On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-03-1441.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 2011
Before Judges Simonelli and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) and motion to withdraw his guilty plea. We affirm.
Defendant was indicted in Essex County for first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2), and weapons offenses in conjunction with the shooting death of Terrell Ward on November 2, 2000. When arrested in Union County, defendant had both the firearm used in the shooting and marijuana in his possession. He was charged in two separate Union County indictments, one charging him with various weapons and controlled dangerous substances offenses and the second charging him with certain persons not to have weapons, N.J.S.A. 2C:39-7. Defendant pled guilty pursuant to a plea agreement to aggravated manslaughter, N.J.S.A. 2C:11-4(a) (amended from the murder charge); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); possession with intent to distribute within 1,000 feet of a school zone, N.J.S.A. 2C:35-7; and possession of a weapon, N.J.S.A. 2C:39-5(b).
Defendant's sentencing was originally scheduled for November 2, 2001. At that time, defendant stated he wished to withdraw his guilty plea, have the case reassigned to another attorney and proceed to trial. The matter was adjourned so the court could be provided with a transcript of the defendant's guilty plea. The matter was rescheduled for January 8, 2002, and the court heard defendant's motion to withdraw his guilty plea.
The attorney who represented defendant at his guilty plea acknowledged defendant's allegation that he told defendant that "if he didn't plead guilty, . . . he'd never see his kids again." Defense counsel stated he did not think he used those words but said that he "did certainly give him a very dismal prospect of what would happen to him if he went to trial." Counsel outlined the State's proofs against defendant, which included identifications of defendant by two uninvolved persons after the victim was shot in the back; the fact that defendant had the murder weapon in his possession when arrested; and that he confessed to the shooting thereafter, and said that this evidence was the basis for his giving defendant the "dismal" prognosis of his prospects at trial. Defense counsel also stated that the Public Defender's Office does not pool "these kinds of proceedings out to other lawyers" and so, he was there at the direction of his office, "with [his] office fully aware of . . . whatever potential conflict there may be[.]"
At the hearing, defendant stated his attorney told him he would never see his children again and forced him into making statements at the time of his guilty plea. He stated he did not wish to be represented by the attorney because the attorney had failed to do certain things he requested and that they argued all the time. Defendant said he felt he was "better off going to trial than have him as my lawyer." The court engaged in the following colloquy with defendant:
COURT: Mr. Lee, are you prepared --will you -- are you, therefore, prepared to hire your own attorney?
DEFENDANT: Unfortunately, no, sir.
COURT: Are you prepared to represent yourself at the time of trial?
DEFENDANT: If so, I would like to have a pool attorney from the system.
COURT: You're not entitled to a pool attorney, Mr. Lee. I don't control the ...