On appeal from Superior Court of New Jersey, Law Division, Camden County, No. 95-04-0862.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2009
Before Judges Wefing and Messano.
A jury convicted defendant in 1997 of murder, N.J.S.A. 2C:11-3(a)(1)(2); felony murder, N.J.S.A. 2C:11-3(a)(3); robbery while armed, N.J.S.A. 2C:15-1; burglary, N.J.S.A. 2C:18-2; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). At sentencing, the trial court merged the conviction for felony murder into the conviction for murder and sentenced defendant to life in prison, with a thirty-year period of parole ineligibility. It also sentenced defendant to a consecutive five-year term, with two and one-half years of parole ineligibility, for unlawful possession of a weapon. All other sentences were concurrent. Defendant appealed to this court, and we affirmed in an unpublished opinion, State v. McCargo, No. A-0998-98T4 (App. Div. Nov. 21, 2000). The Supreme Court denied defendant's petition for certification. 167 N.J. 634 (2001).
In 2001, defendant filed a timely petition for post-conviction relief. The matter was presented to the trial court in 2007. The record before us does not disclose the reason for this six-year delay in hearing defendant's petition. After hearing oral argument, the trial court denied defendant's petition without conducting an evidentiary hearing.
Defendant has appealed from the order denying his petition and raised the following issues.
THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HIS POST-CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT HIM.
BECAUSE DEFENDANT RAISES ISSUES OF CONSTITUTIONAL MAGNITUDE, HIS PETITION FOR POST-CONVICTION RELIEF SHOULD NOT HAVE BEEN DISMISSED. U.S. CONST. AMENDS. VI, XIV: N.J. CONST. ART I, PARS. 1, 10.
After reviewing the record in light of the contentions advanced on appeal, we reverse and ...