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State v. Foye

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 2, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARRYL FOYE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-10-1971.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2008

Before Judges Payne and Lyons.

Defendant, Darryl Foye, appeals from an order denying his petition for post-conviction relief. Upon review of the facts and the applicable law, we affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On October 28, 1999, a Monmouth County Grand Jury returned Indictment No. 99-10-1971 charging defendant with second degree eluding, contrary to N.J.S.A. 2C:29-2b (count one); and fourth degree unlawful taking of a means of conveyance, contrary to N.J.S.A. 2C:20-10b (count two). Trial was scheduled to begin on January 29, 2002; however, defendant refused to appear in court because he was displeased with his counsel, D.P., a public defender.

D.P. had previously represented defendant in 2000 on other charges, including murder. Defendant became dissatisfied with D.P. during that representation and filed a motion for substitution of counsel on September 11, 2000, which the trial court granted in that case. Defendant was then represented by private counsel. Following trial, defendant was convicted of murder and robbery and sentenced to a life sentence with a thirty-year period of parole ineligibility.

After defendant's arrest on the eluding and unlawful taking charges, the Office of the Public Defender again assigned D.P. to represent defendant. When D.P. arrived at the courthouse on the morning of January 29, 2002, to meet with defendant prior to trial, defendant informed D.P. that he was "fired." When D.P. relayed this information to the trial court, the court inquired as to whether defendant had filed a formal application to remove D.P. as counsel. D.P. responded that no application had been made and that he was "happy to handle the case."

After hearing from D.P. and a sheriff's officer, who both testified that defendant was adamant about not leaving the jail, the court decided that defendant's conduct in refusing to appear was tantamount to a waiver of his right to be present at trial. D.P. requested that defendant be afforded the opportunity to be present later in the proceedings if he chose, and the trial court agreed.

Defendant was tried in absentia and was convicted of second degree eluding. The charge of theft of a means of conveyance was dismissed during trial. Defendant was sentenced to an extended sentence of twenty years with ten years to be served before parole eligibility, concurrent with the sentence he was then serving.

On his direct appeal, we affirmed the conviction and sentence. State v. Foye, Docket No. A-6168-01T4 (App. Div. Jan. 27, 2004). The Supreme Court denied defendant's petition for certification on September 23, 2004.

Defendant thereafter petitioned for post-conviction relief (PCR). At the PCR hearing, defendant argued that he did not receive a fair trial because he had ineffective assistance of counsel, resulting from a breakdown in the attorney-client relationship. He also alleged that the trial court improperly ignored defendant's requests for new counsel and erred in refusing to hold a hearing on the issue of appointing new counsel. Defendant further argued that his sentence exceeded the presumptive sentence set by statute, in violation of State v. Natale, 184 N.J. 458 (2005).

The PCR judge rendered an oral opinion on September 22, 2006, and rejected defendant's argument that he was entitled to a hearing at the time of trial on whether to appoint new counsel because defendant did not raise the issue on direct appeal. R. 3:22-3. However, the PCR judge opted to address the argument and held that defendant never filed a motion to appoint new counsel, that any "breakdown" in the attorney-client relationship was due to defendant's unwillingness to cooperate, and his ineffective assistance of counsel claim was without merit. The PCR judge also rejected defendant's argument that he was entitled to re-sentencing under State v. Natale because the issue was addressed on direct appeal. R. 3:22-5. Moreover, the PCR judge held that defendant's claim did not fall under Natale's "pipeline retroactivity." Accordingly, the PCR judge rejected defendant's petition for post-conviction relief in all respects.

Defendant appeals the denial of his petition for post-conviction relief. His counsel presents the following arguments for our consideration:

POINT I: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO A BREAKDOWN IN THE ATTORNEY/CLIENT RELATIONSHIP.

POINT II: THE LOWER COURT ORDER MUST BE REVERSED SINCE THE TRIAL COURT FAILED TO HOLD A HEARING TO DETERMINE WHETHER THE ASSIGNMENT OF NEW COUNSEL WAS WARRANTED.

