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State of New Jersey v. Michael Hayes

SUPREME COURT OF NEW JERSEY


March 31, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL HAYES, DEFENDANT-APPELLANT.

On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice Rivera-soto

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. Michael Hayes

(A-13)

Argued February 28, 2011

Decided March 31, 2011

RIVERA-SOTO, J., writing for a unanimous Court.

In this appeal, the Court evaluates the denial of defendant's request for an adjournment of sentencing so that he could obtain conflict-free counsel to represent him in making a motion to withdraw his two guilty pleas.

In one indictment, defendant Michael Hayes was charged with first-degree robbery and resisting arrest. He was captured on surveillance cameras entering and exiting the public restroom where he robbed a casino patron, and the patron later identified Hayes as his assailant. Retained counsel represented Hayes on that indictment. A public defender represented Hayes on charges returned in a second, separate indictment for weapon possession offenses and eluding police. Hayes's lawyers jointly negotiated a written plea agreement with the State. Hayes was to plead guilty to the robbery and eluding charges. In exchange, the State would recommend a thirteen-year prison term subject to the No Early Release Act (NERA) on the robbery charge; a concurrent term of five years on the eluding charge; and dismissal of all remaining counts of both indictments.

Hayes was represented by both attorneys at his plea hearing. After a comprehensive examination under oath by the trial court, he pled guilty to the robbery and eluding charges. The court confirmed that Hayes reviewed the plea agreement with his attorneys, read and understood it, and voluntarily signed it. Hayes confirmed that he understood he could be sentenced to up to thirteen years subject to NERA, which would require him to serve 85 percent of the sentence before being eligible for parole. Hayes assured the court that no additional promises and no threats had been made to induce him to plead guilty. After Hayes provided a sworn factual basis for his guilty pleas, the court advised him of his right to a jury trial and other rights that, by pleading guilty, he would be waiving. Hayes assured the court he understood his rights and was voluntarily waiving them, he was satisfied by the representation of his attorneys, and he had no questions. Throughout his examination, Hayes never wavered; never advised the court that his guilty pleas were not knowingly and voluntarily entered or that he was dissatisfied with the consequences of the plea; and, despite several opportunities to do so, never claimed he was innocent of the charges. The court continued Hayes's release on bail but cautioned that he must remain "arrest-free" until the sentencing date to remain free on bail. Before sentencing, Hayes was arrested on new charges and his bail was revoked.

Hayes first informed the court of his desire to withdraw his pleas at the sentencing hearing, two months after the plea hearing. His retained counsel explained that two separate lawyers were contacted about making a plea withdrawal motion; one had a conflict of interest, while the other could not attend that day's proceedings due to a scheduling conflict. Hayes's retained lawyer also stated that he believed he could not ethically represent Hayes in the application because he assumed, based on Hayes's claims of ineffective assistance of counsel during the plea proceedings, that he would be a witness in the motion. He requested a two-week adjournment of sentencing so that new counsel could file the necessary motion to withdraw. The court heard from Hayes, who asserted that he "never wanted this plea from the beginning," wanted to go to trial, and felt compelled to plead guilty in fear that his bail would be revoked before sentencing. The court stated that at the time of the plea, it was satisfied that a valid plea was entered; and that it heard nothing from Hayes other than "the pleader's form of buyer's remorse." The court denied the application and proceeded with sentencing under the terms of the negotiated plea agreement. After the court heard from the attorneys about sentencing, the court asked whether Hayes wished to be heard on the sentence. Hayes returned to the denial of his uncounseled oral application to withdraw his guilty pleas, asserting that he was forced to enter his pleas and wanted to go to trial. The court observed that although Hayes "wasn't an enthusiastic pleader," it was satisfied at the time of the plea that Hayes was competent and understood his rights; and that there was a factual basis for the pleas. The court sentenced Hayes in accordance with the plea agreement.

The Appellate Division addressed the factors relevant to the withdrawal of a guilty plea set forth in State v. Slater, 198 N.J. 145 (2009), concluded that the trial court properly denied Hayes's motion, and affirmed his convictions and sentence. The Court granted Hayes's petition for certification. 203 N.J. 440 (2010).

