On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-01-0479.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Messano.
"During what began as a drug buy, defendant Demitrius Middleton placed a gun to the temple of Shazam Tahir and pulled the trigger, killing him." State v. Middleton, No. A-4239-99 (App. Div. Nov. 29, 2001) (slip op. at 1), certif. denied, 171 N.J. 337 (2002). In March 1999, defendant and his co-defendant Kasib Jones were tried to a jury on a thirteen-count indictment. Defendant was charged in nine of the counts. He was acquitted on four counts, but the jury was unable to reach a verdict on the remaining five counts. Beginning in October 1999, defendant was retried on three of the five remaining counts; the other two were dismissed prior to trial. Id. at 2-3.
In November 1999, the second jury found defendant guilty of murder, N.J.S.A. 2C:11-3a(1)-(2); possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and possession of a handgun with the purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4a. Defendant was sentenced to a fifty-year term of incarceration subject to periods of parole ineligibility and supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judgment of conviction and sentence was entered on December 17, 1999. On direct appeal, we affirmed defendant's convictions. Id. at 19.*fn1 The Supreme Court denied defendant's petition for certification. 171 N.J. at 337.
The issues raised on this appeal do not require a reiteration of the facts. They are set forth in our prior opinion. Middleton, supra, slip op. at 5-9.
It is not clear whether defendant first filed his petition for post-conviction relief on December 24, 2002 - the filing date stated by defendant in a letter he purportedly wrote to the judge on February 10, 2003 - or September 7, 2006 - the date on which defendant's verified pro se petition, which is dated May 8, 2006, was stamped filed. The trial judge did not resolve the factual dispute about the filing date. Instead, the judge noted the problem but addressed the merits as if the petition were filed within the five-year period permitted by Rule 3:22-12.
The motion hearing on defendant's petition was held and the petition denied on April 22, 2008. The first matter addressed was a letter written by defendant to the judge about the performance of the attorney who was assigned to represent him on the petition. The judge summarized the content: "you don't think he's done anything to help you"; "he hasn't let you know what's going on." Defendant responded, "Absolutely."
According to defendant, he and his lawyer had only two conversations: a video conference about eight weeks after the attorney was assigned in September 2006 and a ten-to-fifteen minute telephone call placed by defendant to the lawyer on February 7, 2007. Defendant had not received a copy of the brief his attorney submitted to the judge or the brief filed by the State. While his lawyer agreed that they had one video conference, he said they had more than one telephone conversation. He also advised that someone in his office had mailed the brief he prepared for defendant to him in the prison, but he acknowledged that he had not provided defendant with the brief filed by the State. He further indicated his willingness to submit a "transmittal that includes ineffective assistance of PCR counsel" for filing with defendant's notice of appeal after the judge's ruling. Defendant asserted that he had not received any correspondence from the lawyer and had no discussion about strategy.
The judge, acknowledging prior instances in which prisoners had not received mail from their attorneys, summarized defense counsel's arguments. Defendant again noted that he had not seen the brief.
At the conclusion of the foregoing colloquy, defense counsel presented argument on the petition. He contended that trial counsel was ineffective for failure to obtain a ballistics report that may have established that defendant's co-defendant fired the fatal shot. He also argued that the judge should consider the merits of the petition because of the uncertainty about the filing date.
As noted above, the judge addressed the merits, including arguments not referenced in defense counsel's brief. Those additional issues included defendant's claims of ineffective assistance of trial counsel based upon his trial attorney's failure to: challenge the indictment; request a severance; request a charge on accomplice liability; and object to the use of evidence in the second trial that had been submitted in the first trial on charges of which the first jury acquitted defendant. The judge determined that defendant had failed to establish grounds for relief or grounds sufficient to establish a prima facie case of ineffective assistance warranting an evidentiary hearing on the petition.
This appeal followed. Subsequent to filing the notice of appeal, appellate counsel for defendant filed two motions to supplement the record, which we reserved for disposition on submission of the appeal to the panel deciding the matter. After review of the transcripts of the PCR hearing, and in light of defendant's undisputed representation that he had not had an opportunity to read the briefs submitted by his attorney or by the State, we determine that it is appropriate to grant defendant's ...