Opinion
DOCKET NO. A-2638-11T2
09-10-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LANCE L. PHILLIPS a/k/a JOHN BENNETT, Defendant-Appellant.
Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pierce, on the brief). Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 92-07-1707. Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pierce, on the brief). Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief). PER CURIAM
Defendant Lance Phillips appeals from the June 30, 2011 Law Division order denying his application for post-conviction relief (PCR) following an evidentiary hearing. For the reasons that follow, we affirm.
I.
We derive the following facts from the record. Following a jury trial in January and February 1994, defendant was convicted of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first degree robbery, N.J.S.A. 2C:15-1 (count three); two counts of first degree attempted murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:5-1 (counts four and five); fourth degree aggravated assault, a lesser included offense of attempted murder, N.J.S.A. 2C:12-1(b)(4) (count six); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven); and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count eight).
On April 15, 1994, the trial court sentenced defendant to life imprisonment plus forty years, with fifty years of parole ineligibility. On June 29, 1999, we reversed and remanded for a new trial. State v. Phillips, 322 N.J. Super. 429 (App. Div. 1999). At that time, we summarized the relevant factual background that led to defendant's indictment:
The charges and resulting convictions stemmed from defendant's alleged participation in a murderous plot to steal cocaine from a group of drug dealers. In the early morning hours of July 21, 1991, [J.R.] and Jamal Scott were seated at the dining room table of [S.D.]'s house filling vials with crack cocaine. Also present were
[J.R.]'s sister, [C.R.], [S.D.], eleven year old [L.R.], and her younger sister [J.R.]. At approximately 3:00 a.m., defendant came to visit Scott, who displayed a bag containing a large quantity of cocaine. Defendant, in turn, showed Scott his silver forty-five caliber handgun. After staying for approximately fifteen minutes, defendant left [S.D.]'s house, only to return forty-five minutes later, but this time under less than friendly circumstances.
[C.R.] and Jamal were sitting on the porch when a late model, blue-green Honda appeared. Three masked men jumped out of the vehicle, one brandishing a silver forty-five caliber handgun. [C.R.] was able to escape unharmed by jumping over a gate and hiding in a nearby yard. Jamal ran into the house and attempted to close the door. [J.R.], who had been sleeping, awoke to see a gun slip between the door and the door frame. According to [L.R.], defendant, who had become unmasked in the struggle, pushed open the door and shot Jamal. The two other masked men then entered the house, firing their weapons at Jamal who had slumped to the floor. One of the men asked [J.R.] where the drugs were. She replied that Jamal had the drugs. The man shot and wounded [J.R.], who avoided further injury by "playing dead." [L.R.] was also shot and wounded. The assailants then made their escape with the drugs.
The police arrived at 5:00 a.m. and found Jamal fatally wounded, lying adjacent to the front door. A subsequent autopsy revealed that he died from nine gunshot wounds to his head, trunk and arm. All of the bullets recovered from the body were forty-five caliber. However, the police also discovered seven nine-millimeter shells at the murder scene.
[L.R.] was admitted to a nearby hospital, suffering from a gunshot wound to her chest. Although medicated, [L.R.] appeared coherent and was able to identify a photograph of defendant. [J.R.]'s injury was less serious. She was treated in the emergency room for a gunshot wound to her forearm, and was released the same day. [C.R.], who as we noted previously, emerged from the incident unscathed, told the police that defendant fit the description of the man who had shot her.
Defendant was immediately apprehended. Initially, defendant denied any involvement in the shooting and claimed that he "ha[d] an alibi." However, he later admitted that he conceived the plot to steal Scott's drugs shortly after visiting him at [S.D.'s] house. In his statement, defendant conceded that he, Morris Allen Jackmon, and Leonard Paulk donned black clothing and drove to [S.D.]'s residence with the intent to seal the cocaine. Defendant claimed that he was unarmed and he was unaware that his confederates possessed handguns. According to defendant's statement, he was the last to emerge from the blue-green Honda. He claimed that he "pushed" [C.R.] from the path of gunfire and then entered the house, where he saw Scott on the floor and [J.R.] attempting to crawl away. Defendant asserted that he pulled off his mask because the house was full of smoke. He admitted that he left with Jackmon and Paulk and that the three men divided the ten ounces of cocaine they had taken from the house.
