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State v. Hill

Superior Court of New Jersey, Appellate Division

July 16, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
RICHARD HILL, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2013

On appeal from the Superior Court of New Jersey, [1] Law Division, Camden County, Indictment No. 01-12-3809.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

Before Judges Simonelli and Accurso.

PER CURIAM

Defendant Richard Hill appeals from the August 30, 2010, Law Division order, which denied his motion for post-conviction relief (PCR) grounded on the ineffective assistance of trial and appellate counsel. We affirm.

A grand jury indicted defendant and co-defendant Ryan Shavitz (Shavitz)[2] for first-degree kidnapping by unlawfully removing the victim, N.J.S.A. 2C:13-1b(1) and (2) (count one); first-degree kidnapping by unlawfully confining the victim, N.J.S.A. 2C:13-1b(1) (count two); three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) (counts three, four and five); three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4) (counts six, seven and eight); three counts of first-degree sexual assault, N.J.S.A. 2C:14-2a(5) (counts nine, ten and eleven); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a (count twelve); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) and (7) (counts thirteen and fourteen); third-degree terroristic threats, N.J.S.A. 2C:12-3a (count fifteen); two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (counts sixteen and seventeen); and second-degree conspiracy to commit first-degree kidnapping and/or aggravated sexual assault, N.J.S.A. 2C:13-1b and N.J.S.A. 2C:14-2a (count eighteen).[3]

Following a jury trial in May 2004, defendant was convicted of two counts of first-degree kidnapping (counts one and two); three counts of first-degree aggravated sexual assault (counts three, six and nine); the lesser-included offense of simple assault (count thirteen); third-degree terroristic threats (count fifteen); an amended charge of third-degree possession of a weapon for an unlawful purpose (count sixteen); and second-degree conspiracy to commit first-degree kidnapping and/or aggravated sexual assault (count eighteen). On August 27, 2004, the trial judge denied defendant's motion for a new trial.

At sentencing on September 16, 2004, the judge merged count two with count one and sentenced defendant on count one to a twenty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge merged counts three and nine with count six and sentenced defendant on count six to a consecutive fifteen-year term of imprisonment subject to NERA.[4]The judge also imposed a five-year period of parole on each of counts one and six, for an aggregate ten-year period of parole supervision. On October 22, 2004, the trial court denied defendant's motion for reconsideration of the sentence.

Defendant appealed his conviction and sentence. We affirmed, our Supreme Court denied certification, and the Supreme Court of the United State denied certiorari. State v. Hill, No. A-1044-04 (App. Div. July 13, 2006), certif. denied, 192 N.J. 70 (2007), cert. denied, 552 U.S. 1113, 128 S.Ct. 905, 169 L.Ed.2d 753 (2008).

Defendant filed a timely pro se PCR petition, contending that trial counsel rendered ineffective assistance by failing to (1) properly advise defendant during plea negotiations of his potential sentencing exposure, particularly, the applicability of NERA and potential consecutive sentences for aggravated assault and kidnapping; (2) file a motion to dismiss and/or consolidate the kidnapping charges in counts one and two; (3) object to Shavitz, a State witness, testifying in prison garb; and (4) object to the imposition of consecutive parole supervision terms, which constituted an illegal sentence. Defendant also contended that appellate counsel rendered ineffective assistance by failing to raise trial counsel's deficiencies on direct appeal.

In an August 27, 2010, oral decision, the PCR judge reserved decision on defendant's contention that his sentence was illegal pending the Court's opinion in State v. Friedman, 209 N.J. 102 (2012). The judge denied the petition in all other respects. The judge found that the defendant signed a pretrial memorandum acknowledging that NERA would apply to any sentence imposed and, if convicted, he faced a maximum sentence of one hundred and twenty years and a maximum parole ...


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