] Martin and
                        McNeil Could Provide Corroborating
                        Testimony to a Duress Defense.

                  (4)   Trial Counsel's Cumulative Errors Denied
                        his Client Effective Legal Representation.

            POINT II

            AS THERE WAS A GENUINE ISSUE OF
            MATERIAL FACT IN DISPUTE, AN EVIDENTIARY
            HEARING WAS REQUIRED .

Although we determine the record does not support any claim of due process

entrapment, because the trial court did not allow the jury to determine the issue

of statutory entrapment, we are compelled to reverse and remand for a new trial.



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                                       3
      Turning first to defendant's direct appeal, defendant argues the trial court

erred when it denied his motion to dismiss the indictment because his

convictions after jury trial of third-degree conspiracy to distribute a controlled

dangerous substance, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(3) (count one),

and third-degree distribution of a controlled dangerous substance, N.J.S.A.

2C:35-5(b)(3) (count two), were the result of police entrapment based on "text

messages from the police . . . which induced him with offers of money and

transportation." We review the trial court's determination of this question of law

de novo, see State v. Florez, 

134 N.J. 570

, 584 (1994) (holding the question of

whether due process entrapment occurred is a legal question), and conclude

those texts belie defendant's contention as to due process entrapment.

      Due process entrapment occurs when police engage in conduct that is

"patently wrongful in that it constitutes an abuse of lawful power, perverts the

proper role of government, and offends principles of fundamental fairness."

State v. Johnson, 

127 N.J. 458

, 473 (1992). Although the burden of disproving

the defense of due process entrapment by clear and convincing evidence falls

upon the State, defendant must produce "some evidence of due process

entrapment before [that] burden shifts to the State." 

Florez, 134 N.J. at 590

.

      Relevant factors to be considered by a court in taking "a comprehensive


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                                        4
approach encompassing careful scrutiny of the nature of government conduct in

light of all the surrounding circumstances 'and in the context of proper law

enforcement objectives,'" 

Johnson, 127 N.J. at 474

, include:

             (1) whether the government or the defendant was
             primarily responsible for creating and planning the
             crime, (2) whether the government or the defendant
             primarily controlled and directed the commission of the
             crime, (3) whether objectively viewed the methods used
             by the government to involve the defendant in the
             commission of the crime were unreasonable, and (4)
             whether the government had a legitimate law
             enforcement purpose in bringing about the crime.

             [Ibid.]

       The text messages to which defendant refers began when an undercover

Flemington Borough police officer called a cell phone number belonging to an

individual known to police only as Amy in an attempt to purchase heroin.

According to the officer's trial testimony, the texts culminated in the delivery of

heroin to the officer when codefendant Amy Miller drove codefendant Craig

McNeil2 and defendant to a motel. Defendant exited the vehicle and approached

the officer and, after a brief conversation, returned to the vehicle and appeared

to talk to McNeil. Defendant reapproached the officer and, after moving to a

less conspicuous location, removed a plastic bag containing bricks of heroin


2
    Both codefendants pleaded guilty and were not tried with defendant.
                                                                           A-2762-18T4
                                        5
from his pocket and exchanged the bag for $675 tendered by the officer. All

three defendants were taken into custody when assisting officers stopped their

vehicle shortly after they left the officer at the motel.

      Before the texts began, the officer, using the pseudonym Bill, called

Amy's telephone number and said Casey had given him the number. When the

officer told the female who answered the call that Casey "said I could get from

you," the woman replied, "[o]h, no, I don't do that [anymore]," and hung up; but

not before the officer heard her tell someone that Casey had given her out

number.3 The officer received a text "a minute or two later" from the same

phone number asking "who is this?" The officer again identified himself as Bill,

and texted that he "used to hang [with] Casey," who told him "to hit you up if I

need."

      When the texter asked the officer if he drove, the officer replied he did

not, but could "throw you something for the trip." In a series of subsequent

texts, the texter asked "so what are you talking about?" The officer replied he



3
  The only appellate record of the recorded conversation and text messages are
the officer's testimony about them. The quotes are the words used by the officer
when he related the conversation and texts during his trial testimony. We do not
know if they are direct quotes, but defendant references the transcript of that
testimony in his statement of facts about the communications that led up to the
heroin distribution.
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                                         6
"was looking to see what he could do for three with travel," meaning he was

inquiring about the cost of three bricks of heroin, including the costs of delivery .