[Id. at 432-34 (footnote omitted).]
The retrial was scheduled for July 16, 2001, before Judge Norman Telsey. However, on May 30, 2001, newly-retained trial counsel, Michael Milstead, filed a substitution of attorney in the Law Division. On June 12, 2001, Milstead filed a motion for an adjournment of the trial date in order to conduct additional trial preparation. In a supporting certification, he stated:
I believe that in light of the size of the file, severity of the charges and short time period for preparation (five weeks), I may not be adequately prepared to represent defendant at trial on July 16, 2001, thereby potentially rendering my assistance of counsel ineffective and in violation of Defendant's Sixth Amendment Rights.
On June 14, 2001, Judge Telsey denied the motion. In a letter opinion, he stated "[t]he fact that there are trial transcripts to read and discovery to disseminate is not persuasive. . . . [Y]ou will have forty-seven days by the time of the trial to adequately prepare your defense." Milstead moved for reconsideration, which Judge Telsey denied.
The retrial commenced on July 17, 2001. Defendant testified at trial. He admitted going to the home where the robbery occurred and speaking to Scott around midnight on July 21, 1991. However, he denied having a gun and he claimed he only stayed at the house for about fifteen minutes. He said that between 2:30 a.m. and 3:00 a.m. he went to the home of M.T., where he remained until morning. Defendant called M.T. as an alibi witness; she testified that defendant slept in her room from 3 a.m. to 10 a.m.
Defendant further testified he made up the story in his statement to the police. He explained that from his experience growing up in Camden, he was aware that often times "people go down for crimes they never committed, so I was worried about that." Defendant claimed he was basically given an ultimatum by the police to confess to a charge of robbery or they would put "the murder charge on [him]."
The jury found defendant guilty of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two), the lesser-included charge of second-degree robbery, N.J.S.A. 2C:15-1, (count three), and the lesser-included charge of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five). On September 26, 2001, Judge Telsey merged counts two and three and sentenced defendant to life imprisonment with thirty years parole ineligibility, and a consecutive term of eighteen months imprisonment without parole on count five. Defendant appealed and we affirmed. State v. Phillips, No. A-5660-01 (App. Div. Sept. 24, 2004). On January 13, 2005, the Supreme Court denied defendant's petition for certification. State v. Phillips, 182 N.J. 428 (2005) .
On September 26, 2006, defendant filed a petition for PCR based on ineffective assistance of counsel. On August 18, 2006, Milstead sent a letter to defendant's PCR counsel outlining the manner in which his counsel had been ineffective. The letter read:
Milstead averred to the identical facts in a November 3, 2008 certification filed with the court.
The purpose of my analysis is to assist in determining whether my counsel may have been rendered ineffective in any way as a result of Judge Telsey's refusal to grant a continuance. I had been hired to represent defendant approximately [three] weeks before the trial and asked Judge Telsey for more time, he denied my request.
The following are elements of the defense that may have been compromised due to my time limitations:
1. Categorically, I did not have time to engage a private investigator in time for the trial and relied upon the State's discovery and previous trial transcript.
2. [M.T.] was a defense witness that supported defendant's alibi. I presented her testimony, but was not able to prepare more for the alibi, or investigate further the availability of other witnesses.
3. Detective Kenneth Tunstall admitted in the first trial that he lied to defendant during the course of the interrogation that resulted in a confession. I was aware of this but did not have time to pursue it further with an interview of Tunstall or interview of Arthur Folks. Tunstall's testimony was read into the record. In retrospect, I should have subpoenaed him and attacked his credibility. It may have cast doubt on the confession and its reliability. Seems that the confession was the most damaging evidence presented by the State at both trials.
