                                NOT FOR PUBLICATION WITHOUT THE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-1720-16T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

RASHAUN A. FENTRESS, a/k/a
SHAWN B. FENTRES,
RASHUAN A. FENTRESS,
RASHAUN BAN, ZEUS FENTRESS,
RASHAUN ZUSE, and ALLAN
FRANCIS,

   Defendant-Appellant.
————————————————
        Submitted September 13, 2018 – Decided December 27, 2018

                    Before Judges Fisher and Suter.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment Nos. 14-04-
                    0706, 14-08-1356 and 14-08-1452.

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

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Lisa Sarnoff
                    Gochman, Legal Assistant, of counsel and on the brief).
PER CURIAM

      Defendant Rashaun A. Fentress appeals his September 23, 2016

judgments of conviction, claiming he did not knowingly waive his right to

counsel and was deprived of his right to represent himself, the court made an

erroneous evidentiary ruling, and his standby counsel provided ineffective

assistance, all of which deprived him of a fair trial. He also argues his sentences

were illegal on a number of grounds. The State agrees, as do we, that defendant's

sentence to a discretionary extended term and mandatory extended term in the

same proceeding violated N.J.S.A. 2C:44-5(a)(2) and requires a remand for

resentencing on the affected counts. We also agree that a remand is necessary

to conduct a hearing about defendant's ability to pay before ordering restitution.

We otherwise reject defendant's arguments and affirm his convictions and

sentences that are unaffected by the remand.

      In April 2014, Officers Michael Boone and John Sarno of the Asbury Park

Police Department were in a marked vehicle on patrol at 11:25 p.m. when

Officer Boone thought he saw the driver of a blue four-door Mazda holding a

cellphone to his ear as he slowed for a red light. Office Boone activated the

overhead lights and, although the Mazda slowed at first to pull over, the driver

made an abrupt left turn and accelerated. The officers pursued the Mazda, which


                                                                           A-1720-16T1
                                        2
reached speeds up to seventy miles per hour in a twenty-five mile per hour zone,

and made multiple turns. The officers discontinued pursuit shortly before the

Mazda collided with a taxi at an intersection. The taxi driver and his passenger

were injured. Defendant was driving the Mazda and was trapped inside it. Once

extracted, a small bag of suspected marijuana was found in defendant's clothing.

The bag was secured as evidence and testing confirmed it was 2.32 grams of

marijuana.1 Defendant's cellphone was in his left front pocket.

       Defendant was indicted under Indictment No. 14-08-1356 (Indictment two

or eluding incident) for second-degree eluding an officer and two counts of

second-degree aggravated assault by eluding (one for the taxi passenger and the

second for the taxi driver). 2 He also was charged with a disorderly persons

offense for possession of marijuana. Motor vehicle summonses were issued for

unlawful use of a cellphone, reckless driving, driving while revoked, speeding,

failing to signal and failure to stop and yield.

       The case was scheduled for trial in June 2015, but postponed to September

to address defendant's request that the court conduct an in-camera inspection of



1
    There are 28.35 grams in an ounce.
2
   Another count for third-degree theft of moveable property (the car) was
dismissed prior to trial.
                                                                        A-1720-16T1
                                         3
Officer Boone's personnel records. This delay gave defendant the opportunity

to consult with an attorney in light of his complaint to the court that he was not

"content" with the attorney assigned by the Public Defender's office to represent

him. There is nothing in the record showing that he consulted with private

counsel.

      On September 15, 2015, after conducting a hearing, the court granted

defendant's request to represent himself at the trial, which was scheduled to

commence the next day. His assigned public defender was appointed as standby

counsel. The court denied defendant's request for an adjournment. The next

day, September 16, defendant renewed his request for an adjournment—now for

a period of three days—to obtain his own cellphone and medical records. This

request was denied. The judge order the State to provide defendant's medical

records and recognized that defendant could obtain his own phone records

before the defense portion of the trial commenced.