The texter inquired "three what," and when the officer replied, "full," the texter

asked "what's three fulls (sic), never heard of that?" After the officer clarified

he was seeking bricks, the texter responded "if you get me a ride." The officer

replied, "if I can get you a ride, I'd get me a ride."

      Nine minutes elapsed without communication before the officer texted,

"so that's a no." The texter replied, "I don't know you like that, bro, you've got

to be more careful." After a brief discussion regarding the texter's inquiry about

"side work" the officer could provide, the texter said, "get a ride and I can make

it happen."

      The text discussion continued, and the texter eventually asked, "what kind

of bread you got?" The officer asked "what do you want for them plus travel?"

The texter responded "three breezies look like what?" The officer replied, "$225

each, includes," meaning $225 per brick including travel expenses.

      Twelve minutes elapsed without a response. The officer texted, "can you

make it happen, that's a good price." Another fifteen minutes passed without a

response. The officer texted, "thanks, maybe next time."




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                                          7
      Two minutes later, the texter asked, "where you live?" The officer told

the texter he was "crashing" at the Siesta Motel on Route 22.          The texter

confirmed he knew the location and, when asked if he was coming, the texter

replied affirmatively and that he "was working on the ride, it's definite. I can't

be BS'ing." The texter then asked, "[i]f I can't get three what do you want?"

The officer replied he would take two. The texter asked if the officer was

amenable to going with him to pick up the heroin. The officer said he couldn't

leave but could walk to a location from the Siesta Motel; and said, "I'll hit you

up again when you're good for three, it sounds like it's not going to happen

tonight." The texter replied at 10:16 p.m. with the last message of the three-

plus-hour exchange:     "still working on it, give me [thirty] minutes, if not

tomorrow definitely."

      At 10:28 the next morning, the officer texted, "yo[,] you good for today?"

The texter replied: "working on it now." The texter told the officer he could

"be there by 2[:00] p.m." When asked what he had, the texter confirmed he had

three bricks of heroin and that the officer was still at the Siesta Motel. He told

the officer, "I'll come out to you at two . . . . [Y]ou gonna meet me there with

how much[?]" When the officer replied "225 times 3," the texter answered,

"exactly. Just making sure, man, you ain't on no BS with those, the people, you


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                                        8
know." After texts about the motel's location, the texter told the officer, "yo,

don't go [nowhere]."

      Nothing in these texts evidence any of the hallmarks of due process

entrapment that can unduly influence the resistance of an ordinary citizen:

"Tactics like heavy-handed pressure; repetitive and persistent solicitation, or

threats or other forms of coercion; the use of false and deceitful appeals to such

humanitarian instincts as sympathy, friendship, and personal need[.]" 

Johnson, 127 N.J. at 478

.

      The texter had many opportunities to walk away from the officer's request

for heroin. The texter did not have to text back after Amy terminated the

telephone call. The texter did not have to reinitiate communications after the

officer asked, "so that's a no"; or after he texted, "thanks, maybe next time"; or

after he said, "looks like it's not going to happen tonight." Instead, the texter

doggedly kept the transaction alive, telling the officer that he was "working on

a ride" but the transaction was "definite"; and, on the day of the distribution,

that he was still "working on it."

      The subterfuge used by the officer did not run counter to due process

principles. In State v. Davis, 

390 N.J. Super. 573

(App. Div. 2007), we approved

of the police practice of creating persona to conduct undercover operations,


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                                        9
holding "'decoys, traps, and deceptions properly may be used to apprehend those

engaged in crime or to obtain evidence of the commission of crime.'"

Id. at 593

(quoting State v. Rockholt, 

96 N.J. 570

, 575 (1984)).

      It is also evident, though the officer initiated the contact, he did not direct

and control the enterprise. 

Johnson, 127 N.J. at 478

. Negotiations included

transportation for delivery. It is also evident the texter had to obtain the drugs ,

inquiring if "Bill" would go with him to pick up the heroin and asking about

supplying only two bricks instead of three. And, the texter had to arrange for

transportation to the Siesta Motel. The texter also picked the time of the meeting

and told the officer he would meet him at the motel, and "don't go [nowhere]."