HELD: Under the circumstances, a short adjournment should have been granted to permit Hayes to obtain conflict-free counsel to advance his application to withdraw his guilty pleas. Because Hayes was required to proceed without counsel, a fair and informed judgment of whether he should have been allowed to withdraw his pleas cannot be reached. The case is remanded to the trial court for a properly counseled Slater hearing, to be conducted under the "interests of justice" pre-sentencing burden of proof codified in Rule 3:9-3(e).

1. Under Slater, four factors must be balanced in evaluating motions to withdraw a guilty plea: (1) whether defendant asserted a colorable claim of innocence; (2) the nature and strength of the reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to defendant. A pre-sentence motion is governed by the "interest of justice" standard of Rule 3:9-3(e), while a post-sentence motion is subject to the "manifest injustice" burden of proof of Rule 3:21-1. Without the constitutional guarantee of the assistance of counsel in presenting the motion, Slater's mandate would be meaningless. As this Court has explained, "a convicted defendant may not be imprisoned unless counsel was available to him at every critical point following the initiation of adversary judicial criminal proceedings." (pp. 15-18)

2. By denying Hayes an adjournment to obtain counsel to prosecute a motion to withdraw his guilty pleas, the trial court effectively required that Hayes himself present his motion. A decision whether to grant an adjournment is subject to an abuse of discretion standard. In reviewing whether a reasonable delay to permit a defendant to retain counsel of his choice is warranted, the court must conduct a fact-sensitive inquiry and strike a balance between all competing interests. For an appellate court to reverse the denial of such a request, the denial must have been clearly unreasonable under the circumstances, and it must have caused a manifest denial of justice to the party complaining. (pp. 18-23)

3. The Court reluctantly concludes that the denial of Hayes's request for an adjournment was a misuse of discretion. The trial court's reaction may have been understandable under the circumstances, including the clarity and scope of the plea colloquy and the unexplained delay in notifying the court about Hayes's wish to withdraw his plea. However, the denial of Hayes's adjournment request was prejudicial to his rights. In light of the representations about the efforts made to obtain a new attorney, the court should have granted a short adjournment to allow Hayes to be represented by counsel on his motion to withdraw his pleas. Instead, he was required to proceed without counsel contrary to the fundamental constitutional notions of fairness that must guide criminal proceedings. (pp. 23-25)

4. The record on appeal discloses no meaningful analysis of the denial of Hayes's withdrawal motion. The only references to that denial are the trial court's conclusions that, at the time the guilty pleas were accepted, Hayes was competent, understood his rights, gave a factual basis for his pleas, and entered into a negotiated plea. On the record presented, the Court cannot know whether Hayes might have been able to satisfy the Slater standards with the help of a lawyer. The only meaningful remedy here is to remand this case to the trial court for a fulsome plea withdrawal hearing at which Hayes is to be represented by unencumbered counsel. Because Hayes sought to have his motion to withdraw determined before sentence was imposed, his application must be gauged under the lesser "interests of justice" burden of proof set forth for pre-sentence plea withdrawal motions under Rule 3:9-3(e). (pp. 25-27)

The judgment of the Appellate Division is REVERSED andthe matter is REMANDED to the Law Division for further proceedings consistent with the Court's opinion.

CHIEF JUSTICE RABNER; JUSTICES LONG, LaVECCHIA, ALBIN, and HOENS; and JUDGE STERN (temporarily assigned) join in JUSTICE RIVERA-SOTO's opinion.

Argued February 28, 2011

JUSTICE RIVERA-SOTO delivered the opinion of the Court. This appeal requires that we evaluate the denial of a request for an adjournment to obtain conflict-free counsel in the context of a motion to withdraw two guilty pleas. Defendant Michael Hayes, having pled guilty to charges arising out of two separate indictments pursuant to a written plea agreement, sought additional time to advance a request to withdraw his guilty pleas before sentencing; he represented to the trial court that he had sought to secure the services of two separate lawyers for that application, one of whom could not represent defendant due to a conflict of interest, and the other who agreed to represent defendant but who could not attend that day's proceedings due to a scheduling conflict. A privately retained lawyer -- who, to that point, had represented defendant on one of the two indictments -- explained to the trial court that he too could not represent defendant in the application because he assumed, based on defendant's claims of ineffective assistance of counsel arising out of the plea proceedings, that he would be a witness in defendant's motion to withdraw his guilty pleas. Although at that moment defendant effectively was without counsel, and without conducting an inquiry into defendant's claims, the trial court denied the requested adjournment, denied defendant's application to withdraw his guilty pleas, and sentenced defendant in accordance with his plea agreement.

