STATE OF NEW JERSEY v. DESMOND D. GRIER

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2408-16T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DESMOND D. GRIER,

     Defendant-Appellant.
__________________________

              Submitted February 13, 2018 – Decided March 6, 2018

              Before Judges Gilson and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Salem County, Indictment No.
              15-10-0493.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Paul Halligan, Assistant Deputy
              Public Defender, of counsel and on the brief).

              John T. Lenahan, Salem County Prosecutor,
              attorney for respondent (David M. Galemba,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Desmond D. Grier appeals from his conviction for

third-degree possession of a controlled dangerous substance (CDS),

N.J.S.A. 2C:35-10(a)(1), and resulting sentence to an extended-

term of eight years in prison.        We affirm.

      The issue before this court on defendant's appeal is twofold.

First,   whether     defendant's   Sixth    Amendment    right    to     self-

representation was violated, warranting reversal of his conviction

and remanding the matter for a new trial.             Second, whether the

trial judge engaged in impermissible judicial fact-finding by

imposing an extended-term sentence.

      Defendant's behavior throughout his prior trial and the trial

in this case was inordinately disruptive.           The transcripts of the

court proceedings are replete with defendant's baseless statements

and accusations challenging the court's lack of authority to

proceed with his case.      Defendant spoke over the judge on numerous

occasions and repeatedly interrupted the judge during the court

proceedings.       The    trial    judge    noted    defendant     was      "an

obstructionist and . . . continued to obstruct these proceedings."

The judge exercised tremendous patience and showed the utmost

courtesy toward defendant despite defendant's barrage of unruly

and   unintelligible     objections   and   comments.     The    judge     gave

defendant every opportunity to comport his behavior with proper

courtroom decorum in order to represent himself at trial, and

expressly   warned     defendant   that     his   continued     obstreperous

behavior would result in his removal from the courtroom.

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     Defendant   steadfastly    refused    to   follow   the   judge's

instructions, talked over the judge, declined to answer the judge's

questions regarding jury selection and trial preparation, and

objected without reason or basis.     The judge determined that these

repeated   behaviors   demonstrated   defendant's   clear   intent     to

undermine the trial.     The judge ultimately found defendant was

going to "continue his vexatious behavior" and "abuse the dignity

of [the] courtroom and . . . the process."           As a result of

defendant's conduct during his court appearances, the judge found

defendant was abusing his right to represent himself by interfering

with the orderly proceedings of the trial.

     Based on defendant's actions, the judge ordered him removed

from the courtroom.    The judge arranged for defendant to view the

trial and listen to the sidebar discussions by video feed.

     The trial proceeded with defendant absent from the courtroom.

Defendant's counsel, assigned by the Office of the Public Defender,

represented defendant's interests throughout the trial.        The jury

found defendant guilty of possession of CDS.

     Prior to sentencing, the State moved to impose an extended-

term of imprisonment.      After reviewing the motion papers and

hearing the arguments of counsel, the judge granted the State's

motion for an extended-term, and sentenced defendant to an eight-

year term of imprisonment.

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     On appeal, defendant argues:

          POINT I

          THE TRIAL COURT VIOLATED GRIER'S SIXTH
          AMENDMENT RIGHT TO COUNSEL BY FAILING TO HOLD
          A HEARING ON WHETHER GRIER WAS COMPET[E]NT TO
          SERVE AS HIS OWN ATTORNEY.       ACCORDINGLY,
          GRIER'S CONVICTION MUST BE REVERSED AND THE
          MATTER REMANDED FOR A NEW TRIAL. U.S. CONST.,
          AMENDS. VI AND [XIV]; [N.J.] CONST., ART. 1,
          ¶10. (NOT RAISED BELOW)

          POINT II

          GRIER'S SENTENCE MUST BE VACATED AND THE CASE
          REMANDED FOR RESENTENCING BECAUSE THE TRIAL
          COURT ENGAGED IN IMPERMISSIBLE JUDICIAL FACT-
          FINDING WHEN IT IMPOSED AN EXTENDED TERM
          SENTENCE ON GRIER'S CONVICTION FOR POSSESSION
          OF COCAINE IN VIOLATION OF THE SIXTH AMENDMENT
          OF THE UNITED STATES CONST[ITUTION].      (NOT
          RAISED BELOW)

                                  I.

     We review a trial judge's decision regarding a defendant's

ability to represent himself during a criminal trial for abuse of

discretion. State v. Buhl, 
269 N.J. Super. 344, 364 (App. Div.

1994); see also State v. DuBois, 
189 N.J. 454, 462-63 (2007).         The

Sixth   Amendment    grants   a   defendant   the   right   to     self-

representation in a criminal proceeding.      State v. Gallagher, 
274 N.J. Super. 285, 294-95 (App. Div. 1994).      However, the right of

self-representation does not provide "a license to abuse the

dignity of the courtroom" or the right to refuse "to comply with



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relevant rules of procedural and substantive law."                             Faretta v.

California, 
422 U.S. 806, 834 n.46 (1975).

     Here, defendant refused to answer the judge's questions on

relevant   topics,       interrupted     and       spoke    over    the        judge,   and

expressed a lack of understanding as to legal proceedings and the

nature    of   the   charges     against      him.         Based    on     the    judge's

observations of defendant's disruptive behavior during each court

proceeding,    the   judge      found   that       defendant       was    incapable       of

representing himself.

     In    reviewing      the   record,       we    find    the     judge       correctly

"terminate[d] self-representation by a defendant who deliberately

engage[d] in serious and obstructionist [behavior]."                             State v.

Drew, 
383 N.J. Super. 185, 200 (App. Div. 2006) (third alteration

in original) (quoting Faretta, 
422 U.S.  at 834 n.46) (holding

termination of defendant's self-representation was proper where

defendant continually misbehaved, made faces, was loud, and argued

with the judge).

                                        II.

     We    review    a    judge's   sentencing         decision          for    abuse     of

discretion. State v. Bolvito, 
217 N.J. 221, 228 (2014). Defendant

argues that the judge failed to engage in the analysis prescribed

in State v. Pierce, 
188 N.J. 155, 168 (2006), and State v. Dunbar,


108 N.J. 80, 89-91 (1987), for imposing an extended-term.

                                          5                                        A-2408-16T1
     We reject these arguments and affirm defendant's sentence.

The judge provided ample reasons for the imposition of an extended-

term sentence.     The judge also performed the required analysis in

imposing     the   extended-term   sentence.      The   judge     properly

considered defendant's disruptive courtroom behaviors and belief

that the law does not apply to him in connection with aggravating

factor three, the likelihood that defendant would reoffend.             The

record further supports the judge's consideration of defendant's

prior record, consistent with his being a persistent offender, in

imposing an extended-term sentence.       Thus, we find no abuse of

discretion    or   impermissible   fact-finding    in   support    of     an

extended-term.

     Affirmed.




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