On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 98-02-0092.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and J. N. Harris.
Defendant Anthony Hamlet appeals from an order entered on January 29, 2008, denying his petition for post-conviction relief (PCR). For the reasons that follow, we reverse and remand for an evidentiary hearing and resentencing.
In an eleven-count indictment, defendant was charged with the restraint and armed robbery of three employees at the Strand Movie Theatre in Ocean City, on January 18, 1998. Cape May County Indictment No. 98-02-0092 charged defendant as follows:
three counts of first-degree armed robbery in violation of N.J.S.A. 2C:15-1 (counts one, two, and three); third-degree theft in violation of N.J.S.A. 2C:20-3 (count four); three counts of second-degree possession of a handgun for unlawful purposes in violation of N.J.S.A. 2C:39-4(a) (counts five, six, and seven); three counts of third-degree criminal restraint in violation of N.J.S.A. 2C:13-2(a) (counts eight, nine, and ten); and second-degree possession of a handgun by a prohibited person in violation of N.J.S.A. 2C:39-7(b) (count eleven).
In a pretrial ruling on January 6, 1999, the court found that defendant's prior convictions in the State of Indiana in 1974, 1977, 1980, 1983, and 1988 demonstrated "a continuum of criminality." Accordingly, the court determined the State could use sanitized versions of defendant's prior convictions to impeach his credibility if he chose to testify.*fn1
After a two-day trial, a jury found defendant guilty on counts one through ten. In addition, the trial judge found defendant guilty of count eleven (second-degree possession of a handgun by a prohibited person).
Prior to sentencing, the State filed a motion to have defendant sentenced to life in prison without parole under the "Persistent Offender Accountability Act," N.J.S.A. 2C:43-7.1(a), which is also known as the "Three Strikes" law. In a supporting affidavit dated January 21, 1999, the prosecutor stated:
2. On January 13, 1999 the defendant was convicted of three counts of first degree Armed Robbery.
3. Defendant was previously convicted of the offense of Armed Robbery on August 17, 1977 in the State of Indiana, County of Allen, under Indictment CR-77-127.
4. On July 16, 1974, defendant was convicted in the State of Indiana, County of Allen, under Indictment CCR-74-114 of the offense of Armed Robbery.
5. On December 12, 1983 defendant was convicted in the State of Indiana, County of Allen, under Indictment CCR-83-149 with the Offense of Robbery. Defendant received a twenty-year prison sentence.
6. On June 27, 1988 in the State of Indiana, County of Madison, under 3SCR-86-110B, defendant was convicted of the offense of Robbery and received a fifteen-year prison sentence.
Defense counsel's response, in its entirety, to the State's motion was as follows:
I have had the opportunity to review the various judgments of conviction. I did provide a copy of the PSI to my client. Although he does have numerous convictions and he was convicted at this trial, it's our belief that the life/do life sentence is purely a discretionary one, it's not mandatory, and we're asking that the Court use its discretion and not impose a life/do life sentence.
On March 26, 1999, the court granted the State's motion and sentenced defendant to three concurrent terms of life imprisonment without parole on counts one, two, and three. In addition, defendant was sentenced to a consecutive ten-year term on count eleven, with five years of parole ineligibility.
Defendant's other convictions were either merged with count one or the court ...