A. THE TRIAL COURT SHOULD HAVE HELD A HEARING DESPITE THE ABSENCE OF A FORMAL MOTION SINCE DEFENDANT'S ACTIONS WERE TANTAMOUNT TO A FORMAL MOTION.

B. THE TRIAL COURT SHOULD HAVE HELD A HEARING SUA SPONTE DESPITE THE ABSENCE OF A FORMAL MOTION.

C. THE TRIAL COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER DEFENDANT HAD KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO COUNSEL.

D. THE TRIAL COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER TRIAL COUNSEL'S REPRESENTATION OF DEFENDANT GAVE RISE TO A CONFLICT OF INTEREST REQUIRING THE SUBSTITUTION OF COUNSEL (NOT RAISED BELOW).

POINT III: THE IMPOSITION OF THE EXTENDED TERM SENTENCE WAS ILLEGAL AND UNCONSTITUTIONAL.

POINT IV: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT V: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT VI: THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

Additionally, defendant raises the following points pro se:

Point I: DID THE STATE FAIL TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT ATTEMPT [SIC] TO CREATE A "RISK" OF INJURY TO ANYONE. [SIC] VIOLATION OF THE SIXTH AMENDMENT & N.J. CONSTITUTION, ARTICLE, 1, PARAGRAPH 1. (NOT RAISED BELOW)

POINT II: WAS THE MAP INTRODUCED INTO EVIDENCE WITHOUT DUE PROCESS. [SIC] (NOT RAISED BELOW)

POINT III: DID TRIAL COURT GIVE DEFICIENT INADEQUATE MISLEADING JURY INSTRUCTIONS DENYING APPELLANT A FAIR TRIAL AND EQUAL PROTECTION OF THE LAW. [SIC] (NOT RAISED BELOW)

POINT IV: SHOULD TRIAL, APPELLANT AND PCR COUNSEL BE HELDED [SIC] RESPONSIBLE ON THE GROUND OF INEFFECTIVENESS OF COUNSEL. [SIC] VIOLATING APPELLANT"S [SIC] FEDERAL AND STATE CONSTITUTIONAL RIGHTS. (NOT RAISED BELOW).

The first issue considered is whether defendant was denied his constitutional guarantee of effective assistance of counsel. On an appeal from a denial of post-conviction relief, we must first establish that the defendant raised proper grounds for relief. Because a claim of ineffective assistance of counsel implicates constitutional issues, such a claim is proper. R. 3:22-4(c).

It has been well established that "in order to sustain a claim of ineffective assistance of counsel, two separate elements must coalesce: a defendant must prove an objectively deficient performance by defense counsel, and that such deficient performance so inured to the defendant's prejudice that it is reasonably probable that the result would be altered." State v. Allegro, 193 N.J. 352, 366 (2008). Stated differently, the defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984)).

Accordingly, when analyzing whether counsel's representation was deficient, "courts 'must be highly deferential' in their evaluation of counsel's performance, and avoid evaluating the performance with the 'distorted effects of hindsight.'" State v. Allen, 398 N.J. Super. 247, 253 (App. Div. 2008) (quoting State v. Norman, 151 N.J. 5, 37 (1997) (citations omitted)). Further, counsel is presumed to have made all significant decisions in the "exercise of reasonable professional judgment" Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2064-66, 80 L.Ed. 2d at 694-95, thereby requiring the defendant to overcome the presumption that "the challenged action might be considered sound trial strategy." State v. Arthur, 184 N.J. 307, 319 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95) (internal quotation omitted)). Our Supreme Court has stated that "[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." Ibid.

Moreover, even if a defendant can demonstrate that counsel's error was professionally unreasonable, the defendant still has "the burden of showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Arthur, supra, 184 N.J. at 319 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).

Defendant specifically asserts that trial counsel, D.P., provided ineffective assistance because of the "breakdown" in his relationship with his attorney. Defendant claims that this tenuous relationship resulted in his refusal to attend his own trial. He also asserts that D.P. failed to call witnesses and present evidence and that D.P. did not conduct an adequate pre-trial investigation. Defendant further contends that the failure of the Public Defender to assign him a new attorney resulted in him receiving ineffective assistance of counsel.