Last minute motions to withdraw guilty pleas present often contradictory concerns, the motivations for which are difficult to discern: some may be tactical maneuvers that bear no relation to the initial propriety of the plea, but instead arise from fear of the consequences of one's acts, buyer's remorse, a realization of certain and perhaps lengthy imprisonment, or other, like sources, while others may be grounded on solid, proper bases. For that reason, the task confronting a trial court when determining a motion to withdraw a guilty plea is neither simple nor easy. To aid in that admittedly difficult process, we reaffirm the principles set forth in State v. Slater, 198 N.J. 145 (2009), that govern the factors relevant to motions to withdraw guilty pleas and underscore the different burdens of proof that apply based on whether the motion is made pre- or post-sentencing. That said, those jurisprudential notions presuppose that, in advancing an application to withdraw a guilty plea, a defendant has received the basic protection constitutionally required for all who stand accused of a crime: the benefit of counsel. Here, because defendant was required to proceed on his oral application to withdraw his guilty pleas without the benefit of counsel, a fair and informed judgment of whether he should have been allowed to withdraw his guilty pleas cannot be reached. Therefore, this case must be remanded to the trial court for a properly counseled Slater hearing, to be conducted under the "interests of justice" pre-sentencing burden of proof codified in Rule 3:9-3(e), and not under the "manifest injustice" post-sentencing burden of proof set forth in Rule 3:21-1.

I.

On April 30, 2007, a patron at an Atlantic City casino cashed out nearly eight thousand dollars in chips. While in a public bathroom shortly thereafter, defendant used his hand to simulate a gun, poked his finger into the patron's back, and demanded the patron's money or defendant would "blow his brains out[.]" Defendant and the patron struggled, but defendant was able to take the money from the patron and flee. Defendant was pursued by Officer Syndor of the Atlantic City Police Department, and eventually was arrested. Defendant's entry to and exit from the bathroom were captured by the casino's surveillance cameras, and the patron later positively identified defendant as his assailant and robber. On July 5, 2007, the Atlantic County grand jury returned an indictment charging defendant with first-degree robbery, in violation of N.J.S.A. 2C:15-1, and fourth-degree resisting arrest, in violation of N.J.S.A. 2C:29-2(a)(3). Defendant was represented by retained counsel in respect of that indictment.

Less than two weeks after that indictment was returned and while released on bail for those charges, defendant was driving in Egg Harbor Township when a police officer flagged him down. Instead of complying, defendant fled, resulting in a car chase that at times exceeded 100 miles per hour. When he finally stopped, defendant had a firearm in his possession; based on his prior criminal record, defendant was disqualified from possessing any firearm. As a result of those events, the Atlantic County grand jury returned another, separate indictment, this one charging defendant with second-degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7, third-degree eluding, in violation of N.J.S.A. 2C:29-2(b), and third-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b). On the charges returned in this indictment, defendant was represented by the Office of the Public Defender.

Defendant's two lawyers -- his retained counsel and his public defender -- jointly negotiated a plea agreement with the State that disposed of both indictments. Under that agreement, defendant was to plead guilty to the first-degree robbery charge from the first indictment and the third-degree eluding charge from the second indictment. In exchange, the State would recommend a thirteen-year prison term subject to the mandatory parole disqualifier and parole supervision requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree robbery charge; a concurrent term of five years on the third-degree eluding charge; and dismissal of all remaining counts of both indictments.*fn1

On March 7, 2008, and again represented by both his retained counsel and his public defender, defendant -- after a comprehensive examination under oath by the trial court -- entered guilty pleas pursuant to the negotiated plea agreement. After ascertaining that defendant did not have "any physical or any other problem which affect[ed defendant's] ability to understand what's going on here today" and that defendant was not "presently under the influence of any drugs or medication or anything at all[,]" the trial court reviewed the written plea agreement form with defendant. Confirming that defendant had read, initialed and signed the written plea agreement form in several places, the trial court engaged defendant in a detailed colloquy, confirming first that defendant had reviewed the plea agreement form with both his retained counsel, in respect of the robbery charge, and his public defender, on the eluding charge. Addressing the contents of the plea agreement form, the trial court ascertained from defendant that he understood the plea agreement form; that defendant had answered correctly all of the questions on the plea agreement form; and that defendant had signed the plea agreement form voluntarily. Turning to the terms of his plea agreement, the trial court had defendant confirm that he understood that the maximum sentence he could receive under the plea agreement was a term of imprisonment of thirteen years, subject to the provisions of NERA; that, pursuant to NERA, defendant would "have to do 85 percent of the sentence imposed before [defendant would be] eligible for parole[;]" that, under NERA, he would be subject to a period of "parole for five years once release[d;]" that if he "violated the terms of that parole, [he] could be returned to do the balance of [his] sentence[;]" and that defendant would receive "a five-year concurrent sentence on the eluding[.]" The trial court then had defendant assure the court that, other than what appeared on the plea agreement form, no additional promises had been made to defendant, and that no threats had been made to defendant to induce him to plead guilty.

