On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-12-2455.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2010 - Decided
Before Judges Lihotz and J. N. Harris.
Defendant Charles Mincey appeals from the denial of his application for post-conviction relief (PCR). We remand for an evidentiary hearing.
In May 2004, defendant went to trial -- putting the State to its proofs as to the identity of the shooter -- in connection with a fifteen-count indictment that charged him with the murder of Fritz Charlestin, felony murder, attempted murder of Steve Lemus, robbery, conspiracy, and unlawful possession of a weapon, among other things.*fn1 After jury selection and two days of trial testimony from several witnesses, the State and defendant negotiated a plea arrangement by which defendant would plead guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4 (count five, as amended), and second-degree aggravated assault (count seven, as amended), N.J.S.A. 2C:12-1(b)(1). The balance of the indictment was to be dismissed.
In exchange for the guilty plea to the two charges, the State promised to recommend a maximum aggregate sentence of twenty-five years imprisonment, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The Law Division imposed the recommended sentence, and dismissed the remaining counts of the indictment. Defendant appealed his sentence only, which we reviewed and did not disturb. State v. Mincey, No. A-3989-04T4 (App. Div. Feb. 7, 2006).
In June 2007, defendant filed a pro se PCR application. In it, he argued that he was entitled to a new trial because of newly-discovered evidence in the form of three exculpatory affidavits he had collected from (1) co-defendant Reed (stating, "[defendant] had nothing to do with the robbery or shooting of Fritz Charlestin. He did not help me in any way."), (2) Michael Charlestin (the victim's brother), and (3) Karl Michael Thomas (a friend of the victim). The affidavits, although containing hearsay, cast doubt on defendant's involvement in the crimes to which he had, three years earlier, pled guilty. In a December 2007 affidavit, defendant further asserted that he was coerced by his defense attorney into pleading guilty "despite my innocence" solely "to avoid a life sentence in prison." Defendant's affidavit provided no details concerning his putative innocence other than to proclaim it.
In March 2009, defendant's PCR counsel submitted a brief to the Law Division where it was argued that defendant's constitutional right to the effective assistance of counsel was abridged. The primary thrust of this contention was that defense counsel had conducted a deficient investigation before trial (and before counseling defendant to plead guilty) by failing to interview and obtain a statement from co-defendant Reed, and neglecting to obtain the information known by others concerning defendant's conduct at the time of the shooting. In addition, defense counsel was faulted for making "material inaccurate representations" concerning defendant's likely conviction by the jury and the potential penal consequences of such conviction, including a life sentence. The brief also argued that defendant's sentence was illegal because "the court failed to give proper weight to the defendant having no prior indictable convictions when imposing sentence." Lastly, PCR counsel's brief suggested further ineffective assistance of counsel insofar as defense counsel "would not let defendant explain in his own words what occurred when providing the factual basis for the plea agreement" and "refused to allow the defendant to read a letter at sentencing which would have shown remorse."
The Law Division considered the PCR application on June 25, 2009. The PCR judge was the same judge who oversaw the truncated trial, accepted the guilty plea, and sentenced defendant. After considering the submissions of the parties and oral argument by counsel, the judge denied the application in an oral opinion without conducting an evidentiary hearing. In commenting upon co-defendant Reed's affidavit, the judge stated:
Reed's exculpatory statement could have been elicited prior to the plea and prior to sentencing. If [defendant] were granted a new trial, Reed's statement would likely change the outcome. However, there was no jury verdict here. The [defendant] pled guilty and provided a more than adequate factual basis for the plea.