4. The [c]ourt admitted a prior inconsistent statement of the State's key witness [L.R.]. I never had an opportunity to interview [J.R.] or anyone in her family who was present the night of the murder. While I was able to discredit some of her testimony, she did testify that she saw defendant after his mask was removed. That testimony was severely damaging to the alibi defense. It was difficult for me to know that her 2001 testimony would differ from previous trial [testimony] without interviewing her first. I simply didn't have time to interview any witnesses.
5. Lieutenant Arthur Folks had information that the murder may have been committed by some people from New York, and he was apprised of their names. He admitted that he never pursued these individuals as suspects. With more time, I would have looked into these individuals and presented a third party guilt to the jury.
Following oral argument on July 19, 2007, the trial court denied the petition for PCR in an oral opinion, without an evidentiary hearing. Defendant appealed and on June 18, 2008, we affirmed the denial of PCR. State v. Phillips, No. A-0031-07 (App. Div. June 18, 2008) (slip op.).
Defendant subsequently filed a pro se petition for certification to the New Jersey Supreme Court. State v. Phillips, 199 N.J. 125 (2009). On April 9, 2009, the Court granted the petition and summarily remanded to the trial court, with the following instructions:
1. The trial court shall direct defendant's trial counsel to submit an
affidavit or certification addressing the issue of ineffective assistance;
2. The trial court shall thereafter schedule an evidentiary hearing limited solely to defendant's claim of ineffective assistance of counsel at this trial; and
3. The trial court shall appoint a Designated Counsel to represent defendant at the hearing and any ancillary proceedings that may be necessary to effectuate the Court's remand.
[Ibid.]
On May 2, 2011, Judge Michele M. Fox conducted the required evidentiary hearing. At the hearing, Milstead testified regarding his representation of defendant as trial counsel.
On June 30, 2011, Judge Fox denied defendant's petition and set forth her findings and conclusions in an extensive oral opinion. Judge Fox summarized the relevant parts of Milstead's testimony, where he elaborated on the five points of his November 3, 2008 certification. Judge Fox noted that, on cross-examination, Milstead admitted "his certification was incorrect in that he had been hired to represent the defendant six weeks prior to the retrial date not three weeks, as was stated in his certification." Judge Fox next considered defendant's arguments under the Strickland test for ineffective assistance of counsel. First, Judge Fox addressed defendant's argument that attorney Milstead was deficient in his representation of defendant under the first prong of Strickland. Analyzing each of Milstead's asserted instances of deficiency, Judge Fox stated:
Strickland v. Washington establishes a two-prong test for the ineffective assistance of counsel: that counsel's representation was substandard, and that the deficient performance prejudiced the outcome. Strickland v. Washington, 466 U.S. 668, 690-92, 104 S. Ct. 2052, 2066-67, 80 L. Ed. 2d 674, 695-96 (1984).
With regard to the testimony of [M.T.] in this case Milstead testified that he was unable to provide effective assistance of counsel because he was unable to hire an investigator to corroborate her alibi testimony. However, Milstead also testified that he was unaware if an individual even existed that could corroborate [M.T.'s] testimony. Thus, it is speculation that any corroboration that [M.T.] and the defendant were asleep in bed at the time the murder was committed would have been revealed with further investigation.Judge Fox concluded that Milstead's representation of the defendant constituted "reasonable professional assistance," and as such could not constitute deficient performance under the first Strickland prong.
With respect to the testimony of Detective Tunstall, Milstead testified that he was ineffective in failing to object to Tunstall's testimony from the first trial being played by tape recorder . . . at the retrial. However, Milstead also testified that he thought playing the testimony by tape . . . would present an "advantage" because Tunstall had admitted he lied at the first trial. The [c]ourt finds that this type of acknowledgement indicates that Milstead had considered the effect of replaying . . . Tunstall's testimony from
the first trial and, in effect, had decided it would be better for his client that the tape was played (sic) as discussed in Savage, . . . an informed strategic decision by an attorney is "virtually unchallengeable." Furthermore, as discussed in Cummings, . . . the specific decision to permit Tunstall's testimony to be played on the tape recorder (sic) is exactly the type of strategic decision insufficient to support a claim of ineffective assistance of counsel.
