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State of New Jersey v. Kevin Myers

December 23, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN MYERS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 00-06-0530.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 30, 2010 -- Decided Before Judges Parrillo and Yannotti.

Defendant Kevin Myers appeals from an order entered by the Law Division on September 21, 2009, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged under Cumberland County Indictment No. 00-06-530 with first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a). At the time of trial, the court granted the prosecutor's motion to amend the indictment to charge second-degree reckless manslaughter, contrary to N.J.S.A. 2C:11-4(b). Defendant was tried before a jury, which found him guilty of reckless manslaughter.

The court granted the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a) and imposed a term of twenty years of imprisonment, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed. We affirmed defendant's conviction but remanded for re-sentencing. State v. Myers, No. A-6726-00 (App. Div. Dec. 5, 2002). Defendant sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied defendant's petition. State v. Myers, 176 N.J. 72 (2003).

The trial court re-sentenced defendant and imposed a twenty-year prison sentence, with a ten-year period of parole ineligibility. We remanded the matter to amend the judgment and delete any reference to NERA. State v. Myers, No. A-6426-02 (App. Div. Feb. 5. 2004). Defendant then filed a motion for reconsideration, which we denied by order dated May 6, 2004.

Defendant filed a petition for certification, seeking review of our judgment. The Court denied defendant's petition. State v. Myers, 182 N.J. 150 (2004). Defendant subsequently filed a motion to correct what he alleged was an illegal sentence. The trial court denied the motion on June 7, 2006. Defendant appealed and we affirmed. State v. Myers, No. A-1105-06 (App. Div. June 18, 2008).

Thereafter, defendant filed a pro se petition for PCR in the Law Division. The court assigned counsel to represent defendant and counsel filed a brief arguing that: 1) defendant's 1991 conviction should not have been admitted at trial and counsel's failure to object to its admission constituted the ineffective assistance of counsel; 2) the court failed to properly sanitize defendant's prior convictions in accordance with State v. Brunson, 132 N.J. 377 (1993); 3) the prosecutor violated Rule 3:13-3 and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to provide trial counsel with the victim's "rap sheet"; 4) the State's expert testified beyond the field of his expertise and implied that defendant was guilty, thereby violating defendant's constitutional rights; 5) defendant should have been allowed to present evidence regarding the victim's prior violent acts as well as his reputation for violence; 6) defendant is entitled to a new trial based on newly discovered evidence; 7) trial counsel's failure to investigate and consider certain potential defenses constitutes the ineffective assistance of counsel; 8) the prosecutor committed misconduct by overcharging defendant and making certain improper comments at trial; 9) appellate counsel was ineffective; 10) the cumulative effect of the aforementioned errors deprived defendant of his right to a fair trial; and 11) counsel's errors were "so bad" that actual prejudice need not be shown.

Defendant filed a pro se memorandum of law, in which he also argued, among other points, that trial counsel denied him a "proper" defense by failing to: investigate certain potential defense witnesses; file a motion seeking the victim's criminal record; allow defendant's wife to testify on his behalf; oppose the imposition of an extended term sentence; make a motion for a new trial; investigate the credibility of the State's expert witness; and argue that the court erred by failing to sanitize his prior convictions.

Defendant additionally argued that the trial court erred by: allowing his prior convictions to be used for impeachment purposes; failing to provide him with the victim's prior conviction; and permitting the State to amend the indictment from aggravated to reckless manslaughter. In a supplemental brief, defendant further argued that the criteria used by the court for the extended term sentence were unconstitutional.

The PCR court considered defendant's PCR petition on September 21, 2009. The court placed its decision on the record, concluding that defendant had failed to establish a basis for PCR. The court entered an order dated September 21, 2009, memorializing its decision. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL FREE FROM AN OVER-CHARGED INDICTMENT; FROM PROSECUTORIAL VINDICTIVENESS IN THE PLEA BARGAINING PROCESS; FROM THE WRONGFUL IMPEACHMENT OF HIS CREDIBILITY BECAUSE OF THE IMPROPER ADMISSION OF REMOTE AND UNSANITIZED CONVICTIONS; AND FROM IMPROPER EXPERT TESTIMONY THAT USURPED THE EXCLUSIVE FACT-FINDING RESPONSIBILITIES OF THE JURY; WAS VIOLATED.

POINT II THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT FIRST CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO OBJECT TO DR. GROSS' TESTIMONY CONCERNING THE LACK OF ANY INJURIES ON THE DECEASED'S HANDS, AND TRIAL COUNSEL'S

FAILURE TO OBJECT TO THE LACK OF [SANITIZATION] OF THE DEFENDANT'S CONVICTIONS, RESULTED IN A PRIMA FACIE DEFICIENT PERFORMANCE UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST, AND A PRIMA FACIE SHOWING OF PREJUDICE UNDER THE SECOND PRONG OF THE TEST.

POINT III THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEFS IN SUPPORT OF POST-CONVICTION RELIEF AND IN THE DEFENDANT'S PRO SE BRIEFS IN SUPPORT OF POST-CONVICTION RELIEF.

(A) THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

(B) THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE PROSECUTOR FAILED TO PROVIDE FULL DISCOVERY.

(C) THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BASED ON NEWLY DISCOVERED EVIDENCE.

(D) THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE OF THE CUMULATIVE EFFECT OF ...


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