Opinion
DOCKET NO. A-5474-11T1
12-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEMITRIUS MINOR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Simonelli, and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Camden County, Accusation Nos. 11-12-2723, 11-12-2722. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D.
Defendant Demitrius Minor was sixteen years old when he agreed to waive the jurisdiction of the Chancery Division, Family Part and plead guilty in the Law Division, Criminal Part to two accusations charging him with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and first-degree carjacking, N.J.S.A. 2C:15-2a(1)-(3). These were two unrelated offenses committed at different times and involving different victims. Under the plea agreement, the State agreed to recommend defendant serve an aggregate term of thirty years subject to the eighty-five percent parole ineligibility period and five years of parole supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
When the case came for sentencing, defense counsel indicated to the trial judge that defendant wanted to withdraw his guilty plea based on ineffective assistance of counsel. Defense counsel requested the court adjourn the sentencing hearing to allow defendant to obtain substitute counsel and secure a transcript of the plea hearing. Counsel also advised the trial judge that defendant's claims of ineffective assistance created an ethical conflict, necessitating the appointment of an independent attorney to assist defendant in presenting and arguing the motion to withdraw his guilty plea.
The trial judge declined to adjourn the matter, noting defendant had not filed a formal motion stating with particularity the underlying basis for impugning defense counsel's professional performance in this case. Based in large part on defendant's statements and deportment at the plea hearing, the judge concluded defendant's request to withdraw his plea was merely a tactic to delay the sentencing hearing. Notwithstanding defense counsel's ethical quandary, the trial judge decided to proceed with the sentencing hearing without addressing defendant's application. The court sentenced defendant, consistent with the plea agreement, to a term of thirty years on the aggravated manslaughter charge, and imposed a concurrent term of ten years on the conviction for first-degree carjacking. Both sentences were subject to the parole ineligibility restrictions and parole supervision requirements under NERA.
Defendant now appeals arguing, inter alia, that the trial judge committed reversible error in denying his request to adjourn the sentencing hearing to permit him to obtain substitute counsel and present evidence in support of his motion to withdraw his guilty plea. We agree. As the Supreme Court made clear in State v. Hayes, 205 N.J. 522, 525-26 (2011), a defendant's motion to withdraw a guilty plea requires the application of the factors in State v. Slater, 198 N.J. 145 (2009). A defendant cannot be expected to prosecute such a motion without representation by competent counsel.
Defendant's allegations of ineffective assistance of counsel as the basis for withdrawing his guilty plea created an insurmountable ethical problem for defense counsel and denied defendant his right to be represented by an independent, conflict-free attorney. We are thus compelled to remand this matter for defendant to be assigned a new attorney to represent him in his motion to withdraw his guilty plea. The trial court will decide defendant's motion applying the factors in Slater, supra, 198 N.J. at 157-58, and consistent with the standard of review the Court indicated in Hayes, supra, 205 N.J. at 542.
I
The Plea Hearing
On July 13, 2011, sixteen-year-old Demitrius Minor was arrested and charged with two separate acts of delinquency that if committed by an adult would have constituted first degree carjacking, N.J.S.A. 2C:15-2a(1)-(3), and first degree felony murder, N.J.S.A. 2C:11-3(a)(3). On December 2, 2011, defendant voluntarily elected to waive the jurisdiction of the Family Part and transfer his case to the Criminal Part, as provided under N.J.S.A. 2A:4A-27.
On that same day, the State formally charged defendant under Accusation No. 11-12-2722 with one count of first degree carjacking, and one count of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), under Accusation No. 11-12-2723. Represented by counsel assigned by the Public Defender's Office, defendant negotiated a plea agreement with the State through which he agreed to waive his constitutional right to have these charges presented to a grand jury, and pleaded guilty to both accusations. The prosecutor placed on the record before the trial judge the following description of the terms of the plea agreement:
Your Honor at this time the defendant is before the Court on two accusations. Accusation 2723-12-11, which is Aggravated Manslaughter, First Degree. As well as accusation 2722-12-11, Car-jacking [sic] First Degree. It's the State understanding at this time the - - excuse me, the adult defendant is going to be pleading guilty to both accusations.