We also note the context and tenor of the conversation evidences the texter's

familiarity with the drug trade, notwithstanding the obvious lack of inventory

and mode of distribution.

      Nor was it objectively unreasonable to involve the texter in the purchase

of heroin.   See

id. at 474.

     Obviously, Amy had been involved in drug

distribution; when the officer said why he was calling, she told him she did not

"do that anymore," connoting she had done so in the past. The return text, made

soon after the phone call, also established the intent of the texter to distribute

the drugs. And, the "legitimate law enforcement purpose in bringing about the


                                                                             A-2762-18T4
                                        10
crime," ibid., is obvious.    See State v. Talbot, 

71 N.J. 160

, 168 (1976)

("Government properly may use artifice to trap unwary criminals, particularly

in its efforts to stamp out drug traffic."). In short, the undercover detective's

conduct was not "'so egregious' as to offend due process." 

Johnson, 127 N.J. at 471

. As in Johnson, there was no due process entrapment even though law

enforcement developed the plan to purchase heroin.

Id. at 461, 483.

"The police

conduct was 'an invitation, not a seduction.'"

Id. at 479

(quoting People v.

Paccione, 

417 N.Y.S.2d 850

, 852 (Nassau Cnty. Ct.1979)).

      We observe the trial court did not perform any required analysis in

denying defendant's motion to dismiss, opining

            [t]here is absolutely no evidence of entrapment on that
            statement [which defendant gave to police after his
            arrest]. None. He said he got a text. And he said, it
            was very clear, that it was his idea to get the drugs so
            he could make money.
                   So insofar as entrapment was concerned, that was
            totally negated by the defendant on that tape. No
            evidence of entrapment.
                   In fact, he said, "[l]ook, I'm an addict." He said
            it. "I'm an addict and I need money."
                   And this particular transaction was done solely
            for the purpose of getting money so he could support
            his habit.
                   There was absolutely no evidence of entrapment
            on there. None.




                                                                         A-2762-18T4
                                      11
      We do not countenance the trial court's failure to apply the law to the facts

it discerned. R. 1:7-4(a). But we review orders, not decisions. Do-Wop Corp.

v. City of Rahway, 

168 N.J. 191

, 199 (2001) ("[I]t is well-settled that appeals

are taken from orders and judgments and not from opinions, oral decisions,

informal written decisions, or reasons given for the ultimate conclusion.") . We

agree defendant failed to proffer evidence of due process entrapment.

      That does not, however, put an end to the issue. The trial court precluded

defense counsel from developing the entrapment argument at the motion

hearing. When counsel began his argument, stating "my client believes he was

entrapped and he wanted to . . . ," the court interrupted, and the following

colloquy ensued:

            THE COURT: Let me stop you right there.

            [DEFENSE COUNSEL]: Okay.

            THE COURT: There is absolutely no evidence of
            entrapment on that statement. None. He said he got a
            text. And he said, it was very clear, that it was his idea
            to get the drugs so he could make money.
                   So insofar as entrapment was concerned, that was
            totally negated by the defendant on that tape. No
            evidence of entrapment.
                   In fact, he said, "Look, I'm an addict." He said it.
            "I'm an addict and I need money."
                   And this particular transaction was done solely
            for the purpose of getting money so he could support
            his habit.

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                                       12
      There was absolutely no evidence of entrapment
      on there. None.
      But - -

[DEFENSE COUNSEL]: Well, his contention is that
he received texts from the police and that he was
induced with offers of money and even offers of travel.
      He also indicates that he didn't even have a
driver's license and he ended up at this Siesta Motel, so,
--

THE COURT: But that –

[DEFENSE COUNSEL]: But for all of that he –

THE COURT: But that – I don't mean to interrupt you
but that statement negates anything concerning an
entrapment.
       He said – right at the outset he said – and these
were almost his words, he said some guy called, he
needed drugs. "I ripped somebody off to support my
habit."
       He said he is an addict. That's what he said. That
was about as clear as you can get insofar as the
distribution was concerned.
       I do agree with you that early on he was kind of
negating any kind of a conspiracy, he kind of
minimized that insofar as the role of anybody else is
concerned except at the very end where he said that
[codefendant McNeil] actually was the one that got the
drugs, gave him the drugs so he could pass them along
to this person and get the money.
       But that whole idea of entrapment and all, that
that – as far as I am concerned, that statement negates
any defense of entrapment.
       What were the other items?