The State contends that defendant "cannot demonstrate that his absence from trial was anything but a voluntary decision on his part" and further argues that defendant offers no support for his claims that D.P. failed to call witnesses, present evidence and otherwise prepare for trial.

We first note that the trial court found that defendant waived his right to be present at trial and we affirmed that waiver. State v. Foye, supra, Docket No. A-6168-01T4. Rule 3:22-5 states that a prior adjudication upon the merits of "any ground for relief is conclusive" and will bar post-conviction review. Because this issue was thoroughly addressed at trial and on direct appeal, the PCR judge correctly determined that the issue was barred under Rule 3:22-5.

Regarding defendant's contention that D.P. should have called witnesses and performed a more thorough pre-trial investigation, it is well established when a defendant makes such a claim, he must assert facts "sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant did not provide such proofs here, but instead simply claims that "D.P. failed to develop a reasonable defense and, in fact, presented no defense whatsoever."

We may not disturb the order from the PCR judge denying defendant's post-conviction relief if the judge's findings are supported by sufficient credible evidence. State v. Johnson, 42 N.J. 146, 162 (1964). Here, the PCR judge found that defendant failed to prove an objectively deficient performance by his defense counsel. State v. Allegro, supra, 193 N.J. at 366. In support of that finding, the PCR judge cited numerous objections D.P. made over the course of the trial, his effective cross-examination of witnesses and his successful motion to dismiss count two of defendant's indictment. Clearly, the PCR judge's determination regarding D.P.'s performance is supported by substantial credible evidence. D.P.'s work was not "outside the wide range of professionally competent work" that will defeat an ineffective assistance of counsel claim. State v. Allegro, supra, 193 N.J. at 366. Defendant here made "bald assertions that he was denied the effective assistance of counsel" but failed to substantiate them in any way. State v. Cummings, supra, 321 N.J. Super. at 170. Therefore, his claim must fail.

Likewise, defendant's argument that the breakdown in his relationship with his attorney should have caused the Public Defender's Office to appoint him a new lawyer also falls short. While the right to counsel in criminal matters is guaranteed under the Federal and State Constitutions, this does not ensure that "counsel appointed for a defendant shall measure up to his notions of ability or competency. It is enough that the attorney assigned to the [case]. . . is qualified to represent the prisoner, and that he has advised with him and done whatever possible to represent him competently." State v. Harris, 384 N.J. Super. 29, 59 (App. Div.), certif. denied, 188 N.J. 357 (2006). In other words, "[c]counsel is not required to dance to the prisoner's tune." Ibid. Moreover, "a court may not require the Public Defender to assign new counsel to a defendant who was dissatisfied with the attorney assigned to represent him, absent a showing of 'substantial cause.'" Ibid.

Measured by these governing principles, we discern no violation of defendant's Sixth Amendment right to counsel. Most significantly, defendant has failed to demonstrate any "substantial cause" that would obligate the Public Defender's Office to appoint him new counsel. D.P. adequately represented defendant prior to and during his trial. He argued a bail motion on defendant's behalf, copied him on all his discovery and visited him numerous times in prison. Once trial began, he was an active advocate for defendant's cause and succeeded in getting one count of the indictment dismissed. Nothing in the record suggests that any substantial cause existed to take D.P. off the case. Therefore, defendant's request for relief was properly denied.

Defendant also argues that the trial court should have conducted a Faretta*fn1 inquiry after he expressed dissatisfaction with his representation and refused to attend his trial.

Defendant contends that his refusal to attend the trial was tantamount to him filing a motion "requesting removal of his counsel or to have new counsel assigned." Defendant raised this argument for the first time at his PCR hearing, and the PCR judge determined that the claim was barred under Rule 3:22-3. The PCR judge, however, also held that, substantively, defendant's argument was without merit.