The Plea Agreement in this matter calls for a Sentence on the Aggravated Manslaughter, 30 years New Jersey State Prison; 85 percent to be served without Parole. On the Car-
jacking [sic], the defendant is to receive 10 years New Jersey State Prison; 85 percent to be served without parole. They are run, again, to run concurrent to each other for an aggregate of 30 years New Jersey State Prison; . . . 85 percent to be served without Parole in a No Early Release Act.
(Emphasis added).
The prosecutor's characterization of defendant as an "adult" was legally incorrect. The assumption of jurisdiction by the Criminal Part under these circumstances only rendered this juvenile criminally responsible for his actions, while affording him the same panoply of procedural and substantive rights of an adult facing the same charges. This alone, however, does not change the biological reality of his youth, nor negate other legal limitations associated with his minority, such as, but not limited to, the right to vote, consume alcoholic beverages, or ability to enter into a legally binding civil contract. Stated differently, defendant was at the time a child whom, as a matter of public policy, the Legislature decided should face adult consequences for his acts, under the standards established in N.J.S.A. 2A:4A-26.
The prosecutor also apprised the trial judge that the plea forms signed by defendant indicated that "[the] juvenile agrees to waive any affirmative defenses of intoxication, or insanity/competence." Defense counsel acknowledged the accuracy of the prosecutor's recitation of the terms of the plea agreement.
The judge addressed defendant directly at the plea hearing and asked him a series of questions to determine his awareness and appreciation of the constitutional rights he was waiving under the plea agreement. The judge questioned defendant about his decision to waive his right to grand jury review and plead guilty to the two accusations, whether he understood his right to trial by jury, and whether his decision to waive these rights was made voluntarily after consulting with his attorney. Defendant answered "yes" to all these questions.
As part of this colloquy with defendant, the judge also described the plea agreement as follows:
In exchange for you waiving from the Family Court to the Criminal Court, and waiving
your right to Indictment in a trial by Jury, and pleading guilty here today to Count 1 of each accusation that charge you with the first -- crimes of Car-jacking [sic] and Aggravated, both under the No Early Release Act, that on the day of Sentencing, February 17th, 2012 at 9:00 in the morning, the Prosecutor's Office would recommend you receive a certain Sentence.
The judge also questioned defendant with respect to his interactions with his attorney:
THE COURT: Who's your attorney?
DEFENDANT: [Identified counsel by name], right here.
THE COURT: Okay. And has he answered all your questions sir?
DEFENDANT: Yes Your Honor.
THE COURT: Are you satisfied with his services?
DEFENDANT: Yes.
THE COURT: Now, sir how far have you gone in school?
DEFENDANT: All the way up to the 10th grade.
THE COURT: Okay. You know how to read and [write] sir?
DEFENDANT: Yes Your Honor.
The judge then questioned defendant concerning the "plea forms" he had signed, whether his attorney had gone over these forms with him, and if he had given his attorney "truthful answers to those questions." Defendant consistently answered "Yes Your Honor" to each of these questions. At the conclusion of this judicial interrogation that consistently yielded a quadrisyllabic response from this sixteen-year-old tenth grader, defense counsel and the trial judge proceeded to question defendant about the events that gave rise to these charges. The following exchange reflects the "leading questions" approach employed by defense counsel to obtain factual bases for both offenses:
DEFENSE COUNSEL: Thank you Judge. Demetrius [sic] were you in Gloucester Township, Camden County, on April 29th, 2011?
DEFENDANT: Yes.
DEFENSE COUNSEL: On that date did you come into contact with [names two women]?
DEFENDANT: Yes.