                                                             A-2762-18T4
                           13
Counsel continued with his motion to reveal a confidential informant's identity.

As such, the record is not clear if defendant's basis for the entrapment defense

was due process entrapment or, as he argues in his merits brief, statutory

entrapment.

      Statutory entrapment occurs when a law enforcement agent, "for the

purpose of obtaining evidence of the commission of an offense, . . . induces or

encourages and, as a direct result, causes" a defendant to commit an offense "by

. . . [e]mploying methods of persuasion or inducement which create a substantial

risk that such an offense will be committed by persons other than those who are

ready to commit it."4 N.J.S.A. 2C:2-12(a)(2). As our Supreme Court explained,

               [t]he statutory defense has both subjective and
              objective elements. State v. Rockholt, 

96 N.J. 570

, 579
              (1984). Subjective entrapment occurs when the police
              implant a criminal plan into the mind of an innocent
              person who would not ordinarily have committed the
              offense.

Id. at 576.

Objective entrapment takes place
              when the police conduct causes an average citizen to
              commit a crime or when the conduct is so egregious as
              to "impugn the integrity of the court that permits a
              conviction." State v. Fogarty, 

128 N.J. 59

, 65 (1992).

              

[Florez, 134 N.J. at 583-84

.]



4
  Defendant does not allege any law enforcement agent falsely represented to
him that the heroin sale was not prohibited, the other mode of entrapment
proscribed by N.J.S.A. 2C:2-12(a)(1).
                                                                        A-2762-18T4
                                        14
Unlike, due process entrapment, statutory entrapment is an affirmative defense,

which the defendant must prove by a preponderance of the evidence.

Id. at 590;

see also N.J.S.A. 2C:2-12(b). Whether a defendant meets that burden is an issue

to be decided by a jury. 

Florez, 134 N.J. at 590

.

      After improperly foreclosing any discussion about defendant's entrapment

defense during the motion hearing, effectively cutting off any further

development of that issue, the trial court never presented that defense for the

jury's consideration.    Although there is no evidence of egregious police

procedure establishing due process entrapment, the Legislature specifically

provided "[t]he issue of [statutory] entrapment shall be tried by the trier of fact ,"

not by the trial court. N.J.S.A. 2C:2-12(b). Notwithstanding the admissions

made by defendant to police that the trial court noted, and his trial testimony

that he did not take part in the texts, there was evidence the trier of fact may

have considered in determining whether defendant met his burden with regard

to statutory entrapment. The trial court's dismissal of that defense kept that issue

from the jury and deprived defendant of a fair trial. See State v. Powell, 

84 N.J. 305

, 317 (1980) ("A defendant in a criminal case is entitled to have the jury

consider any legally recognized defense theory which has some foundation in

the evidence, however tenuous . . . . Very slight evidence on a theory of defense


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                                        15
will justify the giving of an instruction." (quoting People v. Dortch, 

314 N.E.2d 324

, 325-26 (Ill. App. Ct. 1974))); see also State v. Gentry, 

439 N.J. Super. 57

,

67 (2015) ("Where there is sufficient evidence to warrant a self-defense charge,

failure to instruct the jury that self-defense is a complete justification for

manslaughter offenses as well as for murder constitutes plain error."). As such,

we are compelled to reverse.

      Our decision obviates the need to consider defendant's remaining

arguments in both appeals. We add the following comments about defendant's

remaining direct-appeal arguments for the sake completeness.

      There is no merit to defendant's contention the trial court erred if failing

to sua sponte grant a mistrial during defense counsel's summation, a decision

"entrusted to the sound discretion of the trial court, which should grant a mistrial

only to prevent an obvious failure of justice." State v. Harvey, 

151 N.J. 117

,

205 (1997); see also State v. Montgomery, 

427 N.J. Super. 403

, 406-07 (App.

Div. 2012). First, defendant's decision to voice, in open court, his displeasure

about counsel's decision to tell the jury defendant was a drug user, instead of

requesting a private consultation with counsel, was not a basis for a mistrial.

Id. at 407.

