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State v. Bethea

Superior Court of New Jersey, Appellate Division

October 22, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
DEREK BETHEA, a/k/a DERICK BETHEA, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2013

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-06-1235.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).

Before Judges Espinosa and Koblitz.

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We reverse and remand for the appointment of counsel and consideration of defendant's petition on the merits.

Defendant was convicted by a jury of fourth-degree swindling and cheating at casino gaming, N.J.S.A. 5:12-113 (count one) and two counts of third-degree swindling and cheating at casino gaming, N.J.S.A. 5:12-113 (counts two and three). He was sentenced on September 30, 2005, to consecutive sentences of five years imprisonment, with a minimum period of parole ineligibility of two and one-half years on counts two and three; and a consecutive sentence of eighteen months imprisonment with a minimum period of parole ineligibility of nine months on count one.

In December 2005, defendant filed a direct appeal. While that appeal was pending, defendant filed a PCR petition in June 2006. Counsel was not appointed. The petition was denied by an order dated August 7, 2006.

In an unpublished opinion, we affirmed defendant's convictions but remanded for re-sentencing. State v. Bethea, No. A-1827-05 (App. Div. Jan. 19, 2007).[1] The same sentences were imposed in May 2007. Defendant filed an appeal, which was listed on an Excessive Sentence Oral Argument calendar. We affirmed his sentence in an unpublished order. State v. Bethea, No. A-000901-07 (App. Div. July 6, 2009).

Defendant filed a PCR petition in August 2010, which was supported by a twenty-two page letter. Counsel was appointed and a brief submitted in support of the petition in which the following arguments were presented:

POINT I
PETITIONER ADOPTS ALL ARGUMENTS SET FORTH IN THE PREVIOUSLY FILED BRIEFS ON IND.99-04-0638 AS THEY APPLY TO ...

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