STATE OF NEW JERSEY v. ANTHONY HAMLET

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5414-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY HAMLET,

Defendant-Appellant.

_________________________________

September 22, 2010

 

Submitted March 17, 2010 - Decided

 

Before Judges Graves and J. N. Harris.

 

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 98-02-0092.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

 

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthony Hamlet appeals from an order entered on January 29, 2008, denying his petition for post-conviction relief (PCR). For the reasons that follow, we reverse and remand for an evidentiary hearing and resentencing.

In an eleven-count indictment, defendant was charged with the restraint and armed robbery of three employees at the Strand Movie Theatre in Ocean City, on January 18, 1998. Cape May County Indictment No. 98-02-0092 charged defendant as follows: three counts of first-degree armed robbery in violation of N.J.S.A. 2C:15-1 (counts one, two, and three); third-degree theft in violation of N.J.S.A. 2C:20-3 (count four); three counts of second-degree possession of a handgun for unlawful purposes in violation of N.J.S.A. 2C:39-4(a) (counts five, six, and seven); three counts of third-degree criminal restraint in violation of N.J.S.A. 2C:13-2(a) (counts eight, nine, and ten); and second-degree possession of a handgun by a prohibited person in violation of N.J.S.A. 2C:39-7(b) (count eleven).

In a pretrial ruling on January 6, 1999, the court found that defendant's prior convictions in the State of Indiana in 1974, 1977, 1980, 1983, and 1988 demonstrated "a continuum of criminality." Accordingly, the court determined the State could use sanitized versions of defendant's prior convictions to impeach his credibility if he chose to testify.1

After a two-day trial, a jury found defendant guilty on counts one through ten. In addition, the trial judge found defendant guilty of count eleven (second-degree possession of a handgun by a prohibited person).

Prior to sentencing, the State filed a motion to have defendant sentenced to life in prison without parole under the "Persistent Offender Accountability Act," N.J.S.A. 2C:43-7.1(a), which is also known as the "Three Strikes" law. In a supporting affidavit dated January 21, 1999, the prosecutor stated:

2. On January 13, 1999 the defendant was convicted of three counts of first degree Armed Robbery.

 

3. Defendant was previously convicted of the offense of Armed Robbery on August 17, 1977 in the State of Indiana, County of Allen, under Indictment CR-77-127.

 

4. On July 16, 1974, defendant was convicted in the State of Indiana, County of Allen, under Indictment CCR-74-114 of the offense of Armed Robbery.

 

5. On December 12, 1983 defendant was convicted in the State of Indiana, County of Allen, under Indictment CCR-83-149 with the Offense of Robbery. Defendant received a twenty-year prison sentence.

 

6. On June 27, 1988 in the State of Indiana, County of Madison, under 3SCR-86-110B, defendant was convicted of the offense of Robbery and received a fifteen-year prison sentence.

 

Defense counsel's response, in its entirety, to the State's motion was as follows:

I have had the opportunity to review the various judgments of conviction. I did provide a copy of the PSI to my client. Although he does have numerous convictions and he was convicted at this trial, it's our belief that the life/do life sentence is purely a discretionary one, it's not mandatory, and we're asking that the Court use its discretion and not impose a life/do life sentence.

 

On March 26, 1999, the court granted the State's motion and sentenced defendant to three concurrent terms of life imprisonment without parole on counts one, two, and three. In addition, defendant was sentenced to a consecutive ten-year term on count eleven, with five years of parole ineligibility. Defendant's other convictions were either merged with count one or the court imposed concurrent sentences.

On his direct appeal, defendant raised three issues:

POINT I

 
DEFENDANT'S PRIOR CONVICTIONS WERE INCORRECTLY RULED ADMISSIBLE.

 

POINT II

 

THE PROSECUTOR'S FAILURE TO OFFER DEFENDANT A PLEA OF OTHER THAN "LIFE DO LIFE" WAS IMPROPER.

 

POINT III

 

DEFENDANT'S SENTENCE IS EXCESSIVE.

In an unpublished decision, we affirmed defendant's convictions and his consecutive sentences. State v. Hamlet, No. A-0936-99 (Jan. 10, 2001), certif. denied, 168 N.J. 292 (2001). In our initial decision, we considered the imposition of a consecutive sentence for persons prohibited from possessing a handgun and found "the trial court did not abuse its discretion in handing down a sentence consecutive to a life sentence." However, we did not address the imposition of three concurrent life sentences, and the State now concedes that a resentencing remand is necessary, as no more than one extended term sentence may be imposed pursuant to N.J.S.A. 2C:44-5(a)(2). See State v. Papasavvas, 163 N.J. 565, 627 (2000) ("[A] court may impose only one extended term on one sentencing occasion.").

On June 9, 2006, defendant filed a PCR petition alleging his lawyer was ineffective for not properly challenging the State's evidence of his eligibility for the extended term. Defendant's supporting certification stated:

1. In 1977, together with two co-defendants, I broke into a closed liquor store in Indiana. There were no people in the store. The police were alerted by an alarm. They came to the store and arrested us. I recall that I was charged with burglary, not robbery and that I was convicted of second-degree burglary.

 

2. In 1988, I had been in prison for 5 years. I was involved in a riot. I was convicted of rioting and battery. There was no robbery charge. However, the sentence I was serving was for a 1983 robbery conviction.

 

3. When I was sentenced in Cape May County Superior Court, my public defender . . . did not review my prior convictions with me in any way. She did not ask if I was an adult when convicted. She did not ask about the facts of the cases to see if that equated first degree robbery in New Jersey. She did not ask if the convictions were accurate.