The Constitution does not force a lawyer upon a defendant. The Sixth Amendment right to the assistance of counsel implicitly embodies a "correlative right to dispense with a lawyer's help." Faretta, supra, 422 U.S. at 814-15, 95 S.Ct. at 2541, 45 L.Ed. 2d at 581; State v. Sanchez, 129 N.J. 261, 273 (1992). However, a defendant must "voluntarily and intelligently" elect to conduct his own defense. Ibid. In this regard, the "right of self-representation does not attach until asserted." Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982); State v. Harris, supra, 384 N.J. Super. at 58. As such, the request to proceed pro se must be made "clearly and unequivocally." State v. Harris, supra, 384 N.J. Super. at 57 (quoting Faretta, supra, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed. 2d at 581).

Here, the record is barren of any expressed desire, much less a clear and unequivocal one, on defendant's part to proceed without counsel and to represent himself. Defendant only requested that the Public Defender's Office appoint him new counsel. He at no point suggested that he proceed pro se. Therefore, the court was under no obligation to "affirmatively suggest the option or hold a hearing into the voluntary and knowing character of a waiver never even expressed." State v. Harris, supra, 384 N.J. Super. at 60.

It is equally clear that defendant simply voiced his dissatisfaction with counsel without demonstrating "substantial cause" for the Office of the Public Defender to appoint him a new attorney. In fact, defendant's behavior "seems more of an attempt to proffer a valid basis to disrupt a trial in progress." Ibid. As we noted in State v. Slattery, 239 N.J. Super. 534, 542 (App. Div. 1990), "[a] defendant cannot be permitted to play a 'cat and mouse' game, thereby placing the trial judge in a position where, in managing the business of the court, he appears to be arbitrarily depriving the accused of counsel." (quoting United States ex rel. Davis v. McMann, 386 F.2d 611, 618-19 (2d Cir.1967), cert. denied, 390 U.S. 958, 88 S.Ct. 1049, 19 L.Ed. 2d 1153 (1968)). Under the circumstances, defendant suffered no violation of his Sixth Amendment right to proceed pro se.

Defendant also argues that, should we find that his actions were not tantamount to a formal motion for new counsel or to proceed pro se, the trial court should have held such a hearing sua sponte. Again, defendant's argument is unfounded. As stated above, a court is under no obligation to affirmatively hold a hearing to explore the voluntary and knowing character of a waiver of the right to counsel when the defendant has not expressed a desire to waive counsel. State v. Harris, supra, 384 N.J. Super. at 60. Here, defendant made no unequivocal expression of his desire to proceed pro se. As such, the PCR judge did not err in finding that the trial court was under no duty to hold such a hearing sua sponte.

We next address defendant's contention that the trial court should have held a hearing to determine whether trial counsel's representation of defendant gave rise to a conflict of interest requiring the substitution of counsel. Defendant argues that "[c]counsel's continued representation of defendant after defendant expressly fired counsel gave rise to a clear conflict of interest; D.P. could not render unswerving loyalty to his client while simultaneously ignoring the client's wishes on this important issue." It is true that:

[t]he attorney-client relationship is grounded in the fundamental understanding that an attorney will give 'complete and undivided loyalty to the client' so that '. . . [t]he attorney should be able to advise the client in such a way as to protect the client's interests, utilizing his professional training, ability and judgment to the utmost.'

[State ex rel. S.G., 175 N.J. 132, 139 (2003) (quoting In re Dolan, 76 N.J. 1, 9 (1978)).]

However, this duty of loyalty was not compromised in this case.

Our Professional Code of Conduct clearly states that a lawyer must continue representation "[w]hen required to do so by rule or when ordered to do so by a tribunal. . . ." RPC 1.16(c). This is the case even when the lawyer has "good cause for terminating the representation." Ibid. Also, our Rules of Professional Conduct forbid a lawyer from withdrawing if withdrawal cannot be accomplished without a materially adverse effect on the interests of the client, unless specific circumstances apply. RPC 1.16(a)-(b). It is clear that when our Supreme Court adopted the Rules of Professional Conduct, it did not consider a lawyer's preference for not representing a client as a "conflict" in the sense that the client would be prejudiced. Furthermore, the right to counsel cannot be "insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive [judges] of their inherent powers to manage and control the business before them." State v. Slattery, supra, 239 N.J. Super. at 542 (internal quotations omitted). The right to counsel is not absolute and cannot be exercised in total disregard for the expeditious resolution of the trial.