With regard to the testimony of [L.R.], the [c]ourt is not persuaded that Milstead's failure to predict the change in [L.R.'s] testimony between trials rendered his performance deficient. It is purely
speculative that even if Milstead had been able to interview [L.R.], Milstead could have known whether [L.R.] would testify that the man "was Pappa Lance" as opposed to the man "looked like Pappa Lance". Further, this specific change in testimony appears to benefit the defendant. As argued by the State "even assuming an interview of the witness would have revealed that her recollection of seeing defendant commit the crime was less certain now than it was at the time of the first trial, the State would have been able to present as it, in fact, did the witness's identification from the first trial." . . .
Finally, with respect to the alleged suspects in New York, Milstead had not a scintilla of evidence that these two individuals even existed. As argued by the State, neither Milstead nor the defendant who Milstead testified may have provided him with the information about the suspects,
have produced any information relating to these individuals to the [c]ourt. Thus, the existence of these individuals, let alone their involvement in the crime, is pure speculation.
. . . Stated simply, the defendant has failed to set forth a single credible fact that indicates how further investigation would have resulted in the discovery of significant evidence. Instead, the
defendant has procured the testimony of Milstead who in hindsight questions some of his trial strategy and testified he believed that he was ineffective. Milstead also presented speculative assertions of what he may have done if he were given more time to investigate the defendant's claim. However, even if Milstead feels as though he was deficient, his subjective belief does not impact this [c]ourt.
State v. Savage, 120 N.J. 594, 617 (1990).
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1997).
Addressing the second Strickland prong, whether defendant was prejudiced by Milstead's representation, Judge Fox first noted:
[I]n this case defense counsel argues that the [c]ourt should view Milstead's representation of the defendant as "per se" ineffective. Based upon the [c]ourt's review of the defendant's arguments and submissions the [c]ourt has inferred that defendant is alleging he was prejudiced for two reasons: (1) Milstead's failure to file an interlocutory appeal; and (2) the trial [c]ourt's failure to provide an adjournment
of his retrial date prejudiced the defendant in that Milstead was unable to adequately prepare. . . . The defendant now for the first time argues that Milstead's failure to file an interlocutory appeal resulted in prejudice against him.
Citing State v. Hayes and State v. Miller, Judge Fox concluded "the defendant has failed to set forth any evidence indicating he was prejudiced by the [c]ourt's decision [to deny an adjournment]." Judge Fox continued:
State v. Hayes, 205 N.J. 522 (2011).
State v. Miller, 420 N.J. Super. 75 (App. Div. 2011), aff'd, 216 N.J. 40 (2013).
Further, as in Miller, the defendant has had substantial opportunity to present credible evidence of the prejudice he suffered. [I]t has been ten years since the defendant's conviction at his retrial and [seventeen] years since the defendant's initial conviction. It seems fair to infer that if independent corroboration were available that it would have surfaced by now given the defendant's persistent litigation in this matter. As discussed in Hayes, [s]upra, the defendant needed to present the [c]ourt with evidence that he suffered a "manifest wrong" for the [c]ourt to review Judge Telsey's adjournment denials and find that they prejudiced the defendant. Stated simply, the defendant has had [seventeen] years to produce evidence that he was unjustly convicted, yet has failed to do so. Further, the defendant has not produced evidence that any aspect of the retrial would have been different had Milstead's request for a continuance been granted.
Lastly, Judge Fox addressed the heart of the second Strickland prong, stating:
In order to satisfy the second prong there must be a "reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different. A reasonable probability is sufficient to undermine confidence in the outcome."
