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State v. Kittrell

December 1, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HARRY KITTRELL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 91-12-1310.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 21, 2008

Before Judges Wefing and LeWinn.

Defendant appeals from the May 25, 2006 order of the trial court denying his petition for post-conviction relief (PCR). We reverse.

On September 22, 1992, a jury convicted defendant of five drug-related offenses. On December 18, 1992, defendant was sentenced to an aggregate term of sixty years with a thirty-year period of parole ineligibility.

Defendant appealed, raising claims of trial error, excessive sentence and ineffective assistance of trial counsel. In an unreported opinion, we affirmed defendant's convictions, rejected his claims of ineffective assistance of counsel and remanded for resentencing. State v. Kittrell, No. A-4711-92 (App. Div. June 20, 1995). Pursuant to that remand, on October 5, 1995, defendant was resentenced to an aggregate term of fifty years with a seventeen-year period of parole ineligibility. The New Jersey Supreme Court granted defendant's petition for certification and, on July 3, 1996, affirmed our decision. State v. Kittrell, 145 N.J. 112 (1996).

Defendant filed his PCR petition on June 28, 2001, alleging ineffective assistance of trial and appellate counsel. For reasons not clear in the record, defendant's petition received no attention until March 2, 2005, when the trial court entered an order denying that petition as time-barred under Rule 3:22-12.

Defendant appealed this order and, on September 2, 2005, we ordered a remand "for the assignment of counsel and reconsideration of the petition for post-conviction relief[,]" stating, "[c]counsel can assert why the petition should not considered time barred."

On February 8, 2006, the PCR judge held a hearing pursuant to our remand order and established a timetable for the submission of briefs and oral argument. The judge provided defense counsel with additional time to prepare, as counsel had "just got[ten] the case assigned to [him]" and he was still awaiting receipt of defendant's files.

The PCR judge stated that he "[had] to give... counsel for [defendant] the opportunity to show... why [the PCR petition was] not time barred." The judge stated further, "[I]f I decide it's not [time barred], then obviously [defendant's]... petition can continue. If I decide it is time barred, then that would end it...." Throughout the February 8 hearing, the judge reiterated that the only issue to be presented at the next-scheduled argument date would be whether the PCR petition was time barred.

The parties thereafter submitted letter briefs to the trial judge, pursuant to the established schedule. Defendant primarily addressed the time bar issue, but included a brief argument that his ineffective assistance of counsel claim was "viable." Likewise, the State's brief primarily addressed the time bar issue, but included a brief response to defendant's ineffective assistance of counsel argument.

The PCR judge held a second hearing on May 22, 2006. After entertaining limited argument from counsel, the trial judge found that defendant's PCR petition was not time barred. The judge then engaged defense counsel in a colloquy as to whether defendant had made a prima facie showing of ineffective assistance of counsel to warrant a plenary hearing pursuant to State v. Preciose, 129 N.J. 451 (1992). Defense counsel stated that he was prepared only to address the time bar issue, as he understood the judge's directions at the February 8 hearing, and that counsel needed more time to "delve... into the case" to address the need for a prima facie showing of ineffective assistance of counsel.

The judge remarked that defendant's trial counsel "did a yeoman's job for this defendant," adding that "counsel below functioned in my opinion as an attorney in good standing, reasonably, prudently representing this particular defendant to the best of his ability. And in my opinion did nothing to require a plenary hearing...." The judge thereupon concluded that "there's no reason... to order a ...


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