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State v. Hicks

January 22, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK HICKS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-09-1516.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted December 8, 2009

Before Judges Skillman, Fuentes and Gilroy.

Defendant Mark Hicks appeals from the order of the Law Division, Criminal Part, denying his petition for post conviction relief (PCR). Based on the record before us, we are compelled to remand this matter for a new hearing.

On May 29, 2002, defendant pled guilty to one count of first degree aggravated manslaughter under N.J.S.A. 2C:11-4, as a lesser included offense of murder under N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2), for causing the death of a two-year-old boy.*fn1

Consistent with the terms of a negotiated plea agreement between defendant and the State, the court sentenced defendant on August 8, 2002, to a term of fifteen years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant filed a direct appeal challenging the sentence as excessive. We affirmed the sentence in the context of an Excessive Sentence Oral Argument Calendar. R. 2:9-11. State v. Hicks, A-3420-03 (App. Div. Mar. 9, 2006). The Supreme Court denied defendant's petition for certification. State v. Hicks, 188 N.J. 217 (2006).

On October 31, 2006, defendant filed a pro se PCR petition under Rule 3:22-7, alleging ineffective assistance of trial and appellate counsel and claiming that the factual basis he gave was insufficient to support a conviction for aggravated manslaughter. The petition was supported by defendant's pro se brief. On December 4, 2006, the trial court directed the Office of the Public Defender to assign counsel to represent defendant in the prosecution of the petition.

The matter came before the trial court on July 11, 2007. Assigned counsel appeared on behalf of defendant and argued the two bases for relief listed by defendant in his pro se PCR petition and supporting pro se brief. Counsel did not file his own brief in support of defendant's petition, nor is there any indication that counsel personally and independently reviewed defendant's file to ascertain the availability of any other grounds for relief.

After considering the argument of counsel, the trial court denied defendant's petition, finding no legal basis to disturb defendant's conviction and sentence. The court explained its ruling in a comprehensive memorandum of opinion, in which it thoroughly reviewed the record leading to defendant's decision to accept the State's plea offer and the factual basis he gave to sustain his guilty plea to first degree aggravated manslaughter.

Against this record, defendant now appeals, raising the following arguments.

POINT ONE

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATION TO ...


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