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State v. Howell

Superior Court of New Jersey, Appellate Division

June 13, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
SHARMON HOWELL, Defendant-Appellant

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 28, 2013

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 94-05-643.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Brian W. Schreyer, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Before Judges Sabatino and Fasciale.

PER CURIAM

Defendant appeals from an April 13, 2012 order denying his pro se petition for post-conviction relief (PCR). Defendant argues that his counsel failed to advise him about the potential consequences of his guilty plea on a subsequent conviction. We reverse and remand for appointment of PCR counsel.

In February 1994, the trial court adhered to defendant's plea agreement with the State and sentenced him to concurrent terms of three years in prison on two convictions for third-degree possession of a controlled dangerous substance within 1000 feet of a school, N.J.S.A. 2C:35-7. In January 1995, the court adhered to a second plea agreement regarding two additional 1000-foot school zone offenses and imposed a seven-year prison term, concurrent to five years in prison with three years of parole ineligibility. Defendant did not file direct appeals from any of these convictions.

In January 2012, defendant filed his first petition for PCR. By this time, defendant was in federal custody serving an enhanced sentence as a "category six offense" allegedly because of his drug-related guilty pleas. In February 2012, the PCR judge entered an order appointing PCR counsel, and scheduling a case management conference for late April 2012. On April 3, 2012, the PCR judge issued a written decision after considering the matter on the papers, determined that Rule 3:22-12 procedurally barred the PCR petition, and denied the petition.[1] The judge disposed of the petition, however, before PCR counsel received defendant's file and provided defendant with any representation. This appeal followed.

On appeal, defendant raises the following points:

POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE SUMMARILY DENYING A FIRST PETITION FOR POST-CONVICTION RELIEF ON THE [FIVE] YEAR TIME BAR OF RULE 3:22-12, PRIOR TO THE ASSIGNMENT OF COUNSEL WAS NOT CONTEMPLATED BY THE RULE AND VIOLATED DEFENDANT'S RIGHT TO POST CONVICTION RELIEF.
POINT II
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

We need not consider the merits of defendant's appeal because the PCR judge denied the petition without first allowing PCR counsel to participate. In State v. King, 117 N.J.Super. 109, 111-12 (App. Div. 1971), we declined to consider the issues presented in the first PCR petition because a public defender had not been appointed. The appointment of PCR counsel for defendant's first PCR petition "does not in any way depend upon whether the [PCR] judge thinks the petition is meritorious." Id. at 111. We explained that a public defender "can be of great assistance to the court" by focusing on the issues and presenting relevant authorities to support defendant's position. Ibid. Although we appreciate that the PCR judge may have been attempting to resolve this matter efficiently in light of the most recent governing case law[2] she disposed of the petition prematurely

We therefore reverse and remand for the appointment of PCR counsel We do not retain jurisdiction


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