July 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARVIN NEWELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-06-0781.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 29, 2011
Before Judges Yannotti and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
On the day his case was scheduled to go to trial, defendant pled guilty without a plea agreement to one count of first-degree carjacking, N.J.S.A. 2C:15-2(a)(1); one count of second-degree robbery, N.J.S.A. 2C:15-1(a)(1); and one count of second-degree eluding, N.J.S.A. 2C:29-2(b). The sentencing court imposed an aggregate sentence of thirteen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on September 12, 2003.
In his direct appeal, defendant argued the judge erred in denying his request for an adjournment of the trial and that the sentence imposed was excessive. As set forth in greater detail in the unpublished opinion in which we affirmed defendant's convictions and sentence, State v. Newell, No. A-1535-03 (App. Div. Aug. 4, 2005), defendant was assigned counsel from the Public Defender's Office in April 2002. He was initially unable to post bail. When he secured his release in December 2002, he became employed but continued to be represented by a public defender. As late as the pretrial conference a few days before the June 3, 2003 trial date, defendant was represented by the Public Defender's Office and no issue was raised about defendant securing private counsel. On the Friday before the trial date, defendant decided to retain private counsel. Defendant's private counsel appeared in court on Monday, June 2, the day before the trial date, and requested an adjournment of at least one month to prepare for trial. The judge denied the application and directed the parties to return in the morning for jury selection. On the following day, defendant entered a guilty plea, represented by the public defender who had represented him since April 2002.
We concluded that the trial judge did not abuse his discretion in denying defendant's adjournment request. We stated, "Defendant was not reasonably diligent in his efforts to retain private counsel." We observed there was "abundant evidence" that "throughout the proceedings, [the public defender] faithfully and ably represented defendant's interests and that he was fully prepared to proceed to trial as evidenced by the proceedings on June 3, 2003, during which he demonstrated a thorough knowledge of the issues in dispute."
Defendant's petition for certification was denied. State v. Newell, 187 N.J. 79 (2006).
Defendant filed a PCR petition on September 12, 2008, in which he argued he was denied the effective assistance of counsel; the trial court denied him due process by failing to provide a Wade*fn1 hearing; and the trial court failed to properly find and consider mitigating and aggravating sentencing factors. Defendant also prepared a pro se memorandum of law in support of his petition, along with a certification dated June 11, 2009, in which he argued that he was denied effective assistance of counsel because his attorney failed to pursue deficiencies in the evidence and request discoverable evidence.
Counsel provided a supplemental brief on defendant's behalf in support of his PCR petition. In this brief, defendant raised additional claims: that he was denied effective assistance of counsel because his attorney failed to argue effectively at sentencing and failed to request a Wade hearing; that his plea was not knowingly, voluntarily, and intelligently given; and that the time bar of R. 3:22-4 concerning the opportunity to raise certain issues does not apply to his case.
The PCR court denied defendant's petition by order dated August 6, 2009. The court found that there had "been no showing . . . whatsoever" that defendant received ineffective assistance of counsel.
Defendant presents the following issues for our consideration in his appeal.
POINT I THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HIS GUILTY PLEA WAS NOT FREELY AND VOLUNTARILY ENTERED ONCE THE TRIAL COURT DENIED HIS REQUEST TO SUBSTITUTE PRIVATE COUNSEL FOR ASSIGNED COUNSEL THE DAY BEFORE THE TRIAL WAS SCHEDULED TO BEGIN POINT II RULE 3:22-4 DID NOT PRECLUDE THE TRIAL COURT FROM ADJUDICATING THE MERITS OF THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON A SUBSTANTIVE BASIS
Plaintiff filed a pro se supplemental brief in which he presents the following argument:
UNDER THE FOURTEENTH AMENDMENT EVERYONE IS GUARANTEED THE RIGHT TO DUE PROCESS UNDER THE LAW [AND] ALSO GUARANTEED TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT UNDER THE EIGHTH AMENDMENT THROUGH THE FOURTEENTH AMENDMENT
After carefully reviewing the record, briefs of counsel and petitioner's pro se brief, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant argues that the circumstances of the denial of his request for an adjournment precluded a voluntary plea because he felt he had no choice except to enter a guilty plea at that point. To the extent defendant argues that he was prejudiced by the denial of his adjournment request, defendant's argument re-visits the argument made and rejected in his direct appeal, and is procedurally barred by Rule 3:22-5, which states:
A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.
To the extent defendant now argues he should be permitted to withdraw his guilty plea, this is an issue that could have been raised in his direct appeal and is therefore procedurally barred by Rule 3:22-4(a)(1). Moreover, defendant has not affirmatively asserted his innocence, a significant factor in a determination as to whether a defendant may withdraw his guilty plea. See State v. Slater, 198 N.J. 145 (2009).
Finally, although defendant does not argue that his trial counsel's performance was inadequate, we observe in conclusion that, in our unpublished opinion in his direct appeal, we noted that the public defender representing defendant "faithfully and ably represented defendant's interests and that he was fully prepared to proceed to trial[.]"