After defendant provided a sworn factual basis for his guilty pleas to both the robbery and eluding charges, the trial court advised defendant of his right to a jury trial on each of the indictments to which defendant was pleading; that, at each of those trials, defendant would be cloaked with the presumption of innocence unless and until proven guilty beyond a reasonable doubt; that at those trials, defendant was entitled to be represented by counsel; that defendant had the right to remain silent, unless he voluntarily waived that right, and that no one could comment on defendant's exercise of that right; and that, by pleading guilty, defendant was waiving those rights. Defendant assured the trial court that he understood all of those rights and was voluntarily waiving them. The trial court also was assured by defendant that he was satisfied by the representation he had received from his retained counsel in the robbery case and his public defender in the eluding case, and that he had no questions of either counsel or of the court. The colloquy concluded:

THE COURT: After everything we've been over under the terms of the plea agreement, which calls for a sentence not to exceed 13 years New Jersey S[t]ate Prison with a requirement of whatever the sentence that's imposed within that range is subject to the No Early Release Act, that means you got to serve 85 percent before you're eligible for parole, do you wish to enter these two guilty pleas?

[DEFENDANT]: Yes.

Throughout the entire examination under oath, defendant never wavered and, more to the point, never advised the trial court that his guilty pleas were not knowingly and voluntarily entered or that he was otherwise dissatisfied with the plea agreement terms or consequences. More specifically, although provided the opportunity to do so several times, defendant never asserted he was innocent of the charges to which he was pleading guilty.

The trial court then ordered that a pre-sentence investigation report be prepared concerning defendant, and continued defendant's release on bail. But, the trial court explicitly and clearly cautioned that defendant "need[ed] to be arrest[-]free between [the sentencing date] and now to remain free on bail." Defendant was unable to comply with this condition: at some time between the entry of his guilty plea and his sentencing date, defendant was arrested on new charges,*fn2 and his bail was revoked.

Sentencing on the robbery and eluding pleas was scheduled for May 2, 2008. Although almost two months had elapsed since defendant's pleas, defendant's desire to withdraw his pleas was not raised with the trial court until the sentencing hearing itself, and then only by an oral application piggy-backed onto an oral request for an adjournment. In respect of the adjournment application, defendant's retained counsel stated he had "been contacted by no fewer than two other attorneys." He explained that the first substitute lawyer, despite expressing an initial interest in representing defendant on his plea withdrawal motion, could not do so due to a conflict of interest arising out of the most recent set of charges lodged against defendant after his guilty pleas had been entered and by reason of which defendant's bail had been revoked. He also stated that a second substitute lawyer said he could and would represent defendant on the plea withdrawal application, but the second substitute lawyer had a scheduling conflict for that day. Defendant's retained counsel also explained that defendant's family "contacted me last week and they wanted me to make that [plea withdrawal] application[,]" noting that he had "indicated to them ethically [he] didn't feel [he] can do that" and that "[a] new attorney would have to get involved because then [he] would become a witness." Observing that defendant had "expressed an extreme displeasure with going forward to sentencing today[,]" defendant's retained counsel requested that defendant's sentencing be postponed "for at least two weeks so that [new, substitute counsel] could file the necessary motion to withdraw." Defendant's retained counsel expressed that defendant wished to address the trial court directly on that matter.*fn3

Acceding to that request, the trial court inquired of defendant. Defendant explained:

I never wanted this plea from the beginning. I asked to go to trial. . . . I was advised by my attorney, which was ineffective counsel, . . . that you was going to revoke my bail [for the eluding case]. And I'm the sole provider for my wife and my daughter. . . . I never wanted this deal. I wanted to go to trial. I still want to go to trial. On the day I signed the deal, I hired an attorney right after that, [the first substitute lawyer], to take the plea back. You know, like I didn't know that you was going to revoke my bail, but I was advised by [defendant's private counsel] that you was going to revoke my bail if I didn't sign for this deal. I didn't want that deal. You see that I signed for trial, and I never wanted the deal and I still don't want the deal. . . . I mean to take the plea back if you allow it and go to trial. . . . I still want to go to trial and I don't want this deal if you allow it, Your Honor. I've been trying to hire counsel from last month --some time to put this motion in or whatever. . . . You seen when I took this plea agreement I was very emotional. . . .