Such misconduct cannot be rewarded.




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                                        16
      We also reject defendant's argument that a mistrial was required under

McCoy v. Louisiana, 584 U.S. ___, 

138 S. Ct. 1500

(2018).              There, the

defendant's trial counsel believed that the evidence of defendant's triple murder

of family members was "overwhelming," and the best strategy would be to

concede guilt during the guilt phase of the trial in order to persuade the jury not

to impose a death sentence in the penalty phase of the trial.

Id. at 1503.

Defendant "vociferously" objected, insisted he was innocent and objected to any

admission of guilt.

Id. at 1505.

Over defendant's objections, the trial court

allowed defense counsel to tell the jury that the defendant committed the three

murders.

Ibid. The United States

Supreme Court reversed and ordered a new trial

, id. at 1512,

holding the Sixth Amendment to the federal Constitution guaranteed the

right of a competent defendant to assert that he or she was innocent: "We hold

that a defendant has the right to insist that counsel refrain from admitting guilt,

even when counsel's experience-based view is that confessing guilt offers the

defendant the best chance to avoid the death penalty."

Id. at 1505.

"[I]t is the

defendant's prerogative, not counsel's, to decide on the objective of his defense:

to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain




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                                       17
his innocence, leaving it to the State to prove his guilt beyond a reasonable

doubt."

Ibid. In contrast, defendant’s

counsel had to offer an explanation for defendant's

statement to the police where he not only admitted drug use, but said he texted

with the officer, obtained the heroin from a third party and sold the heroin to the

officer "to support [his] habit"; and his trial testimony that he delivered the

drugs—knowing it was heroin—to the officer, collected $675 from the officer,

brought the money back to the car, gave $475 to codefendant McNeil and kept

$200 on his person.5 That defendant objected to defense counsel's strategy in

handling those issues is a far cry from the defendant's objection to his counsel's

actions in McCoy. The trial court did not err when it did not sua sponte grant a

mistrial.




5
  During his trial testimony, defendant denied he had participated in any texting
with the officer or that he knew there was heroin in the vehicle prior to arriving
at the motel. He also started to explain that McNeil brandished a knife and
threatened to kill Amy after they argued about money and drugs, in an attempt
to support a duress defense; but that testimony was interrupted by the State's
objection that defendant did not give notice of that defense. See R. 3:12-1.
Nevertheless, defendant later testified he delivered the drugs "before things g[o]t
violent."
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                                       18
      We also briefly comment on defendant's PCR claims because some of

those issues may arise after remand. If we reached those issues, we would have

remanded some of them for an evidentiary hearing.

      Defendant attempted to establish he was forced to deliver the drugs in

order to protect Miller from McNeil. It is evident from the sidebar discussion

following the State's objection to defendant's testimony, and from the questions

posed by defense counsel, that counsel knew defendant's intentions regarding

the duress defense which was available to him if he delivered the heroin

"because he was coerced to do so by the use of, or a threat to use, unlawful force

against . . . the person of another, which a person of reasonable firmness in his

situation would have been unable to resist." N.J.S.A. 2C:2-9(a).

      Those facts establish a prima facie case, R. 3:22-10(b); State v. Preciose,

129 N.J. 451

, 462 (1992), requiring an evidentiary hearing to ascertain why

counsel did not file notice of the defense, foreclosing defendant's testimony.

The record is barren of any discussion counsel and defendant had about the

defense or defendant's testimony about the facts buttressing that defense.

      That evidentiary hearing was necessary to discover whether defendant

discussed and agreed to the trial strategy counsel implemented during his

summation. Our analysis of this issue in the context of whether the trial court


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                                       19
erred in failing to sua sponte declare a mistrial did not address defendant's

ineffective assistance of counsel argument. We fully realize counsel was faced

with the thorny task of reconciling defendant's statement with his divergent trial

testimony. But without an evidentiary hearing, we are unable to determine why

counsel chose his ultimate tack or whether defendant consented. See State v.

Castagna,187 N.J. 293, 315-16 (2006).

      That hearing is no longer necessary, but the issues serve as a caution that

should prompt counsel to fully discuss the trial issues with defendant prior to

any future proceedings and take steps to advance any sound strategy.

      Reversed and remanded. We do not retain jurisdiction.




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