 

In a subsequent brief to the PCR court, defense counsel presented the following arguments:

POINT I

 

DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE [PETITIONER'S] PRIOR CONVICTIONS AND FOR FAILING TO NOTIFY THE COURT THAT THE INDIANA ROBBERY STATUTE WAS NOT THE SAME AS FIRST DEGREE ROBBERY AS DEFINED BY NEW JERSEY STATUTES.

 

(A) STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

 

(B) COUNSEL FAILED TO INVESTIGATE PETITIONER'S PRIOR CONVICTIONS TO SEE IF THEY ACTUALLY QUALIFIED AS PRIOR CONVICTIONS FOR PURPOSES OF IMPOSING AN EXTENDED TERM SENTENCE.

 

POINT II

 

THE JUVENILE OFFENSE SHOULD NOT COUNT AS AN ADULT "OFFENSE" UNDER N.J.S.A. 2C:43-7.1.

 

POINT III

 

DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE SHE DID NOT OBJECT TO A LIFE/DO LIFE SENTENCE WHEN THE STATE HAD NOT MET ITS BURDEN OF ESTABLISHING THE PREDICATE OFFENSES.

 

POINT IV

 

INDIANA'S ROBBERY STATUTE IS NOT SUBSTANTIALLY EQUIVALENT TO NEW JERSEY'S THEREFORE A PRIOR CONVICTION FOR ROBBERY IN INDIANA SHOULD NOT ENHANCE THE NEW JERSEY SENTENCE.

 

POINT V

 

THERE WAS NO PROOF THAT THE INDIANA CONVICTIONS WERE FOR FIRST DEGREE CRIMES.

 

POINT VI

 

PETITIONER'S APPLICATION IS NOT OUT OF TIME.

 

POINT VII

 

IF DEFENSE COUNSEL HAD BEEN EFFECTIVE, PETITIONER WOULD HAVE RECEIVED PLEA OFFERS OTHER THAN LIFE/DO LIFE.

 

Following oral argument on January 9, 2008, the court denied defendant's petition and memorialized its decision in an order dated January 29, 2008. Although the court found defendant satisfied the first prong of Strickland, it concluded defendant failed to demonstrate "that he actually suffered prejudice by prior counsel's alleged deficient performance." See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). The court expressed "a certain unease with the quantum and quality of the record," but concluded there was "an insufficient basis" to award relief because "it is essentially the same record [that was before the trial court]."

On appeal, defendant presents the following arguments:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE COURT APPLIED AN IMPROPER "OUTCOME DETERMINATIVE" STANDARD FOR PREJUDICE INSTEAD OF APPROPRIATE R. 3:22-2 CRITERIA.

POINT II

 

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT III

 

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE IMPOSITION OF MULTIPLE "THREE STRIKES" LIFE-DO-LIFE SENTENCES WAS ILLEGAL.

(Raised partially below)

POINT IV

 

defendant REASSERTS ALL OTHER ISSUES RAISED IN defendant'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

 

We are convinced from our review of the record that the PCR court erred by rejecting defendant's claims without conducting an evidentiary hearing. When petitioning for post-conviction relief, a defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to relief. State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, a defendant must articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). An evidentiary hearing is required when a defendant establishes a prima facie basis for relief, and factual issues remain as to the merits of his claim. Preciose, supra, 129 N.J. at 462-63. See also Rule 3:22-10(a) (stating that a defendant is entitled to an evidentiary hearing "upon the establishment of a prima facie case" and "a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record").

Repeat violent offenders are eligible for an extended term of imprisonment of life without parole under N.J.S.A. 2C:43-7.1 upon the third judgment of conviction, when the crime for which a defendant is being sentenced was committed "either within 10 years of the date of the defendant's last release from confinement for commission of any crime or within 10 years of the date of the commission of the most recent of the crimes for which the defendant has a prior conviction." N.J.S.A. 2C:43-7.1(c). "[S]ubsection c. places a ten-year perimeter around the relevant events in an apparent effort to maintain a level of timeliness consistent with the purpose of removing those criminals from society who demonstrate an inability to refrain from repeated commission of the most serious crimes." State v. Galiano, 349 N.J. Super. 157, 165 (App. Div. 2002), certif. denied, 178 N.J. 375 (2003).

In this case, the PCR court relied on defendant's 1977, 1983, and 1988 convictions in Indiana as predicate offenses to find defendant eligible for an extended term under New Jersey's Three Strikes law. However, the information the State provided to the trial court regarding defendant's prior criminal history in Indiana lacked detailed language, and defendant disputes his 1977 conviction, contending "I was charged with burglary, not robbery and . . . I was convicted of second-degree burglary." In addition, defendant's presentence report does not refer to defendant's 1983 or 1988 convictions; defendant certifies his 1988 conviction was for rioting and battery, not robbery; and defendant argues his convictions in Indiana are not "substantially equivalent" to a conviction for first-degree robbery in New Jersey.

Under these circumstances, we conclude defendant has established a prima facie case and he is entitled to a hearing because there is a "reasonable probability that, but for counsel's unprofessional conduct, the result of the [sentencing hearing] would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Consequently, we reverse and remand for an evidentiary hearing to determine whether defendant was subject to a mandatory sentence under the Three Strikes law, and for resentencing because the sentencing court incorrectly imposed three extended-term sentences.

Reversed and remanded. Jurisdiction is not retained.

 

1 Defendant did not testify or present any witnesses at trial. In her opening remarks to the jury, defense counsel stated: "Mr. Hamlet is not disputing that he is the man at the Strand Theater. What we are disputing is that he did not act with knowledge and purpose because he was so high and zonked out of his mind on cocaine."