In addition to stating that he felt compelled to plead guilty in fear that his bail would be revoked pending sentencing, defendant commented that his bail in fact had been revoked in the interim. The trial court responded:

I will simply note that when the plea was entered on [March 7, 2008] I said continue bail, must remain arrest[-]free was an express condition of the bail. So you walked out of the Courtroom after you entered your plea. You did not remain arrest free. Now, you can do whatever you care to defend those new charges quite simply. There was an arrest on very significant new charges, which led to what occurred and that's all I'll say.

The trial court concluded that, "at the time of the plea I was satisfied that a valid plea was entered, continued [defendant] on bail subject to his requirement that he remain arrest[-]free, and today was given as the [sentencing] date." It emphasized: "I have yet to hear[ anything] other than a change of mind, the pleader's form of buyer's remorse. I hear an application now to take the plea back. Well, there are legal standards for that, so I'm going to deny the application." It noted that it "intend[ed] proceeding with sentence and any motions which can be made with respect to the plea agreement the defendant is perfectly free to make with whoever he chooses to have present them. But I do intend proceeding with a sentence under the terms of the negotiated plea."

Once it heard from defendant's retained counsel and defendant's public defender in respect of sentencing, the trial court inquired whether defendant wished to be heard concerning the sentence to be imposed. Defendant returned instead to the denial of what had become his uncounseled oral application to withdraw his guilty pleas. He stated that "I know I'm not guilty of these charges. I was forced to take a plea. Like, I wasn't even in the right state of mind." He claimed that, at the plea hearing, "I was real hysterical, crying and all that." He asserted: "I was pressured to take that. I didn't want this plea and I didn't want this plea from the start. Like, I want it to be noted on the record I never wanted this plea and like I just don't understand this." He claimed his retained counsel had advised him that if he did not accept the pleas offered, the trial court "was going to lock me up and revoke my bail and that's why I took the deal." He repeated:

I just want to go to trial. That's it. I know all the faults. I know what I'm facing. All the adversity[,] whatever. I didn't ask for this deal. I don't want this. They was forcing me. I wasn't even in the right capacity. Like, I was high, maybe made false judgments, all this. Like, I don't want this deal, Your Honor.

The trial court observed that defendant "clearly wasn't an enthusiastic pleader, but I'm also satisfied and said I believe at the time I accepted the plea that I found him competent to enter a plea, that he understood his rights. There was a factual basis. And he did enter a negotiated plea." On that basis, the trial court sentenced defendant in accordance with the plea agreement, and dismissed all remaining charges "without prejudice [to] reinstate[ment] should the plea be vacated[.]"

Defendant appealed and, in an unpublished, per curiam opinion, the Appellate Division affirmed. Addressing the factors relevant to the withdrawal of a guilty plea enumerated in Slater, supra, 198 N.J. at 157-58,*fn4 the panel was "persuaded the trial court properly denied defendant's motion to vacate his guilty plea." It noted that "[w]hile defendant expressed that he wanted to go to trial and was coerced into pleading guilty, he at no time raised a colorable claim related to the merits of the underlying charges against him." It observed that the evidence arrayed against defendant was overwhelming. It also remarked that "the guilty pleas entered here were part of a negotiated plea agreement" and that "[w]here a defendant's guilty pleas are part of a negotiated plea agreement that a defendant has entered knowingly and voluntarily, the pleas are presumed to possess a higher degree of finality." (citing State v. Means, 191 N.J. 610, 619 (2007)). Finding no infirmity in the denial of defendant's motion to withdraw his guilty pleas, the Appellate Division affirmed defendant's convictions and sentence.*fn5

Defendant sought certification, alleging that his pleas were not knowingly and voluntarily made, and that, under Slater, the motion to withdraw his pleas should have been granted and his pleas vacated. That petition was granted, State v. Hayes, 203 N.J. 440 (2010), and the parties separately were granted leave to submit supplemental briefs.