      At the trial, standby counsel conducted the opening statement, the cross -

examination of the State's witnesses and direct examination of defendant's

witnesses.   Defendant did not testify.      Defendant conducted the closing

argument. Throughout the trial, defendant had several private conversations

with standby counsel.


                                                                          A-1720-16T1
                                        4
      Defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b),

and two counts of second-degree aggravated assault by eluding, N.J.S.A. 2C:29-

2(b). The trial judge found defendant guilty of the disorderly persons marijuana

possession offense and motor vehicle offenses—except, the judge acquitted

defendant of the unlawful use of a cellphone while driving charge because

defendant's cellphone was found in his pocket.

      Two other indictments were returned against defendant on charges

unrelated to the eluding incident and also are part of this appeal. Defendant pled

guilty under Indictment No. 14-08-1452 (Indictment three) to two third-degree

counts of distribution of CDS within 1000 feet of a school zone, N.J.S.A. 2C:35-

7, for selling cocaine to an undercover police officer on two occasions. He also

pled guilty under Indictment No. 14-04-0706 (Indictment one) to third-degree

attempted fraudulent use of a credit card, N.J.S.A. 2C:5-1; 2C:21-6(h),

admitting he attempted to use someone else's credit card at an Exxon gas station

for goods and services.

      Defendant was sentenced on Indictments one, two and three in the same

proceeding.     The court imposed an aggregate term of nineteen-years

imprisonment, with thirteen-years and seven months without parole.




                                                                          A-1720-16T1
                                        5
      On Indictment one, defendant was sentenced to an ordinary term of five

years for third-degree attempted fraudulent use of a credit card. This was

concurrent to Indictment three but consecutive to Indictment two.            On

Indictment two, involving the eluding-an-officer conviction and jury trial, the

court imposed a discretionary extended term of twelve years on his conviction

for second-degree aggravated assault on the taxi passenger by eluding, with an

eighty-five percent period without parole eligibility. The eluding-an-officer

conviction was merged into this. He received a concurrent ten-year ordinary

term on the second count of aggravated assault on the taxi driver by eluding.

Defendant's driver's license was suspended for six months for possession of

marijuana.

      On Indictment three, for two third-degree CDS distribution charges within

1000 feet of a school zone, defendant was sentenced to two concurrent

mandatory extended terms of seven-years imprisonment, with three-and-one

half years without parole.   These were consecutive to Indictment two, but

concurrent to Indictment one.

      Defendant appeals a number of issues arising from his trial and sentencing

as follows:




                                                                        A-1720-16T1
                                       6
POINT I

FENTRESS DID NOT MAKE A KNOWING AND
INTELLIGENT WAIVER OF HIS RIGHT TO
COUNSEL, RESULTING IN A STRUCTURAL
ERROR OF HIS TRIAL THAT REQUIRES
REVERSAL OF HIS CONVICTIONS. U.S. CONST.
AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1
PAR. 10.

POINT II

EVEN IF THIS COURT FINDS THAT FENTRESS
MADE A KNOWING AND VOLUNTARY WAIVER
OF HIS RIGHT TO COUNSEL, FENTRESS WAS
EFFECTIVELY     DENIED   HIS   RIGHT    TO
REPRESENT HIMSELF PRO SE BY THE TRIAL
COURT'S      REFUSAL   TO    GRANT     AN
ADJOURNMENT OF THE TRIAL DATE. U.S.
CONST. AMENDS. VI, XIV; N.J. CONST. (1947),
ART. 1 PAR. 10.

POINT III

IF THIS COURT WERE TO FIND THAT FENTRESS
MADE A KNOWING AND INTELLIGENT WAIVER
OF THE RIGHT TO COUNSEL, BUT THE COURT'S
FAILURE TO GRANT AN ADJOURNMENT DID
NOT AMOUNT TO STRUCTURAL ERROR, THE
TRIAL COURT'S REFUSAL TO GRANT AN
ADJOURNMENT OF THE TRIAL DATE AND ITS
REFUSAL TO ADDRESS FENTRESS AS PRO SE
COUNSEL, STILL ROBBED HIM OF A FAIR
TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J.
CONST. (1947), ART. 1 PAR. 10.