Stated simply, the defendant has failed to produce any evidence to the [c]ourt that indicates that the outcome of his retrial was incorrect. Without credible evidence to consider, Milstead's testimony that he believes he was ineffective in his representation is insufficient for the [c]ourt to believe with "reasonable probability" that the defendant was unjustly convicted. For those reasons the [c]ourt holds the defendant has failed to prove by a preponderance of the evidence that he was prejudiced by Milstead's representation.
On the same date, Judge Fox entered an order denying defendant's petition for PCR. This appeal followed, with defendant raising the following points for our consideration:
POINT I:
MR. PHILLIPS WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL WAS NOT PREPARED AND DID NOT CONDUCT REQUIRED INVESTIGATIONS.
POINT II:
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE DUE TO HIS FAILURE TO FILE A MOTION TO THE APPELLATE DIVISION FOR AN INTERLOCUTORY APPEAL OF THE TRIAL COURT'S DENIAL OF HIS MOTION FOR A CONTINUANCE OF
THE TRIAL DATE. HAD COUNSEL FILED THE APPROPRIATE MOTION, THE APPELLATE DIVISION WOULD HAVE GRANTED THE APPLICATION BECAUSE THE TRIAL COURT FAILED TO ADHERE TO RULE 1:11-2(a)(2), WHICH GOVERNS THE WITHDRAWAL AND SUBSTITUTION OF DEFENSE COUNSEL AFTER THE ENTRY OF A PLEA.
We have considered defendant's arguments in light of the record, briefs submitted, and governing legal principles, and conclude they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the cogent reasons expressed by Judge Fox in her June 30, 2011 oral opinion. We add the following comments.
II.
"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).
It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result.New Jersey has adopted Strickland's two-prong test. State v. Fritz, 105 N.J. 42, 58 (1987).
[State v. L.A., 4 33 N.J. Super. 1, 13 (App. Div. 2013) (citations omitted).]
Under the first prong of the Strickland test, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing that counsel was so deficient, "counsel was not functioning as the counsel guaranteed by the Sixth Amendment . . . ." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). "This test requires [a] defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).
To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.
"A reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record." State v. Nuñez-Valdéz, 200 N.J. 129, 141 (2009). However, "we need not defer to a PCR court's interpretation of the law[,]" as all legal conclusions are reviewed de novo. Nash, supra, 212 N.J. at 540-41.
Defendant asserts Milstead failed to provide effective assistance of counsel in four areas:
A. FAILURE TO TAKE A STATEMENT FROM DETECTIVE TUNSTALL AND TO CALL HIM AS A DEFENSE WITNESS AT TRIAL.
B. FAILURE TO INTERVIEW L.R., WHO TESTIFIED AT THE FIRST TRIAL THAT SHE IDENTIFIED MR. PHILLIPS AS THE SHOOTER.
C. FAILURE TO RAISE A "THIRD-PARTY GUILT" DEFENSE.
D. FAILURE TO INVESTIGATE MR. PHILLIPS' ALIBI DEFENSE.
Regarding the failure to call Detective Tunstall as a witness, Judge Fox found this was a strategic decision and thus insufficient to support a claim of ineffective assistance of counsel. As Judge Fox noted, because Milstead stated he thought his decision at the time would "present an advantage," this decision was strategic and thus does not constitute ineffective assistance of counsel.
Regarding Milstead's failure to interview L.R., Judge Fox concluded the failure to predict L.R.'s change in testimony did not constitute ineffective assistance of counsel, noting the chance of discovering this change prior to the retrial was "purely speculative." Furthermore, the conflicting testimonies actually appear to benefit the defendant.
Regarding defendant's claim that Milstead failed to raise a "third-party guilt" defense, Judge Fox concluded this was a purely speculative assertion. Defendant argues there is a "clear link to New York that persons were arrested [for cocaine possession] and retribution would follow with the killing of Scott," but this assertion of a "clear link" is based on mere speculation. There was no evidence, besides what even defendant calls a "rumor," that someone was going to come down from New York to kill Scott. Thus, the mere rumored involvement of New York persons does not render Milstead's failure to investigate this avenue further to be ineffective assistance under Strickland.
