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State v. Fried

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 12, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEON FRIED, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. 96-10-2392.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 20, 2007

Before Judges Wefing and Weissbard.

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was indicted in 1997 for one count of theft of services, N.J.S.A. 2C:20-8; one count of theft by failing to make required disposition, N.J.S.A. 2C:20-9; and two counts of issuing bad checks, N.J.S.A. 2C:21-5. Defendant's trial commenced in January, 1999. Although defendant had been represented by counsel throughout all of the pretrial proceedings, defendant announced on the first day of trial that he wished to proceed pro se. He voiced no complaints about his attorney but said that he wished to represent himself because of his familiarity with the factual complex behind the charges. The trial court conducted a searching inquiry of defendant, going into his educational background (he had completed at least two years of college) and his familiarity with the legal system (he had represented himself in a civil proceeding and achieved a satisfactory result and was also a paralegal). The court also questioned defendant closely as to the role of standby counsel. Defendant explained that standby counsel (the attorney who had represented him throughout) would open and close to the jury, pose objections and make legal arguments while defendant would handle the examination of witnesses. The trial court strongly cautioned defendant against proceeding in this fashion but, being satisfied that defendant understood the consequences, permitted defendant to proceed pro se with the assistance of standby counsel. State v. Figueroa, 186 N.J. 589, 595 (2006); State v. Crisafi, 128 N.J. 499, 510-12 (1992).

After the trial had been in progress several days, defendant entered a non-negotiated plea of guilty to the charge of theft of services and the two counts of passing a bad check. The remaining count in the indictment had been dismissed. In connection with that guilty plea, the trial court again conducted a searching inquiry of defendant to make sure he understood the rights he was giving up, the consequences of the plea, and that he was in fact guilty of the charges. The trial court indicated, in accordance with the plea forms which had been completed, its intention, barring an unexpected disclosure on the presentence report, to sentence defendant to a probationary term, conditioned upon restitution.

Defendant next appeared before the trial court on March 4, 1999, the date scheduled for sentencing. Defendant asked for an adjournment of the sentencing. He explained that he was attempting to raise funds to retain a lawyer to file a motion to withdraw his guilty plea. The trial court rejected defendant's request and proceeded with the sentencing as scheduled. It sentenced defendant to three concurrent five-year terms on probation, conditioned upon restitution totaling $41,600.

Defendant appealed his sentence to this court. Counsel assigned to represent him in connection with that appeal advised him by letter that she could perceive no cognizable issues in light of the nature of the sentence he had received. Defendant voluntarily withdrew that appeal. State v. Fried, No. A-5181-98 (App. Div. Aug. 23, 2000).

Defendant next appeared before the trial court in May 2001 in connection with the motion he had filed seeking to withdraw his plea of guilty. After extensive argument, the trial court denied that motion. Defendant again appealed to this court. Again, he voluntarily withdrew that appeal. State v. Fried, No. A-3227-01 (App. Div. Oct. 17, 2002).

Finally, defendant filed a petition for post-conviction relief, in which he contended he had not received the effective assistance of counsel. Counsel was assigned to represent defendant, and defendant's petition was argued before the trial court on May 12, 2005, nine years after the events for which defendant was convicted. After considering the argument of counsel, the trial court denied defendant's petition without conducting a plenary hearing. Defendant has again appealed.

On appeal, defendant raises the following contentions:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL . . . .

B. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

C. THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING SINCE HE AT LEAST PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II: THE DEFENDANT'S PRESENT CONTENTION WAS PROPERLY COGNIZABLE IN HIS PETITION FOR POST CONVICTION RELIEF AND WAS NOT PROCEDURALLY BARRED.

We have thoroughly reviewed the record in this matter and the trial court's order is affirmed substantially for the reasons stated by Judge James E. Isman in his oral opinion of May 12, 2005.

Affirmed

20070712

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