                                              A-1720-16T1
                     7
            POINT IV

            THE TRIAL COURT IMPROPERLY FAILED TO
            LIMIT PREJUDICIAL CUMULATIVE OTHER-
            CRIMES OR BAD ACTS EVIDENCE IN
            VIOLATION OF EVIDENCE RULE 404(B) AND
            THEREFORE VIOLATED FENTRESS' RIGHT TO A
            FAIR TRIAL.

            POINT V

            TRIAL COUNSEL WAS INEFFECTIVE BY NOT
            SEEKING TO LIMIT THE AMOUNT OF EVIDENCE
            ADMITTED    AT    TRIAL  ON    FENTRESS'
            MARIJUANA POSSESSION.

            POINT VI

            THE TRIAL COURT IMPOSED AN ILLEGAL
            SENTENCE BY COMBINING A DISCRETIONARY
            EXTENDED TERM WITH A MANDATORY
            EXTENDED TERM, IMPOSING A DRUG-LAW
            PENALTY ON A NON-DRUG LAW CONVICTION,
            AND THE REASONS FOR IMPOSITION OF
            SENTENCE WERE INADEQUATE.

                                       I.

      Defendant argues he did not make a knowing and intelligent waiver of his

right to counsel. This issue relates to his convictions under Indictment two, not

to his guilty pleas under Indictment one and three, where he was represented by

counsel from the Public Defender's office. Defendant contends the court's




                                                                         A-1720-16T1
                                       8
hearing on this issue was not adequate under State v. Crisafi, 128 N.J. 499, 509-

10 (1992) and under State v. Reddish, 181 N.J. 553, 593-95 (2004).

      We review a trial court's decision whether a defendant has knowingly,

voluntarily, and intelligently waived his right to counsel for abuse of discretion.

State v. DuBois, 189 N.J. 454, 475 (2007). "Both the United States Constitution

and our New Jersey Constitution grant defendants charged with a criminal

offense the right to have the assistance of counsel." State v. King, 210 N.J. 2,

16 (2012) (citing U.S. Const. amend. VI; N.J. Const. art. I ¶ 10). "The corollary"

to that right "is the defendant's right to represent himself." Ibid. (citing Faretta

v. California, 422 U.S. 806, 814 (1975)). Prior to permitting a defendant to

represent himself at trial, trial courts have "the duty to assure that a defendant's

waiver of counsel is made 'knowingly and intelligently.'" Id. at 18 (citing

Crisafi, 128 N.J. at 509). The inquiry must explore with a defendant:

            (1) dangers and disadvantages of self-representation;
            (2) nature of the charges against him, the statutory
            defenses to those charges, and the possible range of
            punishment; (3) technical problems he may encounter
            in acting as his own counsel and of the risks he takes if
            the defense is unsuccessful; (4) necessity that he
            conduct his defense in accordance with the relevant
            rules of criminal procedure and evidence, that a lack of
            knowledge of the law may impair his ability to defend
            himself, and that his dual role as attorney and accused
            might hamper the effectiveness of his defense; and (5)
            difficulties in acting as his own counsel and the court

                                                                            A-1720-16T1
                                         9
            should specifically advise the defendant that it would
            be unwise not to accept the assistance of counsel.

            [State v. Ortisi, 308 N.J. Super. 573, 587-88 (App. Div.
            1998) (citing Crisafi, 128 N.J. at 510-12).]

      We have carefully reviewed the transcript of the court's hearing on

defendant's request to represent himself and are satisfied the relevant issues were

addressed. The court explained the charges against defendant in Indictment two

and the elements comprising each charge.              He explained defendant's

incarceration exposure. The court explained the risks and disadvantages to

defendant of self-representation including that defendant would be waiving his

ability to pursue ineffective assistance of counsel claims post-trial. Defendant

was advised that difficulties could be presented such as arguing motions and that

his lack of legal experience could put him at a disadvantage. He understood he

needed to comply with court rules. The court explored why defendant wanted

to represent himself, asking him multiple times to explain his position to the

court "in his own words." The court explained that his assigned counsel had

significant experience, that a jury trial is "infinitely complicated" and this was

not to be "entertained lightly" because defendant was facing "very, very serious

charges."