DEFENSE COUNSEL: At the time you came in contact with them were they in their car; a Pontiac Grand Pre?
DEFENDANT: Yes.
DEFENSE COUNSEL: And did you point a firearm? Was [names a woman] driving the vehicle?
DEFENDANT: Yes.
DEFENSE COUNSEL: Did you point a handgun at [the woman driver]?
DEFENDANT: Yes.
DEFENSE COUNSEL: Did you order the occupants of the vehicle out of the vehicle?The trial judge asked defendant the following questions at the conclusion of defense counsel's interrogation:
DEFENDANT: Yes.
DEFENSE COUNSEL: And did you then get in the vehicle and drive it away?
DEFENDANT: Yes.
DEFENSE COUNSEL: Was it your intention to return that vehicle at any point?
DEFENDANTS: No.
DEFENSE COUNSEL: So you were stealing the car; is that correct?
DEFENDANT: Yes.
THE COURT: Mr. Minor, what type of handgun was it sir?
DEFENDANT: A [G]lock.
THE COURT: A [G]lock?
DEFENDANT: Yes.
THE COURT: What millimeter sir; do you know?
DEFENDANT: A 45.
THE COURT: A 45, big gun.
DEFENDANT: Yes.
THE COURT: And you pointed that at this woman; is that correct sir?
DEFENDANT: Yes.
THE COURT: And you took her car?
DEFENDANT: Yes.
Defense counsel next questioned defendant concerning the charge of aggravated manslaughter under N.J.S.A. 2C:11-4a(1).
DEFENSE COUNSEL: Mr. Minor were you in Gloucester Township, Camden County on July 11th, 2011?
DEFENDANT: Yes.
DEFENSE COUNSEL: On that date did you come into contact with [the victim]?
DEFENDANT: Yes.
DEFENSE COUNSEL: And you knew [victim's name] from previous contact; is that correct?
DEFENDANT: Correct.
DEFENSE COUNSEL: On that date, July 11th, did you stab [the victim] repeatedly with a knife?
DEFENDANT: Yes.
DEFENSE COUNSEL: And would you agree that as a result of the injuries he sustained, he passed away, he died; is that correct?
DEFENDANT: Yes.
DEFENSE COUNSEL: Would you agree that your conduct in stabbing [the victim] repeatedly demonstrated reckless disregard for - - for - - demonstrated, manifest extreme indifference for the value of human life?
DEFENDANT: Yes.
As was the case concerning the carjacking offense, at the conclusion of defense counsel's interrogation the trial judge continued to question defendant about the facts of this particular offense:
THE COURT: Mr. Minor what that means sir, is when you stabbed him, it didn't mean anything to you whether he lived or died; do you understand that sir, that's what he's asking you?
DEFENDANT: Yes.
THE COURT: And that's what happened; is that correct sir?
DEFENDANT: Yes.
A defendant is guilty of aggravated manslaughter if he "recklessly causes death under circumstances manifesting extreme indifference to human life[.]" N.J.S.A. 2C:11-4(a)(1). "A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct." N.J.S.A. 2C:2-2(b)(3). Defendant has not challenged the adequacy of the factual basis in this appeal. We therefore express no opinion as to the legal viability or accuracy of the trial court's impromptu definition of this offense or the propriety of the manner utilized here to solicit a factual basis from this sixteen-year-old defendant. See State v. Munroe, 210 N.J. 429, 445 (2012).
At the conclusion of the plea hearing the judge indicated for the record that he was "satisfied" defendant knowingly and voluntarily waived his Constitutional rights and had given sufficient factual bases to support his guilty plea to the offenses listed in the two accusations.
II
The Sentencing Hearing
Defendant came before the court for sentencing nearly three months after the plea hearing. The trial judge began the sentencing hearing by asking defense counsel whether he had "reviewed with your client his Appeal rights and time with which he can file a petition for Post-Conviction Relief." After confirming that defendant had signed a document allegedly containing this information, and questioning defendant directly on the subject, the trial judge specifically found defendant understood his right to seek direct appellate review and "the time period in which a petition may be filed."
