NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2013
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-04-0495.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Fredric M. Knapp, Morris County Acting Prosecutor (Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Fisher and Koblitz.
Following a trial in 2006, during which the jury heard and considered a set of stipulated facts regarding ownership of a stolen vehicle, defendant was convicted of third-degree theft, N.J.S.A. 2C:20-3, and second-degree eluding, N.J.S.A. 2C:29- 2(b). In his direct appeal, defendant unsuccessfully argued the jury was erroneously instructed on how to evaluate defendant's confession and that the sentence imposed was excessive. See State v. Pickett, No. A-5375-06 (App. Div. Dec. 26, 2008).
In May 2009, defendant filed a pro se post-conviction relief (PCR) petition, arguing, without specificity, that he was denied the effective assistance of counsel. Appointed counsel provided further amplification, arguing in a brief filed in December 2010 that defendant's trial attorney was ineffective in entering into a stipulation without determining whether the stipulated facts were accurate and without adequately discussing the stipulation and its consequences with defendant. Defendant also argued that trial counsel was ineffective in failing to move for a dismissal of the indictment based upon the submission to the grand jury of improper evidence and in failing to object to the content of the eluding instructions given to the jury. The PCR judge denied the petition for reasons set forth in a written opinion.
In appealing the denial of his PCR petition, defendant presents the following arguments:
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.
A. DEFENDANT PRESENTED A PRIMA FACIE CASE IN SUPPORT OF HIS CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE IN ENTERING THE STIPULATION SINCE COUNSEL UNDERTOOK NO INVESTIGATION TO CONFIRM THE FACTS SET FORTH IN THE STIPULATION. MOREOVER, THE FACTS IN THE STIPULATION WERE ERRONEOUS AND PREJUDICED THE DEFENSE. THEREFORE, THE LOWER COURT ORDER SHOULD BE REVERSED AND THIS MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING.
B. DEFENDANT PRESENTED A PRIMA FACIE CASE IN SUPPORT OF HIS CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE IN ENTERING THE STIPULATION WITHOUT REVIEWING THE STIPULATION WITH DEFENDANT AND WITHOUT SECURING DEFENDANT'S AGREEMENT. THEREFORE, THE LOWER COURT ORDER SHOULD BE REVERSED FOR AN EVIDENTIARY HEARING.
C.DEFENDANT HAS PRESENTED A PRIMA FACIE CASE IN SUPPORT OF HIS CLAIM THAT APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE FOR DISMISSAL OF THE INDICTMENT. THEREFORE, THE LOWER COURT ORDER SHOULD BE REVERSED AND ...