STATE OF NEW JERSEY v. ANTHONY ALEXANDER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2694-04T42694-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY ALEXANDER,

Defendant-Appellant.

__________________________________________

 

Submitted March 20, 2006 - Decided May 12, 2006

Before Judges C.S. Fisher and Humphreys.

On appeal from the Superior Court of New

Jersey, Law Division, Criminal Part,

Atlantic County, Indictment

Nos. I-95-05-1020, 95-05-1082, 95-10-2368,

96-04-0473.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Arthur J.

Owens, Designated Counsel, of counsel and

on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney for respondent (Yasmeen

Shihabi, Assistant County Prosecutor, of

counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post conviction relief (PCR). He pled guilty in 1996 to count six of Indictment No. 96-05-1020-A (certain persons not to have weapons); count eight of Indictment No. 95-10-2368-A (certain persons not to have weapons); count one of Indictment No. 96-04-0743-A (unlawful possession of a weapon); and count sixteen of Indictment NO. 95-05-1082-A (distribution of cocaine.)

He was sentenced to an aggregate of 24 years of imprisonment with a 12 year period of parole ineligibility. He contends on this appeal:

POINT ONE

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING

THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS

DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel's Failure to Prepare for Trial

Constituted Ineffectiveness of Trial Counsel.

B. Trial Counsel's Conflict of Interest

Constituted Ineffectiveness of Counsel.

POINT TWO

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING

TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE

ISSUE OF INEFFECTIVENSS OF TRIAL COUNSEL.

POINT THREE

THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO

PROSECUTORIAL MISCONDUCT.

POINT FOUR

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF

(NOT RAISED BELOW).

POINT FIVE

DEFENDANT'S SENTENCE WAS UNCONSTITUTIONAL AS IT

WAS BASED UPON FACTS NOT FOUND BY A JURY OR

ADMITTED TO BY DEFENDANT.

We hold that defendant has made a prima facie showing that his trial counsel had a conflict of interest and that the conflict created a potential for prejudice. We reverse and remand for an evidentiary hearing on this issue. The defendant was charged in four indictments. He retained an attorney to represent him on three of the indictments. He was represented on the fourth indictment by the Office of the Public Defender which had assigned John Bjorklund to represent him.

Defendant alleges the following. While serving his sentence, he learned that information about the charges against him had been given to the police by Charles Cottman. The information had not been provided to the defendant or to his trial counsel. Further investigation revealed that Cottman, who was also facing criminal charges, was represented by Bjorklund, and that the representation began a week after defendant's guilty plea but prior to his sentencing.

A criminal defendant has a right to a counsel "whose representation is unimpaired and whose loyalty is undivided." State v. Murray, 162 N.J. 240, 249 (2000). Here Bjorklund was likely discussing plea negotiations with the prosecutor on behalf of Cottman, a potential witness against Alexander. At the same time Bjorklund owed a duty to provide legal representation to Alexander in connection with Alexander's sentencing. Bjorklund also had a duty to advise Alexander regarding any possible post conviction applications. The possible intertwining of these dual roles to the prejudice of Alexander requires a careful exploration at the trial level in an evidentiary hearing. See Murray, supra, 162 N.J. at 250 (Where a potential for prejudice is present because of a conflict of interest, the judge on a PCR application must examine the conflict and evaluate the likelihood of prejudice.)

The defendant has made a prima facie showing of a conflict of interest and potential prejudice. An evidentiary hearing is, therefore, required. Murray, supra, 162 N.J. at 249-250.

Defendant's remaining contentions are without merit and do not warrant an extended discussion in a written opinion. See R. 2:11-3(E)(2). We add the following brief comments.

We agree with the finding of the judge who heard the PCR application that, other than the questions to be examined upon remand discussed immediately above, the defendant did not receive ineffective assistance of counsel at the trial level. We are satisfied that the defendant did not receive ineffective assistance of counsel in connection with his PCR application.

As to the prosecutor's alleged failure to provide certain information in discovery, the defendant has not shown how the information would have assisted him in his defense.

With respect to the constitutionality of his sentence, the defendant's reliance on the holding in State v. Natale, 184 N.J. 458 (2005) is misplaced. The holding only applies to defendants with cases on direct appeal as of the date of the decision and to those defendants who raised the claims at trial or on direct appeal. Id. at 494.

This case was resolved by a plea of guilty not a trial, and

the defendant did not file a direct appeal. Hence, Natale does not apply.

Reversed and remanded for an evidentiary hearing consistent with this opinion. We do not retain jurisdiction.

 

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A-2694-04T4

May 12, 2006