On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-10-4001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Grall.
Defendant Renaldo Chavis appeals from the denial of his petition for post-conviction relief. The judge who presided over defendant's trial and imposed his sentence for manslaughter, aggravated assault and unlawful possession of a handgun was assigned to address his petition.*fn1 Because a sketch of the scene of a different homicide apparently was appended to a photograph and admitted into evidence over defendant's objection, we conclude that the trial judge erred in dismissing defendant's claim of ineffective assistance of counsel without a hearing. Accordingly, we remand for further proceedings.
During the early morning hours of March 25, 2001, Terrell and Moresse Germany were shot outside a bar in Irvington. Terrell's wound was fatal; Moresse underwent surgery to repair the damage done by the gun shot wound to his chest and survived.
Moresse and other witnesses identified defendant as the shooter.*fn2 Defendant was indicted, tried to a jury and found guilty of second-degree reckless manslaughter, N.J.S.A. 2C:11-4; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. For each of the second-degree crimes, defendant was sentenced to a term of incarceration for ten years subject to periods of parole ineligibility and supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Those sentences are consecutive to one another and concurrent with the five-year term defendant received for the unlawful possession of a weapon.
The judgment of conviction was entered on January 10, 2003. We affirmed defendant's conviction on direct appeal, and the Supreme Court denied his petition for certification. State v. Chavis, No. A-3194-02 (App. Div. Oct. 15, 2004) (slip op. at 20), certif. denied, 183 N.J. 591 (2005). Defendant filed this petition for post-conviction relief in 2005.
In his petition for post-conviction relief, defendant raised the following issues:*fn3
I. Petitioner was denied a fair trial and effective assistance of counsel due to counsel's failure to assert a Brady [v]violation, to wit, the State's Suppression of a Witness' Statement.
II. Appellate Counsel's failure to raise on appeal the erroneous and prejudicial admission of a dying declaration deprived defendant of a fair trial and effective assistance of counsel.
III. Defendant was denied a fair trial and effective assistance of appellate counsel due to the prejudicial admission of an unrelated homicide sketch and counsel's failure to raise same as error on direct appeal.
IV. Appellate Counsel was ineffective for failing to challenge defendant's sentence in light of the United State's Supreme Court ruling in Blakely v. Washington.
On April 17, 2006, counsel assigned to represent defendant submitted a supplemental brief raising three additional claims:
I. Mr. Chavis was denied effective assistance of appellate counsel.
II. The Sentence imposed on Mr. Chavis is illegal.
III. The Sentence imposed on Mr. Chavis is manifestly excessive.
The judge addressed defendant's claims in two separate proceedings. On February 26, 2006, the judge determined that defendant's sentence was not illegal, and defendant does not challenge that determination on appeal. His claims of ineffective assistance of trial and appellate counsel were rejected for reasons stated on the record and in a written decision on July 28, 2006.
On appeal defendant argues:
I. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT WAS NOT DEPRIVED OF EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
A. Failure of appellate counsel to raise the issue of excessive sentence.
B. Failure of appellate counsel to raise the Blakely issue on appeal.
C. Failure of appellate counsel to raise the issue of the admission of the ...