II.

On certification, defendant has shifted his focus. He now principally contends that the trial court erred when it denied his request for an adjournment to secure counsel to press the motion to withdraw his guilty pleas. He asserts that forcing him to proceed in the circumstances presented was tantamount to depriving him of the constitutionally guaranteed right to counsel, an error that vitiated the subsequent proceedings.

The State argues that, in order to present a cognizable request for an adjournment, defendant was required to make a prima facie showing that the motion to withdraw his guilty pleas had merit; it urges that, based on the proceedings below, there is no basis to conclude that defendant's motion to withdraw his guilty pleas was anything more than a delay tactic. The State also asserts that, even if the denial of an adjournment was in error, that error was harmless because, again, defendant's plea withdrawal motion lacked merit. It concludes that any claim that defendant's retained counsel or defendant's public defender were ineffective in failing to advance defendant's motion to withdraw his guilty pleas requires the resolution of facts outside the record and, thus, must be preserved for a later petition for post-conviction relief.

III.

A.

Slater, supra, sets forth a four-prong test by which to gauge a defendant's motion to withdraw a guilty plea. It provides that trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. [198 N.J. at 157-58 (citation omitted).]

It also explains that although "[t]he same factors are to be used for motions filed either before or after sentencing," whether the motion is made pre- or post-sentencing "will trigger different burdens of proof for the movant[.]" Id. at 158. It underscores that "pre-sentence motions to withdraw a plea are governed by the 'interest of justice' standard in Rule 3:9-3(e), while post-sentence motions are subject to the 'manifest injustice' standard in Rule 3:21-1." Ibid.

That said, Slater's mandate would be rendered meaningless without the underlying constitutional guarantee of the assistance of counsel in presenting that motion. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."); N.J. Const. art. I, ¶ 10 ("In all criminal prosecutions the accused shall have the right . . . to have the assistance of counsel in his defense."); see also State v. Fritz, 105 N.J. 42, 58 (1987) (holding that, under New Jersey Constitution, "a criminal defendant is entitled to the assistance of reasonably competent counsel"). That constitutional guarantee "embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty[.]" Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S. Ct. 1019, 1022, 82 L. Ed. 1461, 1465-66 (1938).

Over thirty years ago, this Court acknowledged that "[w]ithout the guiding hand of counsel, an innocent defendant may lose his freedom because he does not know how to establish his innocence[,]" and that "[t]rained counsel is also necessary to vindicate fundamental rights that receive protection from rules of procedure and exclusionary principles." State v. Sugar, 84 N.J. 1, 16 (1980) (citations omitted). In sum, "[t]he right to be heard [in court] would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." Powell v. Alabama, 287 U.S. 45, 68-69, 53 S. Ct. 55, 64, 77 L. Ed. 158, 170 (1932).

The governing principle is simple and deeply ingrained in the fabric of our jurisprudence: "Because the assistance of counsel is essential to insuring fairness and due process in criminal prosecutions, a convicted defendant may not be imprisoned unless counsel was available to him at every critical point following the initiation of adversary judicial criminal proceedings[.]" Sugar, supra, 84 N.J. at 16 (citations and internal quotation marks omitted); see also State v. A.O., 198 N.J. 69, 82 (2009) (holding that "[o]nce adversary judicial proceedings have begun, the right [to counsel] applies not only at trial, but to any critical stage of the prosecution, that is, any stage in which the substantial rights of the accused may be affected" (citation and internal quotation marks omitted)).

It is to the intersection of the right to the assistance of counsel with the denial of a criminal defendant's motion for an adjournment that we now turn.

B.

Before defendant's sentencing proceeding began, his retained counsel advised the trial court that defendant sought an adjournment in order to secure counsel to prosecute a motion to withdraw his earlier entered guilty pleas; counsel explained that he could not press the withdrawal motion because he believed he would be a witness in that application and, therefore, was ethically bound to refrain from acting on that motion.*fn6 See RPC 3.7(a) (stating general rule that "[a] lawyer shall not act as advocate at a [proceeding] in which the lawyer is likely to be a necessary witness"). In support of that application, defendant represented -- and, to a large degree, his retained counsel corroborated -- that he had started his search for new counsel to advance the motion to withdraw his guilty pleas immediately after entering them; that the first lawyer he contacted agreed to represent him, but later had to withdraw from the representation due to a conflict arising out of defendant's most recent charges; and that a second lawyer also agreed to represent him, but was unable to attend the sentencing hearing due to a previously existing scheduling conflict. Based on the aggregate of these representations, defendant requested a two-week adjournment. The trial court denied the adjournment, thereby effectively requiring that defendant himself present his motion to withdraw his guilty pleas without the benefit of counsel, something defendant patently was ill-equipped to do.

