On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-10-1971.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...