Therefore, defendant's argument that the alleged animosity between himself and D.P. was a conflict of interest that warranted a hearing at the trial level is unfounded and is rejected.

We next consider defendant's argument that the PCR judge should have granted defendant's request for an evidentiary hearing regarding his relationship with D.P. in order to determine if new counsel should have been appointed. A PCR court may hold an evidentiary hearing at its discretion. State v. Marshall, 148 N.J. 89, 157-58 (1997); R. 3:22-10. "Post-conviction relief courts ordinarily should grant evidentiary hearings if a defendant has presented a prima facie case in support of post-conviction relief." Ibid. (internal quotations and citations omitted). In this case, defendant has presented no prima facie case that he was not given effective assistance of counsel. The PCR judge, after reviewing the record, determined that D.P. performed adequately as defendant's counsel and that defendant had no Sixth Amendment claim. Therefore, it was entirely within the PCR judge's discretion to decline to hold an evidentiary hearing.

We next consider defendant's argument that the imposition of the extended term sentence was illegal and unconstitutional under State v. Natale, supra, 184 N.J. 458. The trial court sentenced defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a. Defendant concedes that he met the statutory predicates as a persistent offender under the statute. However, he argues that imposition of his extended sentence was discretionary and therefore the sentencing court was obligated to weigh "the aggravating and mitigating circumstances to determine the base term of the extended sentence." State v. Pennington, 154 N.J. 344, 354 (1998). Defendant contends that a jury, and not the trial court, was required to determine those aggravating and mitigating factors pursuant to State v. Natale, our Supreme Court's response to the U.S. Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). The PCR judge held that defendant's claim was procedurally barred because "it was previously decided by the Appellate Division."*fn2 R. 3:22-5. The PCR judge went on to determine that defendant's claim did not "fall within the purview of the pipeline of retroactivity of the Natale decision."

In State v. Natale, decided on August 2, 2005, the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." State v. Natale, supra, 184 N.J. at 474 (quotations omitted). The Court went on to apply "pipeline retroactivity" to its holding, which applied the newly announced rule to "defendants with cases on direct appeal as of the date of [the Natale] decision and to those defendants who raised Blakely claims at trial or on direct appeal." Id. at 494.

Defendant's direct appeal concluded with the Supreme Court's denial of his petition for certification on September 23, 2004, almost one year prior to the Natale decision in August 2005. Furthermore, defendant did not raise a Blakely claim on his direct appeal. Instead, he raised it for the first time in his petition for post-conviction relief. Therefore, it is clear that the PCR judge did not err in finding that Natale's pipeline retroactivity is not applicable to defendant's claim.*fn3

Lastly, we address the points defendant raises in his pro se supplemental brief. Defendant did not raise in the trial court any of the arguments contained in his brief. We, therefore, need not address these issues because Rule 3:22-4 bars any ground for relief not raised in the proceedings resulting in conviction unless the court makes certain findings which are not present in this case. However, because defendant asserts that the arguments he raises pro se were not raised below because his PCR counsel was ineffective, we will address that point.

Defendant makes "bald assertions that he was denied the effective assistance of counsel," State v. Ball, 381 N.J. Super. 545, 558 (App. Div. 2005) (citations omitted), but, as with his claims of dissatisfaction with D.P., he has failed to substantiate his allegations in any way. See State v. Cummings, supra, 321 N.J. Super. at 170 (holding that defendant must support his assertion of ineffective assistance of counsel with affidavits or certifications based on personal knowledge). In fact, the record demonstrates that defendant's PCR counsel submitted a brief and orally argued on defendant's behalf. There is nothing to suggest that his performance breached defendant's Sixth Amendment right to counsel. As such, defendant's claim that he was denied effective assistance of counsel at his PCR hearing lacks merit. Because the other claims submitted in his pro se brief were not raised below and do not meet the exceptions to the rule barring same, we decline to address them here. R. 3:22-4.

With regard to defendant's other arguments, we deem them to be of insufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(2).

We, therefore, affirm the denial of post-conviction relief. Affirmed.


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