After resolving a discrepancy in the number of jail time credits defendant was entitled to receive under Rule 3:21-8, defense counsel addressed the trial judge as follows:
DEFENSE COUNSEL: Judge before we proceed with the Sentencing.
THE COURT: Yes.
DEFENSE COUNSEL: I have an application on behalf of Mr. Minor.
THE COURT: And what is that?
DEFENSE COUNSEL: Judge Mr. Minor has indicated to me that he wishes to file a Motion to withdraw from the Guilty Plea.
THE COURT: On what basis?
DEFENSE COUNSEL: Well his basis has [sic] expressed to me is that he had incompetent counsel at the time - - myself. This was just raised - - Well actually it was raised earlier, I thought it had been resolved.
THE COURT: Okay. Well I'll hear from Mr. Minor. Mr. Minor, I'll hear from you sir.
DEFENSE COUNSEL: Well, Judge - - frankly Judge - -
THE COURT: He told me at the time of the
Plea under oath he was satisfied with your services.
DEFENSE COUNSEL: Well I understand that Judge - -
THE COURT: What's changed?
DEFENSE COUNSEL: Judge I don't know, but it's our position that this is not the [forum] at this point in time to be arguing this Motion.
THE COURT: Well my problem is, I have no Motion before me. I have nothing to base it on, and why should we postpone this? We have all these people here ready to proceed.
DEFENSE COUNSEL: Well I understand the people are here Judge, and - -
THE COURT: The matter was originally scheduled for last week, and it was postponed, and now we're hearing this for the first time?
DEFENSE COUNSEL: It was postponed - -
THE COURT: Mr. Minor, what's this all about sir?
DEFENSE COUNSEL: It was postponed at the State's request Judge, and we had no objection to that.
THE COURT: Okay. But even so we still - - this is the first time I'm hearing this. What's it about?
DEFENSE COUNSEL: Well frankly Judge - - I did contact your chambers, and I contacted [the prosecutor] yesterday when I first heard about it by telephone.
THE COURT: Okay. But I'm trying to find out if there's any merit to it, or if it's just another delay?
DEFENSE COUNSEL: I understand Judge, but I think at this point in time we can't decide if there's any merit to it. I'm asking for an adjournment so I can order a transcript of the Plea. I know Your Honor sat and presided - -
THE COURT: I know what the Plea said.
DEFENSE COUNSEL: I have no doubt Judge.
THE COURT: What's that have to do with this . . . allegation?
DEFENSE COUNSEL: Well again Judge if you're getting into the merits of the - -
THE COURT: The transcript isn't going to change the allegation.
DEFENSE COUNSEL: Well if Your Honor is inquiring of Mr. Minor as to the merits of the allegation - -
THE COURT: Yes.
DEFENSE COUNSEL: - - I ask that he be appointed counsel, because in light of the fact that he's alleging my incompetence.
THE COURT: [Addressing another attorney we infer may have been associated with the Public Defender's Office] [D]o you want to fill in for us please?
[ATTORNEY NOT CONNECTED WITH THE CASE]: I think it has to be a Pool attorney, which [naming an attorney] would have be responsible [sic] for assigning at this point.
THE COURT: I think this is a stall. I see no merit to it. I have nothing from your client. I have no letter; anything from him. Counsel why don't you go back and let him write out in long hand anything he wants to tell me, and I'll look at it in confidence. I will not be revealing it to the public.
DEFENSE COUNSEL: Judge I think he may already have something written out.
THE COURT: Well let me look at it to see if there's any basis for it.
DEFENSE COUNSEL: Well Judge again, what a 16 or 17 year old defendant decides, as opposed to what a trained attorney decides Judge, I think he should be given that opportunity to consult with an attorney.