                                                                           A-1720-16T1
                                       10
      Defendant initially claimed he did not understand how he was "waiving

his right to anything," by exercising his right to represent himself, the charges

against him or the sentencing exposure. The trial court patiently explained these

and other issues to defendant, until defendant indicated he understood. The

record amply supports that defendant knowingly, voluntarily and intelligently

waived his right to counsel after a thorough exploration with him of the ri sks of

proceeding pro se.

                                       II.

      The court made clear its intent to proceed with the jury trial. Defendant

argues that he was deprived of his ability to represent himself because the court

denied his adjournment request.

      A trial court's denial of an adjournment request is reviewed under a

deferential standard for abuse of discretion. State v. Miller, 216 N.J. 40, 65

(2013). "A motion for an adjournment implicates a trial court's authority to

control its own calendar," and courts have broad discretion on such matters.

Ibid. Only where "the judge's exercise of discretion resulted in prejudice," will

we set aside a conviction based on a judge's denial of an adjournment request.

State v. Rodriguez, 254 N.J. Super. 339, 346 (App. Div. 1992).




                                                                          A-1720-16T1
                                       11
      There was no misapplication of discretion by the trial court in denying

defendant's adjournment request. In June 2015, when trial was initially set to

begin, defendant's attorney requested, and the court granted, an adjournment to

permit the court to review in-camera certain personnel records of Officer Boone

related to the high speed chase, and then to give the parties time to review the

documents. Other pre-trial motions involving the admissibility of defendant's

statement to the police and his possession of a small amount of marijuana were

made and decided. The trial was postponed until September 15, 2015.

      When defendant waived his right to counsel on September 15, he asked to

adjourn the case but was not specific about when or why. The next day, he asked

for an adjournment for three days so he could obtain medical and phone records.

The State objected to the adjournment.

      We are satisfied there was no abuse of discretion. Although the requested

delay was for a brief period, it was for records already provided in disco very

(medical records), or available to defendant (phone records), that were not

germane to the eluding or aggravated assault charges. There was concern that

further delay would cause a witness to be unavailable. The court had appointed

standby counsel, who was familiar with the case, to assist defendant. Defendant




                                                                        A-1720-16T1
                                      12
did not assert he was prejudiced by the lack of records nor argue with any

specificity how he was prejudiced by the lack of adjournment.

                                        III.

      Standby counsel participated throughout the trial. Defendant argues that

standby counsel's presence and the court's treatment of defendant deprived him

of the ability to represent himself.

      We begin by finding no error in the court's appointment of standby

counsel, as our courts have routinely held that such appointment is proper. See

Reddish, 181 N.J. at 597. When determining whether a defendant's right to self-

representation has been respected, "the primary focus must be on whether the

defendant had a fair chance to present his case in his own way." McKaskle v.

Wiggins, 465 U.S. 168, 177 (1984). To prove that participation of standby

counsel violated a defendant's right to self-representation, "defendant must show

that the participation either (1) deprived him of actual control over the case that

he presented to the jury, or (2) destroyed the perception of the jury that defendant

was representing himself and in control of the case." State v. Davenport, 177

N.J. 288, 302-03 (2003).

      Defendant was not deprived of control over his case. The court instructed

defendant of his role as a pro se litigant, and the purpose of standby counsel.


                                                                            A-1720-16T1
                                        13
The court explained that defendant was "in charge of the strategy for this case,"

but that standby counsel was "there as an asset for [defendant]," and would assist

him "if [he] want[ed] him to cross-examine a witness [or] if [he] want[ed] him

to step in and give an opening or closing."

      Standby counsel took an active and substantial role in the trial. However,

defendant consulted privately on multiple occasions with counsel, taking full

opportunity to utilize him as a resource. The transcript supports that standby

counsel did not usurp defendant's ability to control the litigation or its strategy.

