STATE OF NEW JERSEY v. KEVIN J. BATTLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5577-07T45577-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN J. BATTLE,

Defendant-Appellant.

_______________________________

 

Submitted March 10, 2010 - Decided

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-10-1214.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kevin J. Battle appeals the trial court's denial of his petition for post-conviction relief ("PCR").

The PCR petition related to convictions of defendant that arose out of three separate indictments in 2003. One indictment charged defendant with second-degree robbery of a retail store manager and two other indictments charged him with third-degree shoplifting.

Defendant, who is indigent, was assigned a Public Defender. Disagreements arose between defendant and his assigned attorney. Defendant requested a substitute, but the Public Defender's Office declined to provide him with a different attorney.

Prior to the scheduled trial date, defendant appeared before the trial judge, Judge Marvin E. Schlosser, in the presence of the assigned attorney. Judge Schlosser explained to defendant that he could not pick and choose his attorney from the Public Defender's Office. The judge further advised that, unless defendant retained a private attorney at his own expense, he could either represent himself or he could choose to take advantage of the advice of the assigned counsel. After considering his options, defendant agreed to authorize his assigned counsel to attempt to negotiate a plea.

After speaking further with his assigned counsel, defendant entered into what the record describes as an "open plea" of guilty to the three charges. Thereafter, the court sentenced defendant on the second-degree robbery to a custodial term of nine years, with an 85 percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also sentenced defendant to three years on each of the two shoplifting indictments, sentences which would run concurrent with one another but consecutive to the robbery sentence. The court made all three sentences consecutive to a sentence that defendant was already serving on an unrelated charge from Camden County.

Defendant filed a direct appeal of his sentence, contending it was excessive. We affirmed, but the New Jersey Supreme Court subsequently remanded the sentence to the trial court for further consideration in light of the Court's supervening opinion in State v. Natale, 184 N.J. 458 (2005). See State v. Battle, 185 N.J. 289 (2005).

Following the Natale remand, Judge Patricia R. LeBon resentenced defendant in February 2006 to the same three prison terms, but this time made them all concurrent with one another. She specified, however, that the three concurrent sentences would run consecutive to the unrelated Camden County sentence, for which defendant was already incarcerated. Defendant filed an appeal of the resentencing disposition, but he later withdrew it.

In August 2006, defendant filed a PCR application with the trial court, attempting to vacate his robbery conviction. Defendant mainly argued that he had been deprived, in various respects, of the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987)(adopting the Strickland test in New Jersey). After hearing oral argument, Judge LeBon denied the PCR application, finding no need to conduct an evidentiary hearing.

On appeal of the denial of PCR relief, defendant raises the following points for our consideration:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE PLEA WAS NOT MADE VOLUNTARILY AND KNOWINGLY.

POINT III

THE LOWER COURT ORDER MUST BE REVERSED SINCE THERE WAS NOT A SUFFICIENT FACTUAL BASIS FOR THE PLEA TO ROBBERY.

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT V

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We have considered all of these points in light of the record before us and the applicable law, and conclude that the arguments all lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2). We affirm the denial of PCR relief, substantially for the reasons articulated in Judge LeBon's well-reasoned oral opinion of February 4, 2008.

Only one point is worth amplifying. Defendant complains that his differences with his assigned trial counsel before entering his plea warranted the appointment of a substitute attorney. As the trial judge correctly pointed out to him, a defendant is not entitled, carte blanche, to his choice of attorney if he elects to have the Office of the Public Defender represent him at the taxpayers' expense. State v. Coon, 314 N.J. Super. 426, 438 (App. Div.), certif. denied, 157 N.J. 543 (1998). "The right to assigned counsel is not the right to pick an attorney of one's own choosing, nor the right to select counsel who will completely satisfy a defendant's fancy as to how he is to be represented." Ibid.

Here, the trial court manifestly was willing to allow defendant to disengage from his assigned counsel and to represent himself, pro se. Evidently, defendant had second thoughts about going it alone and agreed, as the record reflects, to allow his assigned lawyer to, as the judge phrased it, "come back in" and to attempt to "negotiate a plea." The assigned lawyer did so, and defendant thereafter clearly gave his assent in open court to the terms of the plea, acknowledging to the judge his understanding of his sentencing exposure. Defendant is very experienced in the criminal justice system, having accumulated more than two dozen prior convictions and other adverse dispositions. We detect no unfairness in the way defendant was treated, nor any unconstitutional lapse of effectiveness in the way his counsel handled the circumstances. See also Hill v. Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203, 211 (1985) (denying relief from a conviction where defendant established no prejudice arising from his voluntary entry of a guilty plea).

Affirmed.

 

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A-5577-07T4

April 12, 2010