THE COURT: Mr. Minor is there anything further then [sic] this?
DEFENDANT: No Your Honor.
THE COURT: This is just an allegation, there's no - - How does this change anything sir?
DEFENDANT: Your Honor I feel like my Constitutional right to an - -
THE COURT: What Constitutional right sir?
DEFENDANT: My Constitutional right which is under the Sixth Amendment, to an effective counsel, attorney - -
THE COURT: Okay. You don't think you had an effective attorney sir?
DEFENDANT: No Your Honor.
THE COURT: You don't think that an attorney who got you this deal, sir you could have gotten 30 years on the Car-jacking [sic] on top of the other charge sir.
DEFENSE COUNSEL: Judge again, we're asking for an adjournment so he can prepare the Motion with counsel, rather [than] arguing the Motion today.
(Emphasis added).
At this point, the trial judge granted the prosecutor's request to place the State's position on the record.
PROSECUTOR: Thank you Your Honor. Your Honor, the State's position is it's nothing more than a delay tactic. Another term that you frequently hear in situations such as this would be [buyer's] remorse Judge.
The State's opinion is that he now is in essence disheartened by the fact that he now realizes not only the gravity of what he's done, but the gravity of what he now faces. He's accepted a Plea Agreement for 30 years Judge, and we'd ask the Court to impose that. He knew what he was doing when he pled guilty to both cases. He did so knowingly, voluntarily, and freely. His responses to the Court; his responses on the forms; his Factual [sic] was clear under oath; and there was evidence by all his statements to the Court. This Court was very detailed with him in the questioning.
There was no claim of innocence at this point.
THE COURT: There's no claim of innocence.
PROSECUTOR: Correct Judge, there's no claim of innocence. There never has been. In fact he confessed to law enforcement in a - - and he gave sworn Factual [sic] which was consistent with that.
THE COURT: Counsel I'm going to proceed. I think you can deal with this in Post Conviction Relief. There's no claiming of innocence of any type here; even in what he presented to me, there's no claim of innocence. And therefore you can deal with it on Post Conviction Relief.
The trial judge sentenced defendant consistent with the plea agreement to an aggregate term of thirty years subject to the provisions of NERA. On the conviction for aggravated manslaughter, the judge found the following aggravating factors applicable: N.J.S.A. 2C:44-1(a)(1) (finding the nature and circumstances of the offense, and the role defendant played therein, including that he committed this homicide in an especially heinous, cruel, or depraved manner); N.J.S.A. 2C:44-1(a)(3) (the risk that defendant will commit another offense); N.J.S.A. 2C:44-1(a)(9) (the need for deterring defendant and others from violating the law); and N.J.S.A. 2C:44-1(a)(12) (defendant knew or should have known the victim was sixty years old or older). The judge found mitigating factor N.J.S.A. 2C:44-1(b)(6) applied because defendant "will be reimbursing the Violent Crimes Compensation Board" for any compensation paid to the victim's family.
The judge found this aggravating factor applied because the victim was defendant's foster parent whom defendant stabbed twenty-four times while in the process of burglarizing the victim's home. According to the State, defendant killed his foster father at least in part to stop him from calling the police.
With respect to the carjacking conviction, the court sentenced defendant to a term of ten years, subject to NERA and running concurrent with the thirty-year term imposed for aggravated manslaughter. The court found aggravating factors N.J.S.A. 2C:44-1(a)(3) and (9), and mitigating factor N.J.S.A. 2C:44-1(b)(6) applied.
III
Against this record, defendant now appeals raising the following arguments:
POINT ONE
THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA WHERE, RATHER THAN GRANT A SHORT ADJOURNMENT, IT REQUIRED THE YOUNG, UNEDUCATED AND UNREPRESENTED JUVENILE TO MAKE A LEGAL ARGUMENT IN SUPPORT OF HIS REQUEST FOR RELIEF.