      There is no merit to defendant's argument that standby counsel's

participation destroyed the jury's perception he was pro se. The court referred

to defendant and standby counsel as the "defense" and not as "counsel." Standby

counsel made clear in his opening statement that he was there only to assist.

                                        IV.

      Defendant's appeal from his convictions under Indictment two raises an

evidentiary issue under N.J.R.E. 404(b) about the admission of other-crimes

evidence. Specifically, he argues it was error to admit evidence that his driver's

license was suspended and that he was in possession of less than an ounce of

marijuana at the time of the accident. The court gave limiting instructions to the

jury during trial and during the charge on the law making clear that this evidence


                                                                            A-1720-16T1
                                        14
was limited to the issue of motive to elude the police and could not be used to

show defendant committed other crimes or wrong acts. Defendant did not object

to the limiting instructions or charge.

      We review a trial court's determination regarding the admissibility of prior

bad acts or other-crimes evidence for abuse of discretion. State v. Covell, 157

N.J. 554, 564 (1999). "A trial court's ruling on the admissibility of evidence is

'subject to limited appellate scrutiny,'" and as such we accord a deferential

standard of review. State v. Buckley, 216 N.J. 249, 260 (2013); State v. Perry,

225 N.J. 222, 233 (2016). Only where a decision constitutes a "clear error in

judgment," will an evidentiary ruling be overturned. Perry, 225 N.J. at 233

(citing State v. Brown, 170 N.J. 138, 147 (2001)).

      Generally:

            [e]xcept as otherwise provided by Rule 608(b) evidence
            of other crimes, wrongs, or acts is not admissible to
            prove the disposition of a person in order to show that
            such person acted in conformity therewith. Such
            evidence may be admitted for other purposes, such as
            proof of motive, opportunity . . . when such matters are
            relevant to a material issue in dispute.

            [N.J.R.E. 404(b).]

      Four tests must be satisfied before such evidence is admitted against a

criminal defendant. The proponent of the evidence must demonstrate that: (1)


                                                                          A-1720-16T1
                                          15
the evidence of the other crime was relevant to a material issue; (2) it was similar

in kind and reasonably close in time to the offense charged; (3) the evidence of

the other crime was clear and convincing; and (4) the probative value of th e

evidence outweighed by its apparent prejudice. See State v. Cofield, 127 N.J.

328, 338 (1992).

      We discern no abuse of discretion; the Cofield test was satisfied. The

other-crimes evidence was limited to the issue of defendant's motive. It was

relevant to that purpose, reasonably close in time to the offense (of eluding), the

evidence was clear and convincing and any prejudice was addressed by an

appropriate limiting instruction.

                                        V.

      Defendant argues he was denied the effective assistance of counsel

because his public defender, although originally objecting to the admission of

the marijuana evidence, then agreed to it. We decline to consider defendant's

argument regarding ineffective assistance of counsel, which is more

appropriately addressed in a post-judgment petition. 3 See State v. Preciose, 129

N.J. 451, 460 (1992).



3
  We render no judgment about whether defendant can pursue post-judgment
relief having represented himself pro se.
                                                                            A-1720-16T1
                                        16
                                        VI.

      Defendant appeals his sentences on multiple grounds.                 The State

acknowledges that a remand is necessary to resentence defendant under

Indictment two and three because the trial court imposed a discretionary term

and a mandatory extended term in the same sentencing proceeding in violation

of N.J.S.A. 2C:44-5(a)(2). See State v. Robinson, 217 N.J. 594, 609-610 (2014).

The State also acknowledges that a remand is necessary under Indictment two

before restitution can be imposed, under count three. See N.J.S.A. 2C:44-2(b)

and (c). Defendant's other sentencing related arguments are without merit.