New Jersey long has embraced the notion that "[a] motion for an adjournment is addressed to the discretion of the court, and its denial will not lead to reversal unless it appears from the record that the defendant suffered manifest wrong or injury." State v. Doro, 103 N.J.L. 88, 93 (E. & A. 1926) (citations omitted); see also State v. Gallo, 128 N.J.L. 172, 174 (Sup. Ct. 1942) ("The matter of postponement of a trial is one that is singularly within the sound discretion of the court."); State v. Zied, 116 N.J.L. 234, 239 (E. & A. 1936) (quoting Doro, supra).

More recently, that norm was expressed as "a trial court's decision to deny a request for an adjournment to permit a defendant to retain counsel of his choice will not be deemed reversible error absent a showing of an abuse of discretion which caused defendant a 'manifest wrong or injury.'" State v. McLaughlin, 310 N.J. Super. 242, 259 (App. Div.), certif. denied, 156 N.J. 381 (1998) (citation omitted). State v. Furguson exhaustively sets forth the principles that govern this inquiry:

What constitutes a reasonable adjournment to permit a defendant to retain counsel of his own choice depends generally upon the surrounding facts and circumstances. One of the leading cases on the subject is United States v. Burton, [584 F.2d 485, 490-91 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979)], where the court commented on the factors to be considered in determining whether a reasonable delay is warranted:

Some of the factors to be considered in the balance include the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case.

When a defendant applies for an adjournment to enable him to substitute counsel, the trial court must strike a balance between its inherent and necessary right to control its own calendar and the public's interest in the orderly administration of justice, on the one hand, and the defendant's constitutional right to obtain counsel of his own choice, on the other. [198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985).]

Those factors in the aggregate instruct that whether a trial court should grant or deny a defendant's request for an adjournment to retain counsel requires a balancing process informed by an intensely fact-sensitive inquiry. In striking the necessary balance between all identified competing interests, the trial court's conclusions will not be disturbed absent a misuse of judicial discretion, that is, the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case. [Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952).]

In that context,

there are two conditions which must exist to warrant an appellate court in nullifying a ruling of the trial court made in the exercise of a conceded discretion. The first is that the judicial action must have been clearly unreasonable in the light of the accompanying and surrounding circumstances, and the second condition is that the ruling must have resulted prejudicially to the rights of the party complaining. [Id. at 132-33.]

In respect of "the first condition[,] it is not to be supposed that a mere difference in judicial opinion concerning the feasibility, expediency or pragmatical propriety of the ruling is synonymous with abuse of judicial discretion." Id. at 133 (citations omitted). And, as to the second condition, the inquiry always is, Has injustice been done? Has the party been injured? If he have not, no good reason can be given why he should receive the favor of trying his cause over again. Essentially it is the manifest denial of justice to a party that constitutes an abuse of discretion.

[Ibid. (citations omitted).]

We now apply those principles to this appeal.

C.

No doubt, when defendant requested an adjournment of his sentencing proceeding in order to secure uncompromised counsel to represent him in respect of the motion to withdraw his guilty pleas, the trial court was confronted with a quandary, although one that, common experience tells us, occurs with disturbing regularity. Despite the fact that the sentencing proceeding had been scheduled since the guilty pleas were entered almost two months before, no one had alerted the trial court that a motion to withdraw those pleas was forthcoming. That said, defendant, who was then in custody as a result of his revoked bail status, and his retained counsel explained the efforts made to secure substitute counsel. Attributing the request to withdraw the guilty pleas solely to nothing "other than a change of mind, the pleader's form of buyer's remorse[,]" the trial court denied the application for an adjournment and, without more, denied defendant's motion to withdraw his guilty pleas. Understandable as that reaction may have been under the circumstances presented, we are bound to conclude that the denial of the request for an adjournment constituted a misuse of discretion. Based on the clarity and scope of the plea colloquy coupled with the unexplained delay in notifying the trial court and the State of defendant's wish to withdraw his pleas, we reach that conclusion with reluctance; however, in the circumstances presented, the denial of defendant's request for an adjournment was unreasonable and prejudicial to defendant's rights.