POINT TWO
THE TRIAL COURT DID NOT SUFFICIENTLY ADVISE THE DEFENDANT AS TO THE PENAL CONSEQUENCES UNDER NERA WHERE IT FAILED TO EXPLAIN THAT IF THE DEFENDANT VIOLATED PAROLE HE NOT ONLY
MUST RETURN TO PRISON, BUT MAY SERVE MORE TIME THAN HE BARGAINED FOR UNDER HIS ORIGINAL SENTENCE.
POINT THREE
THE JUVENILE'S STATEMENT WAS INVOLUNTARY WHERE, WITHOUT THE PRESENCE OF A PARENT OR OTHER TRUSTED ADVISOR, THE POLICE DETECTIVE INTERROGATED THE 16-YEAR OLD UNEDUCATED ACCUSED WHILE IN CUSTODY AT AN OUT-OF-STATE LOCATION DURING THE EARLY MORNING HOURS.
POINT FOUR
THE TRIAL COURT DID NOT BASE ITS FINDINGS THAT AGGRAVATING FACTORS (1) AND (12) WERE
PRESENT ON COMPETENT, CREDIBLE EVIDENCE IN THE RECORD.
We will start our analysis of the issues raised by defendant by noting that his argument in Point I mischaracterizes the actions taken by the trial court in this case. The trial judge did not deny or otherwise decide the merits of defendant's motion to withdraw his guilty plea. The record of the sentencing hearing indisputably reflects that the trial judge merely denied defense counsel's repeated requests for adjournment to permit defendant to obtain substitute counsel to assist him in presenting and arguing the motion to withdraw his guilty plea. However, as we made clear at the start of this opinion, under the Supreme Court's holding in Hayes, supra, the trial judge committed reversible error in denying defense counsel's requests to adjourn the sentencing hearing.
The defendant in Hayes was indicted by an Atlantic County Grand Jury with one count of first-degree robbery, N.J.S.A. 2C:15-1, and one count of fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). Hayes, supra, 205 N.J. at 527. The defendant retained private counsel to represent him in that matter. Ibid. "Less than two weeks after that indictment was returned and while released on bail for those charges," the defendant disobeyed an Egg Harbor Township police officer's signal to stop his car, "resulting in a car chase that at times exceeded 100 miles per hour." Ibid. When the chase finally ended, the defendant was arrested and subsequently indicted by another Atlantic County Grand Jury 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)." Ibid. On these charges, the defendant was represented by the Office of the Public Defender. Ibid.
The private counsel the defendant retained to represent him in the first indictment and the staff attorney from the Public Defender's Office assigned to represent him in the second indictment "jointly negotiated a plea agreement with the State that disposed of both indictments." Id. at 528. Both attorneys represented the defendant at the plea hearing, where the trial judge "comprehensive[ly]" examined the defendant "under oath" to ensure he understood the nature of the terms of the plea agreement. Id. at 528-29. Of particular relevance here, the trial judge in Hayes
For our purposes, it is not necessary to describe the terms of the plea agreement. In the interest of completeness, however, the defendant in Hayes pled guilty to first-degree robbery under the first indictment and to third-degree eluding under the second indictment. The State agreed to recommend a sentence of thirteen years subject to NERA on the robbery, concurrent to a five-year term on the third-degree eluding. All of the remaining charges on both indictments would be dismissed. Id. at 528.
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was assured by [the] 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.
. . . .
Throughout the entire examination under oath, [the] 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.
[Id. at 529-30 (emphasis added)].
Remarkably, despite the defendant pleading guilty to committing the crime of third-degree eluding while on bail for first-degree robbery, the trial court in Hayes released the defendant on bail pending sentencing on the two separate crimes. Id. at 530. Predictably, the defendant was arrested on new undisclosed charges before the sentencing hearing. Ibid. Similar to what occurred here with Minor, the first time the defendant in Hayes announced to the trial judge his "desire to withdraw his [guilty] pleas" was at the sentencing hearing, which the court scheduled approximately two months after the plea hearing. Ibid.
