On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 92-07-1070.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Winkelstein.
In 1994, defendant was found guilty by a jury of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) and (2); felony murder, in violation of N.J.S.A. 2C:11-3a(3); three counts of attempted murder, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1); and various other offenses. All of these offenses were committed on July 21, 1991. The trial court sentenced defendant to an aggregate term of life plus forty years imprisonment, with fifty years of parole ineligibility. On appeal, we reversed defendant's convictions by a reported opinion and remanded the case for a new trial. State v. Phillips, 322 N.J. Super. 429 (App. Div. 1999).
Defendant was not retried until more than two years later. On June 5, 2001, new counsel for defendant entered an appearance, dated May 30, 2001, and a substitution of counsel. At that time, the case was listed for trial six weeks later, on July 16, 2001.
On June 12, 2001, defendant's new counsel submitted a certification requesting an adjournment of the trial date. The certification stated that defendant's new counsel had "received the two box file from Defendant's prior counsel, Tim Reilly, Esq. on June 4, 2001." The certification also stated: "I believe that in light of the size of the file, severity of the charges and short time period for preparation (five weeks), I may not be adequately prepared to represent defendant at trial on July 16, 2001, thereby potentially rendering my assistance of counsel ineffective and in violation of Defendant's Sixth Amendment Rights." A supporting brief indicated that defendant had dismissed his previous counsel and retained new counsel on June 1, 2001.
By letter dated June 14, 2001, the trial court denied defendant's request for an adjournment of the trial date. That letter stated in part:
I find that you have failed to provide this Court with a legitimate reason for continuing this case; which was remanded by the Appellate Division on June 29, 1999. The fact that there are trial transcripts to read and discovery to disseminate is not persuasive. The trial is scheduled for Monday, July 16, 2001 and your appearance was entered on May 30, 2001. This means that you will have forty-seven days by the time of the trial to adequately prepare your defense.
It is the Court's opinion that this is more than enough time to review, disseminate and prepare the discovery that you received from prior counsel.
Defendant was retried before a jury starting on July 17, 2001 and found guilty of felony murder, in violation of N.J.S.A. 2C:11-3a(3), first-degree robbery, in violation of N.J.S.A. 2C:15-1, and fourth-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(4). The jury acquitted defendant of purposeful or knowing murder, the three counts of attempted murder, and possession of a firearm for an unlawful purpose.
The trial court sentenced defendant to life imprisonment, with thirty years of parole ineligibility, for the felony murder, and a consecutive eighteen month term without parole for the aggravated assault. The court merged the robbery conviction. On appeal, we affirmed defendant's conviction and sentence in an unreported opinion. State v. Phillips, A-5660-01 (App. Div. Sept. 24, 2004). Defendant did not raise any issue in that appeal regarding the denial of his motion for an adjournment of the trial date. The Supreme Court denied defendant's petition for certification. 182 N.J. 428 (2005).
Defendant thereafter filed a petition for post-conviction relief, alleging that he was denied the effective assistance of counsel at his retrial because the trial court denied his new attorney a continuance to permit further trial preparation. Defendant's petition was supported by letter from his trial counsel, which asserted:
The purpose of my analysis is to assist in determining whether my counsel may have been rendered ineffective in any way as a result of Judge Telsey's refusal to grant a continuance. I had been hired to represent defendant approximately 3 weeks before the ...