Finally, regarding the claim that Milstead failed to investigate defendant's alibi defense, Judge Fox found that since Milstead testified he was not sure if a person even existed who could corroborate the testimony of M.T., it was merely speculative that a corroboration of the alibi could have been revealed with further investigation. Since the very existence of such a witness is so doubtful, defendant's argument that Milstead's failure to investigate further constituted ineffective assistance of counsel lacks merit.
Defendant also argues that the conviction must be reversed because counsel was per se ineffective by virtue of the lack of time to prepare for the murder trial. However, as noted by Judge Fox, "[Milstead's] subjective belief [that he needed more time to investigate] does not impact this [c]ourt."
Furthermore, Judge Fox correctly noted that this per se argument based on lack of time fails the second Strickland prong, which requires actual prejudice result from counsel's deficient effort. Judge Fox found that ten years have passed since defendant's retrial, yet no independent corroboration of the issues counsel states he would have pursued, had he more time, have surfaced. There has been no evidence to show a "reasonable probability" that the defendant was unjustly convicted. Thus, even if trial counsel was deficient under the first Strickland prong, there is no evidence to show prejudice under the second.
In his second point, defendant asserts Milstead provided ineffective assistance due to his failure to file a motion to the Appellate Division for an interlocutory appeal of the trial court's denial of his motion to postpone the trial date. Defendant also argues defense counsel failed to comply with Rule 1:11-2(a)(2), which governs substitution of attorney. Defendant argues that since trial counsel merely filed a "substitution of attorney," but did not obtain a written waiver from the State consenting to the substitution, as required by the Rule, the trial court was obligated to reject the substitution of attorney. Additionally, defendant argues that the trial court should have adjourned the trial date after receiving defense counsel's June 12, 2001 certification, stating that based on the size of the file and the time limit, counsel would potentially be rendering ineffective assistance of counsel.
Defendant further argues that, had trial counsel filed a motion for an interlocutory appeal, the "Appellate Division would have granted the application because the trial court failed to adhere to Rule 1:11-2(a)(2) and was ordering Mr. Phillips' murder trial to proceed in violation of the Sixth Amendment." Defendant cites United States v. Burton, 584 F. 2d 485, 490 (D.C. Cir. 1978), cert. denied 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979), which outlines the factors to consider in assessing a trial court's exercise of its discretion in denying a request to postpone a trial. Defendant asserts the trial court abused its discretion in denying adjournment, claiming it "did not consider the Burton factors in any fashion, and then required the unprepared attorney to try the case instead of denying the substitution of attorney . . . ." Defendant argues, "had defense counsel filed a motion with the Appellate Division for leave of court to file an interlocutory appeal, it would have been granted and the trial would have proceeded at a later date with prepared and competent counsel."
However, as the State correctly notes, this claim is procedurally barred under Rule 3:22-4 because the underlying allegation, that the trial court abused its discretion in denying the motion for a continuance, could have been raised on direct appeal, but was not. The State further notes this claim is beyond the scope of the Supreme Court's remand order, which strictly limited the evidentiary hearing "solely to defendant's claim of ineffective assistance of counsel at this trial." Moreover, defendant's assertion that an interlocutory appeal would have been successful is far from certain. The case involved a limited number of witnesses, and counsel had the benefit of trial transcripts from the first trial and a full six weeks to prepare for trial.
The State also correctly notes this claim does not satisfy the second prong of Strickland because defendant cannot make a showing of prejudice. See State v. Miller, 216 N.J. 40, 47 (2013) ("[A] trial court's abuse of discretion in denying an adjournment request does not require reversal absent a showing of prejudice.").
In sum, defendant proved neither that counsel's representation fell below an objective standard of reasonableness nor that there was a reasonable probability that but for his attorney's representation the outcome would have been different. The record fully supports Judge Fox's conclusion that defendant failed to meet the Strickland standard for PCR.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION