On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-09-3524.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fasciale.
Defendant, Andre Williams, appeals from an order denying his petition for post-conviction relief (PCR). We reverse and remand for an evidentiary hearing.
Defendant was found guilty of second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count One); second-degree robbery, contrary to N.J.S.A. 2C:15-1 (Count Three); first-degree felony murder, contrary to N.J.S.A. 2C:11-3a(3) (Count Four); second-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4 (Count Five); and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d (Count Six).*fn1
Following merger of Counts One and Three with Count Four, defendant was sentenced to an extended term of life in prison with thirty-five years of parole ineligibility. On Count Five, the judge imposed a concurrent term of thirty years in prison subject to eighty-five percent parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On Count Six, defendant was sentenced to a concurrent term of eighteen months. The appropriate assessments and penalties were also imposed.
We affirmed the convictions but held that the aggravated manslaughter conviction (Count Five) merged with the felony murder conviction (Count Four). State v. Williams, No. A-2331-03 (App. Div. February 21, 2006) (slip op. at 23). We reversed and remanded for resentencing. Ibid. The Supreme Court denied certification on May 11, 2006. State v. Williams, 187 N.J. 80 (2006).
The facts giving rise to defendant's convictions are set forth in our unreported opinion. Williams, supra, slip op. at 1-5. On June 23, 2001, defendant and his friend robbed an elderly woman between 6:45 a.m. and 7:30 a.m. Defendant drove up to the curb where the victim was walking, exited the car, and took her purse, knocking her to the ground. He ran back to the car, sat behind the wheel, and started to drive away. From a distance, an armed security guard, Dwayne Santos, observed the incident. When defendant saw Santos, he put the car in reverse, ran over the victim, and crushed her to death. Defendant confessed to the robbery but denied knowing that he struck the victim with the car.
In his PCR petition, defendant argued that his counsel was ineffective because: (1) he had conflicts with counsel about how to try the case that made it difficult to communicate; (2) his counsel refused to call defendant's girlfriend as an alibi witness; (3) his counsel failed to request a Wade*fn2 hearing; and (4) his counsel failed to adequately cross-examine Santos.
On March 7, 2008, the PCR judge denied the PCR, and on March 18, 2008, he issued a written opinion providing his reasons.
The PCR judge found that any conflicts between defendant and counsel did not amount to ineffective assistance of counsel. Citing State v. Fritz, 105 N.J. 42, 52 (1987), the judge explained that defendant did not show that his counsel was "disloyal or uncommitted to the case." The judge found that defendant did "not cite one important decision or development in the case about which [defense counsel] failed to consult him." Defendant also failed to show "that but for the attorney's complained[-]of actions, the outcome of the trial would have been different."
The PCR judge found no affidavit was provided to support the contention that the alibi witness was with defendant, in violation of Rule 1:6-6. Therefore, the judge rejected this point.
The PCR judge found that defendant was procedurally barred since he previously raised the failure to seek a Wade hearing on direct appeal. The judge also noted that neither defense counsel nor the assistant prosecutor ...