At the outset of defendant's sentencing proceeding, once his retained counsel noted that, in his view, the Rules of Professional Conduct forbade him from representing defendant in respect of the motion to withdraw defendant's guilty pleas, defendant effectively was without representation, a status anathema to the fundamental constitutional notions of fairness that must guide criminal proceedings. In light of the uncontested representations concerning the efforts made in seeking substitute counsel, prudence dictated that, at the least, additional inquiry should have been made as to the availability of substitute counsel and a short adjournment granted to allow defendant to be represented by counsel in pressing the motion to withdraw his guilty pleas. In those circumstances, the effect of going forward on defendant's withdrawal motion equaled requiring that defendant proceed without counsel. In the context of a criminal proceeding, where liberty is at stake, that result cannot be countenanced, and constitutes "judicial action . . . clearly unreasonable in the light of the accompanying and surrounding circumstances," and resulted in a "ruling . . . prejudicial[] to the rights of the party complaining." Smith, supra, 17 N.J. Super. at 133.

The State argues, however, that even if it was error to deny defendant's application for an adjournment, that error was harmless because defendant's underlying motion to withdraw his guilty pleas lacked merit. We cannot agree. The record on appeal discloses no meaningful analysis of the denial of defendant's withdrawal motion; the only references to that denial are the trial court's conclusions that, at the time the guilty pleas were accepted, defendant was found competent to enter a plea, that defendant then understood his rights, that there was a factual basis for the pleas, and that defendant entered into a negotiated plea. Solely based on those statements, the trial court concluded that "I have yet to hear, other than a change of mind, the pleader's form of buyer's remorse" anything to support the withdrawal motion, and that "there are legal standards for that[.]" On that basis, the trial court denied defendant's plea withdrawal motion.

Slater was decided after defendant's adjournment request and plea withdrawal motion were denied. Regardless, on the record presented, we cannot gauge whether defendant's plea withdrawal application satisfied any relevant standard then obtaining.*fn7 Where a defendant in practice has been denied the right to be represented by counsel -- as in the circumstances present here -- we can have no confidence in the uncounseled proceedings below. We cannot know whether defendant might have been able to satisfy the Slater standards with the help of a lawyer. We readily understand the consequences to defendant in this case, though: he lost the benefit of the less stringent pre-sentencing standard that would have applied to his plea withdrawal motion.

In light of the foregoing, the only meaningful remedy available is to remand this case to the trial court for a fulsome plea withdrawal hearing at which defendant is to be represented by unencumbered counsel. If, once the relevant factors are explored and determined, the trial court concludes that defendant's motion to withdraw his guilty pleas should be denied, the matter is at an end, subject to limited appellate review of that hearing only. Conversely, if, after a robust plea withdrawal hearing the trial court is of the view that defendant should be allowed to withdraw his guilty pleas, then the trial court should so order, reinstate all of the charges previously pending against defendant -- including all charges listed in both indictments as well as all of the motor vehicle summonses dismissed at sentencing -- and promptly place the case on the trial calendar. Because defendant sought to have his motion to withdraw determined before sentence was imposed, we emphasize that his application on remand must be gauged under the lesser "interests of justice" burden of proof set forth for pre-sentence plea withdrawal motions under Rule 3:9-3(e), rather than the higher "manifest injustice" burden of proof applicable to post-sentence plea withdrawal motions under Rule 3:21-1.

IV.

The judgment of the Appellate Division is reversed, and the matter is remanded to the Law Division for further proceedings consistent with the principles to which we have adverted. Jurisdiction is not retained.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, HOENS, and JUDGE STERN, temporarily assigned, join in JUSTICE RIVERA-SOTO's opinion.

SUPREME COURT OF NEW JERSEY

NO. A-13 SEPTEMBER TERM 2010

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL HAYES, Defendant-Appellant.

DECIDED March 31, 2011

Chief Justice Rabner PRESIDING

OPINION BY Justice Rivera-Soto

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

CHECKLIST REVERSE AND

REMAND

CHIEF JUSTICE RABNER X JUSTICE LONG X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE RIVERA-SOTO X

JUSTICE HOENS X

JUDGE STERN (t/a) X

TOTALS 7


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