Tracking what occurred in this case almost exactly, the defendant in Hayes made an oral application to withdraw his guilty plea at the sentencing hearing "piggy-backed onto an oral request for an adjournment." Ibid. Faced with the same ethical conflict defense counsel experienced here, the privately retained attorney advised the trial judge in Hayes that he had tried unsuccessfully to find substitute counsel to represent the defendant. Id. at 530-31. Private counsel requested that the judge "postpone" the sentencing hearing "for at least two weeks" because he could not ethically argue a motion to withdraw the defendant's plea based on his own alleged incompetence at the plea hearing. Id. at 531. The Hayes Court also noted that "[f]ollowing the adjournment request made by [the] defendant's retained counsel, [the] defendant's public defender echoed the application then made." Id. at 531 n.3.
At the trial judge's invitation, the defendant in Hayes addressed the court directly and claimed he always wanted to stand for trial on the charges; he was not guilty; he was hysterical and probably "high" at the time he pled guilty; he felt pressured by the situation and was forced to plead guilty by his private counsel. Id. 532-33. The trial judge rejected the defendant's oral application. The judge found that at the time he accepted the plea the defendant was "competent to enter a plea." Id. at 533. The judge also found that the defendant "understood his rights" and "[t]here was a factual basis." Ibid.
This court affirmed the trial judge's ruling on the defendant's direct appeal. Ibid. On appeal to the Supreme Court the defendant "shifted his focus," arguing "the trial court erred when it denied his request for an adjournment to secure counsel to press the motion to withdraw his guilty pleas." Id. at 534. As framed by the defendant before the Supreme Court, "forcing him to proceed in the circumstances presented was tantamount to depriving him of the constitutionally guaranteed right to counsel[.]" Ibid.
In responding to this issue, the Court reaffirmed the long-established standard of review: "[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." Id. at 537 (quoting State v. Doro, 103 N.J.L. 88, 93 (E. & A. 1926)). In deciding whether to grant the request for adjournment to enable a defendant to obtain 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.Any lingering doubts about our Supreme Court's steadfast commitment to this standard of review were unequivocally dispelled in State v. Kates, 216 N.J. 393, 396 (2014) and State v. Miller, 216 N.J. 40, 66 (2013).
[Id. at 538 (quoting State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985))].
Applying these principles, the Court in Hayes held that when an attorney at a sentencing hearing concludes that the Rules of Professional Conduct prohibit him or her "from representing [a] defendant in respect of the motion to withdraw [a] defendant's guilty pleas, [a] defendant effectively [is] without representation, a status anathema to the fundamental constitutional notions of fairness that must guide criminal proceedings." Hayes, supra, 205 N.J. at 540. The Court in Hayes also rejected the State's harmless error argument based on the lack of any "meaningful analysis" of the defendant's oral application. Id. at 540-41. Here too, the judge did not conduct a "meaningful analysis" of defendant's oral application. Defendant was effectively without representation and it was fundamentally unfair to expect defendant to proceed without new counsel. Indeed, as ably noted by defense counsel at the time:
I think at this point in time we can't decide if there's any merit to it. I'm asking for an adjournment so I can order a transcript of the Plea.
. . . .
Well Judge again, what a 16 or 17 year old defendant decides, as opposed to what a trained attorney decides Judge, I think he should be given that opportunity to consult with an attorney.
Confronted with a strikingly similar situation, the Court in Hayes adopted the following remedy:
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 . . . 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.
[Hayes, supra, 205 N.J. at 541-42].
We discern no rational basis to deviate from this outcome here. We thus remand the matter to the trial court to implement the remedy the Court endorsed in Hayes. We do not address the reaming issues raised by defendant in this appeal because they may be rendered moot depending upon the outcome of the trial court's hearing.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION