Judge: Accused Butler sex offender can represent himself

A former Vernon carpenter whose conviction for sexually assaulting a woman outside a Butler bagel shop in 2007 was reversed can represent himself at a retrial in Morris County, a Superior Court judge ruled Thursday.

Andrew W. Pena has sought to represent himself at a new trial since he was transferred last summer from state prison to the Morris County jail. On Thursday, Superior Court Judge Robert Gilson, sitting in Morristown, granted Pena's request after questioning him at length on whether he understood the consequences of defending himself and the necessity of following judicial orders at trial.

"I've learned things I can do and can't do" at the first trial, Pena told the judge.

The judge told Pena that he also will have a "stand-by" lawyer appointed for him from the Office of the Public Defender. While Pena himself will be able to call and cross-examine witnesses at trial, the stand-by lawyer would be used if needed but specifically to cross-examine the victim, who was 19 years old when she allegedly was sexually attacked by Pena on Jan. 28, 2007.

Morris County Assistant Prosecutor Christopher Schellhorn told Gilson the state has no objection to Pena, 47, representing himself but wanted a comprehensive questioning undertaken of Pena to make sure he understood the ramifications. Schellhorn said the state also would object to Pena cross-examining the alleged victim. Pena himself blurted out that he understood the "sensitivity" of doing that and wouldn't attempt to question his accuser at trial.

The judge warned Pena that he may not be happy with the outcome of a retrial but couldn't try to appeal based on bad advice from the standby attorney since he has voluntarily waived his right to a lawyer.

Pena, who has claimed that original prosecutors on the case committed misconduct, kept trying to discuss details of evidence he believed was favorable to him yet was kept out of the first trial. The judge repeatedly reminded him he was not deciding evidence issues at that time.

"I'm not an attorney. I swing a hammer for a living but no one knows this case better than I do," Pena said. Represented in court Thursday by county assistant Public Defender Elizabeth Cervenak, Pena said he wants to defend himself because his life is at stake.

"It's not the prosecutor or a forced-upon public defender who would suffer. This is a life sentence for me judge," Pena said.

A Morris County jury in 2009 found Pena guilty of sexually assaulting a 19-year-old woman outside G&A Bagels on Route 23 in Butler on Jan. 28, 2007. He was sentenced in December 2009 to 27 years and nine months in prison but in December a state appeals court reversed his conviction due to errors made by the trial court judge. The direct evidence used in the first trial was not a reason for the reversal.

Pena is no longer convicted but he remains charged with aggravated sexual assault, burglary, criminal sexual contact and sexual assault. Allegedly sweeping snow from the front of the shop though he wasn't an employee, Pena approached the woman as she waited in a car for her friends to emerge from the bagel shop. The victim said he asked her to move the vehicle to the rear of the store to avoid blocking other cars.

The woman contends that after she moved the car, she was approached by a person she identified as Pena and sexually assaulted. Pena at first denied to police that he was at the shop but then said he was and that his fingerprint was on her car because he touched it while walking in the snowy parking lot. He has maintained he did not assault the woman.

No date has been set for a retrial.

Staff Writer Peggy Wright: 973-267-1142; pwright@njpressmedia.com