Submitted April 10, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-03-0262.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).
Before Judges Axelrad, Sapp-Peterson and Haas.
Defendant appeals from the trial court order denying his motion to adjourn his sentencing in two indictments. We consider the recurring dilemma confronting trial courts when a defendant expresses dissatisfaction with representation by current counsel at sentencing after the court has denied an adjournment request to obtain new counsel. The court placed on the record strong and sustainable reasons justifying denial of the adjournment request. However, because the court failed to address defense counsel's perceived conflict in his continued representation of defendant, we are constrained to vacate the sentence and remand.
Defendant faced prosecution on two indictments for which, if convicted, he could serve in excess of twenty years in prison with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On July 26, 2010, as a result of plea negotiations, defendant pled guilty to one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), under Indictment No. 08-10-915. Under Indictment No. 10-03-262, defendant pled guilty to four counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); one count of second-degree theft by extortion, N.J.S.A. 2C:20-5; and one count of third-degree terroristic threats, N.J.S.A. 2C:12-3(a) and/or (b). The State recommended an aggregate twenty-year custodial sentence, with an 85% period of parole ineligibility pursuant to NERA. In addition, the agreement included an evaluation at the Avenel Adult Diagnostic Treatment Center, no contact with the victim and the victim's family, HIV/AIDS testing, Megan's Law supervision, parole supervision for life, DNA testing and appropriate fines and penalties.
More than six months later, on February 18, 2011, defendant appeared for sentencing, at which time he requested an adjournment in order to file a motion to withdraw his guilty pleas. Defendant advised the court that his family was in the process of retaining new counsel and he wanted to withdraw his guilty pleas. The court noted that sentencing had previously been adjourned for two weeks because defendant wanted to speak to federal agents concerning an alleged Caribbean drug cartel about which he had information. Defendant also told the court his new attorney was Carlos Piernos from Florida, who had attempted to contact his trial counsel. When the prosecutor proposed that the court attempt to reach out to Piernos, defendant advised that Piernos was not actually his attorney, but was attempting, on behalf of his family, to secure new counsel for him. The court responded:
THE COURT: Okay. I'm not prepared to adjourn the sentencing any longer. We've had since July. You had all of this time to contact another lawyer to do whatever had to be done on this case. Nothing that you've said addressed this case. It addresses some other factors that you're trying to see if you can get some credit.
The Prosecutor has already said that no matter what you do on the other case[, ] they're not going to give any credit on this case. So I'm ready to proceed with sentencing.
Having denied the adjournment request, the court then proceeded to conduct the sentencing hearing, asking defendant whether he had anything to say, to which defendant responded, "Your Honor, right now I cannot accept my sentence because I don't think that I have legal representation at this moment." The court thanked defendant and then inquired whether there was anything else. Defense counsel stated:
[DEFENSE COUNSEL]: Your Honor, I feel like I'm in a conflict here because the client is saying he doesn't want me to represent him. He won't cooperate now with sentencing to go over the presentence report, Your Honor.
And I think in the best – since his pre-sentencing he's made this request for a new attorney, I'd like to send this back to the Public Defender's Office so they could ...