      A trial court's sentencing decision shall not be disturbed absent an abuse

of discretion or where the trial judge is clearly mistaken. State v. Fuentes, 217

N.J. 57, 70 (2014); see State v. Jabbour, 118 N.J. 1, 6 (1990). A reviewing court

"must not substitute its judgment for the sentencing court." Fuentes, 217 N.J. at

70 (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Rather, the court must:

            affirm [a] sentence unless: (1) the sentencing guidelines
            were violated; (2) the aggravating and mitigating
            factors found by the sentencing court were not based
            upon competent and credible evidence in the record; or
            (3) "the application of the guidelines to the facts of [the]
            case makes the sentence clearly unreasonable so as to
            shock the judicial conscience."

            [Ibid. (citing State v. Roth, 95 N.J. 334, 364-65
            (1984)).]

                                                                             A-1720-16T1
                                        17
       When making a determination regarding a defendant's sentence, the court

must identify the applicable aggravating and mitigating factors set forth in

N.J.S.A. 2C:44-1. R. 3:21-4(g); Fuentes, 217 N.J. at 72. The court's findings

for each factor "must be supported by 'competent, reasonably credible

evidence.'" Fuentes, 217 N.J. at 72 (citing Roth, 95 N.J. at 363).

       The court found aggravating factor three 4 (the risk that defendant would

commit another offense), six 5 (the extent of defendant's prior criminal record

and seriousness of the offense), nine 6 (the need to deter defendant and others

from violating the law), and thirteen 7 (defendant's use of a stolen motor vehicle

in attempting to flee) in sentencing defendant under the three indictments. He

found no mitigating factors. See N.J.S.A. 2C:44-1(b)(1) to (13).

       Defendant contends the court erred by finding aggravating factor thirteen.

Count one of Indictment two included the allegation that defendant was

operating a stolen motor vehicle while engaging in the criminal activity charged



4
    N.J.S.A. 2C:44-1(a)(3).
5
    N.J.S.A. 2C:44-1(a)(6).
6
    N.J.S.A. 2C:44-1(a)(9).
7
    N.J.S.A. 2C:44-1(a)(13).
                                                                          A-1720-16T1
                                       18
although it was dismissed prior to trial. The court was aware of this allegation.

Sentencing judges are not restricted to considering only facts that are found by

a jury.     See Alleyne v. United States, 570 U.S. 99, 116 (2013).         Even if

application of aggravating factor thirteen were in error, there was adequate

support for the court's application of other aggravating factors, including three,

six and nine.

        We also discern no error by the trial court in its decision not to find any

mitigating factors. Mitigating factor four 8 (substantial grounds to excuse or

justify conduct) was not raised before the trial court nor does defendant explain

how this applied. Mitigating factor two 9 (defendant did not contemplate conduct

would cause harm) did not apply because defendant should have considered that

his attempt to elude the police at seventy miles per hour in a twenty-five miles

per hour speed zone could cause or threaten serious harm. Mitigating factor

eleven 10 (imprisonment would entail excessive hardship to defendant or

dependents) did not apply because defendant lived with his sister and her



8
     N.J.S.A. 2C:44-1(b)(4).
9
     N.J.S.A. 2C:44-1(b)(2).
10
     N.J.S.A. 2C:44-1(b)(11).


                                                                           A-1720-16T1
                                        19
children; there was no proof defendant was a custodial parent of his own

children.

      Defendant was not illegally sentenced for use of a cellphone while driving.

Although the court initially imposed penalties for this, the court corrected itself

in a subsequent proceeding because the court had acquitted defendant of this

charge.

      The court did not impose the $500 Drug Enforcement and Demand

Reduction (DEDR) penalty incorrectly; it was applied to the disorderly persons

offense for possession of marijuana. There also was a $1000 DEDR penalty for

each third-degree CDS charge under Indictment three, as authorized by N.J.S.A.

2C:35-15(a)(1)(c).

      The judgment for restitution on Indictment two (14-08-1356) is reversed

and remanded for a restitution hearing.       The discretionary extended term

sentence for aggravated assault by eluding under Indictment two (14-08-1356)

and the mandatory extended term sentences for two counts of third-degree CDS

distribution under Indictment three (14-08-1452) are reversed and remanded for

resentencing. The convictions and sentences otherwise are affirmed.




                                                                           A-1720-16T1
                                       20
