NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-05-0973.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Catherine Healy, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Alvarez and St. John.
Defendant Andre Dennis appeals from the August 15, 2011 Hudson County Law Division order denying his petition for post-conviction relief (PCR). After our review of the record, the counseled briefs, and defendant's pro se brief, we reverse and remand for resentencing.
On April 20, 2007, defendant entered a guilty plea in Hudson County to aggravated manslaughter, an amended count of a multi-count indictment; the recommended sentence was eighteen years subject to eight-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to be served concurrent to the anticipated sentence on defendant's pending unrelated murder charges in Monmouth County.
Defendant was not sentenced until July 22, 2008, some fifteen months later, as the matter was held in abeyance awaiting disposition of the Monmouth County murder charge. Despite the delay, when this sentence was imposed, the Monmouth County charges had not been resolved.
Between plea and sentence, on September 12, 2007, defendant, acting pro se, filed a motion to withdraw his guilty plea. That application was itself withdrawn prior to the sentence hearing.
Defendant appealed his Hudson County sentence by way of the excessive sentence oral argument calendar. See Rule 2:9-11. The sentence was affirmed on March 11, 2010. Defendant's pro se petition for PCR followed on July 1, 2010. A counseled and a separate pro se brief were submitted in support of the petition.
The charges stem from the killing of Rayshawn Rush, who hours prior to the shooting had robbed defendant and his brother. After the robbery, the brothers returned to their home, retrieved handguns, and tracked Rush down. When he entered his guilty plea, defendant admitted to shooting Rush from a distance of about ten feet. Defendant's brother, in establishing the factual basis for ...