NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2012
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-02-0601.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Nugent and Haas.
Defendant Tammy Hubbard appeals from a Law Division order that denied her petition for post-conviction relief (PCR) without a hearing. We reverse and remand for a hearing.
On September 4, 2000, police arrested defendant after she stabbed and killed a teenager. An Essex County Grand Jury subsequently charged her in a three-count indictment with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count two); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three). On February 15, 2002, in a superseding indictment, an Essex County Grand Jury charged defendant with the same offenses. Defendant elected to go to trial and a jury found her guilty on all counts. Following her conviction, the trial judge sentenced her to a fourteen-year custodial term subject to the No Early Release Act, (NERA) N.J.S.A. 2C:43-7.2.
We affirmed defendant's conviction on direct appeal, State v. Hubbard, No. A-5369-02 (App. Div. Oct. 25, 2004), recounting in our opinion the events culminating in the homicide, including defendant "drinking six sixteen-ounce Bud Ice Beers and about four or five six-ounce glasses each of brandy and rum" at the party where defendant stabbed the victim. Id. slip op. At 2-3. The Supreme Court denied certification. State v. Hubbard, 182 N.J. 429 (2005).
In 2006, defendant timely filed a PCR petition, but withdrew it in 2007. The order dismissing the petition stated that the petition was being "withdrawn without prejudice to [defendant's] right to re-file as if within time and as a first PCR with all rights attendant to a first PCR." In 2008, defendant re-filed her petition and claimed that her trial counsel had been ineffective for many reasons, including his failures to challenge the indictment, properly attack the credibility of the State's witnesses, challenge at trial the misconduct of jurors, properly object to multiple instances of prosecutorial misconduct, and properly prepare a defense.
Defendant also claimed she rejected the State's plea offer to recommend a seven-year custodial term for two reasons: first, when the State initially offered the plea, she was under indictment "for the wrong body, " a situation that her attorney ignored; second, her attorney told her she could only get six or seven years by going to trial.
Lastly, defendant claimed that her sentence was excessive. Defendant presented little documentary evidence in support of her petition.
During oral argument on defendant's PCR petition, the judge questioned her about her allegation that she had initially been charged "for the wrong body, " that is, for the homicide of a victim who had a name similar to that of the victim in her case. Although the prosecutor informed the judge that information pertaining to the other individual may have been included in discovery or mentioned in the indictment, and alluded to a superseding ...