August 9, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALMAHDEE JEFFERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-06-2514.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010
Before Judges Cuff and Sapp-Peterson.
Almahdee Jefferson appeals from the trial court order denying his petition for post-conviction relief (PCR). We affirm.
A jury convicted defendant of third-degree attempted theft, N.J.S.A. 2C:20-3a and N.J.S.A. 2C:5-1, as well as second-degree use of a juvenile in the theft of an automobile, N.J.S.A. 2C:20-17a. The court sentenced defendant to an eight-year custodial term. Defendant appealed, claiming the trial court should have granted a judgment of acquittal because the State failed to prove beyond a reasonable doubt that he used a juvenile in the theft of an automobile, the trial court erred in refusing to instruct the jury on cross-racial identification, and the trial court abused its discretion in imposing an eight-year custodial term. In an unpublished opinion, we affirmed the judgment of conviction and sentence imposed. State v. Jefferson, No. A-65-03 (App. Div. June 11, 2004). The Supreme Court denied defendant's petition for certification. State v. Jefferson, 182 N.J. 141 (2004).
On December 19, 2006, defendant filed a pro se PCR petition, and upon appointment of counsel, an amended verified PCR petition was filed. Defendant claimed that he was denied his Sixth Amendment right to counsel of his choosing and that he was sentenced above the presumptive sentence contrary to State v. Natale, 184 N.J. 458 (2005).
The PCR judge conducted oral argument and thereafter issued a written opinion denying defendant's petition. The judge first rejected defendant's contention that he was wrongfully denied his right to counsel during his trial, concluding there was no basis to have removed assigned counsel "[s]imply because [p]petitioner disagreed with his assigned trial attorney's strategies" and the fact that petitioner "was generally dissatisfied does not mean the [c]court must allow [p]petitioner to choose an attorney who will satisfy his every whim." The court also observed that defendant's first request to change his attorney was made on the first day of trial. The court concluded that defendant had "ample opportunity to obtain counsel of his choice prior to trial[,] and allowing [p]petitioner an adjournment after the commencement of his trial would have been an unnecessary as well as disruptive delay."
On appeal defendant raises the following points for our consideration:
THE LOWER COURT ORDER MUST BE REVERSED BECAUSE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE REPRESENTED BY AN ATTORNEY OF HIS CHOICE.
THE LOWER COURT ORDER MUST BE REVERSED SINCE THE TRIAL COURT FAILED TO HOLD A HEARING TO DETERMINE WHETHER DEFENDANT SHOULD HAVE BEEN ALLOWED TO FIRE ASSIGNED COUNSEL AND TO RETAIN PRIVATE COUNSEL.
THE LOWER COURT ERRED IN NOT CONDUCTING AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We have considered each of these points in light of the record, the applicable law, and arguments advanced, and we are satisfied that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons expressed in Judge Michael L. Ravin's August 25, 2008 written opinion. We add the following comments.
Although the right to have the assistance of counsel is guaranteed by both the federal and state constitutions, State v. Fusco, 93 N.J. 578, 583 (1983), the right to retain counsel of one's own choice is not absolute and "'cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice and deprive such courts of the exercise of their inherent powers to control the same.'"
State v. Furguson, 198 N.J. Super. 395, 401 (App. Div.) (quoting Smith v. United States, 288 F. 259, 261 (D.C. Cir. 1923)), certif. denied, 101 N.J. 266 (1985). Rather, a defendant must act with reasonable diligence when exercising the right to choose his or her own counsel. Furguson, supra, 198 N.J. Super. at 401; State v. McCombs, 171 N.J. Super. 161, 165 (App. Div. 1978), aff'd, 81 N.J. 373 (1979). [State v. McLaughlin, 310 N.J. Super. 242, 258-59 (App. Div.), certif. denied, 156 N.J. 381 (1998).]
Here, defendant was arrested on October 11, 2001 in connection with the attempted theft of an automobile. An EsseX County grand jury indicted defendant on June 26, 2002. The court conducted a Miranda*fn1 hearing on April 29, 2003, and at its conclusion on April 30, proceeded with jury selection. Although defendant represented to the court on April 29 that he had not received discovery, trial counsel disputed this contention and advised the court that defendant received discovery a second time that very day, in the morning, and had the entire morning to review the materials.
Assuming the court erred in accepting trial counsel's representation that discovery had previously been provided and was again provided on the morning of April 29, we find no basis to reverse the denial of defendant's PCR petition on the ground that defendant failed to receive discovery in a timely manner. Neither before the PCR judge nor before this court has defendant put forth any facts from which this court could conclude that the failure, as defendant alleged, to receive any discovery until several hours before the Miranda hearing prejudiced his defense and deprived him of a fair trial. State v. Goodwin, 173 N.J. 583, 601 (2002).
On the morning of May 1, the court empanelled the jury. It then heard oral argument on defendant's motion to suppress and denied the motion. The court recessed for lunch, and when court resumed later in the afternoon, defendant, for the first time, expressed his desire to retain private counsel because he claimed that he was being forced to trial, not being permitted to take part in his own defense, not being allowed to say anything, and assigned a public defender who he believed was not working in his best interest. Defendant advised the court that he wanted to replace assigned counsel with privately retained counsel and that his "family is going to pay for it."
If a defendant fails to act with reasonable diligence in securing counsel, the trial court has the power to "do what is reasonably necessary to meet the situation." State v. Yormark, 117 N.J. Super. 315, 340 (App. Div. 1971), modified in part on other grounds, State v. Mulvaney, 61 N.J. 202, cert. denied, 409 U.S. 862, 93 S. Ct. 151, 34 L. Ed. 2d 109 (1972). This is because [t]he efficient administration of justice without unreasonable delay has great force and effect. The public has a strong interest in the prompt and effective operation of its judicial institutions. A trial court therefore must have the power to tightly control its own calendar so that the assignment of cases cannot be manipulated by the defense counsel or the defendant. [Furguson, supra, 198 N.J. Super. at 401.]
Consequently, 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." Furguson, supra, 198 N.J. Super. at 402. [McLaughlin, supra, 310 N.J. Super. at 259.]
The record demonstrates that plaintiff had ample time to retain private counsel and his delay in seeking to retain private counsel until after the trial commenced was reflective of defendant's attempt to "disrupt and delay the judicial process." State v. Reddy, 137 N.J. Super. 32, 35-36 (App. Div. 1975).
Rule 3:22-1, which governs PCR proceedings, does not require that an evidentiary hearing be granted in every PCR proceeding. State v. Preciose, 129 N.J. 451, 462 (1992). The decision to do so is discretionary with the trial court. Ibid. Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Because the record here was sufficient to afford the court an opportunity to fairly consider defendant's contentions, Judge Ravin did not abuse his discretion when he denied defendant's petition without first conducting an evidentiary hearing. Preciose, supra, 129 N.J. at 462.