STATE OF NEW JERSEY v. HARRY KITTRELL

 

 
NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6529-05T46529-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HARRY KITTRELL,

Defendant-Appellant.

____________________________

 

Submitted October 21, 2008 - Decided

Before Judges Wefing and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 91-12-1310.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack Gerber, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the May 25, 2006 order of the trial court denying his petition for post-conviction relief (PCR). We reverse.

On September 22, 1992, a jury convicted defendant of five drug-related offenses. On December 18, 1992, defendant was sentenced to an aggregate term of sixty years with a thirty-year period of parole ineligibility.

Defendant appealed, raising claims of trial error, excessive sentence and ineffective assistance of trial counsel. In an unreported opinion, we affirmed defendant's convictions, rejected his claims of ineffective assistance of counsel and remanded for resentencing. State v. Kittrell, No. A-4711-92 (App. Div. June 20, 1995). Pursuant to that remand, on October 5, 1995, defendant was resentenced to an aggregate term of fifty years with a seventeen-year period of parole ineligibility. The New Jersey Supreme Court granted defendant's petition for certification and, on July 3, 1996, affirmed our decision. State v. Kittrell, 145 N.J. 112 (1996).

Defendant filed his PCR petition on June 28, 2001, alleging ineffective assistance of trial and appellate counsel. For reasons not clear in the record, defendant's petition received no attention until March 2, 2005, when the trial court entered an order denying that petition as time-barred under Rule 3:22-12.

Defendant appealed this order and, on September 2, 2005, we ordered a remand "for the assignment of counsel and reconsideration of the petition for post-conviction relief[,]" stating, "[c]ounsel can assert why the petition should not considered time barred."

On February 8, 2006, the PCR judge held a hearing pursuant to our remand order and established a timetable for the submission of briefs and oral argument. The judge provided defense counsel with additional time to prepare, as counsel had "just got[ten] the case assigned to [him]" and he was still awaiting receipt of defendant's files.

The PCR judge stated that he "[had] to give . . . counsel for [defendant] the opportunity to show . . . why [the PCR petition was] not time barred." The judge stated further, "[I]f I decide it's not [time barred], then obviously [defendant's] . . . petition can continue. If I decide it is time barred, then that would end it . . . ." Throughout the February 8 hearing, the judge reiterated that the only issue to be presented at the next-scheduled argument date would be whether the PCR petition was time barred.

The parties thereafter submitted letter briefs to the trial judge, pursuant to the established schedule. Defendant primarily addressed the time bar issue, but included a brief argument that his ineffective assistance of counsel claim was "viable." Likewise, the State's brief primarily addressed the time bar issue, but included a brief response to defendant's ineffective assistance of counsel argument.

The PCR judge held a second hearing on May 22, 2006. After entertaining limited argument from counsel, the trial judge found that defendant's PCR petition was not time barred. The judge then engaged defense counsel in a colloquy as to whether defendant had made a prima facie showing of ineffective assistance of counsel to warrant a plenary hearing pursuant to State v. Preciose, 129 N.J. 451 (1992). Defense counsel stated that he was prepared only to address the time bar issue, as he understood the judge's directions at the February 8 hearing, and that counsel needed more time to "delve . . . into the case" to address the need for a prima facie showing of ineffective assistance of counsel.

The judge remarked that defendant's trial counsel "did a yeoman's job for this defendant," adding that "counsel below functioned in my opinion as an attorney in good standing, reasonably, prudently representing this particular defendant to the best of his ability. And in my opinion did nothing to require a plenary hearing . . . ." The judge thereupon concluded that "there's no reason . . . to order a plenary hearing because there's no prima facie showing that [defendant's trial counsel] was ineffective."

Defense counsel responded: "In February[,] Your Honor directed myself and the State to address one issue, that being whether or not this matter was time barred. And that's the only remand from the Appellate Division." Counsel argued further, "I haven't even submitted a brief relative to making a prima facie showing of ineffectiveness."

The judge then referred to the "viability" argument in defendant's letter brief, and regarded that as evidence that defendant had in fact addressed the issue of ineffective assistance of counsel. Counsel contended that the argument in the brief was "gratuitous," and requested additional time to "submit a much more . . . voluminous brief" and "investigate the case."

The trial judge denied counsel's request, stating that he had given counsel "the opportunity to address both issues, not just one," and commented, "I don't see the need -- if you wanted time to investigate this you had the time to do it. I'm not going to keep belaboring this. You made an argument. I'm ruling on the argument." The judge then found that defendant's "argument fail[ed] in terms of establishing a prima facie case" and denied his PCR petition.

On appeal, defendant raises the following arguments for our consideration:

POINT 1

THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

POINT 2

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF.

Because we concur with defendant's first argument, that the PCR judge precipitously denied defendant's ineffective assistance of counsel claim without affording him an opportunity to make a prima facie showing on that claim, we need not address defendant's second argument.

At the February 8, 2006 hearing, the judge set forth a schedule that clearly contemplated preliminary consideration of the time bar issue prior to consideration of the merits of defendant's ineffective assistance claim. This schedule made sense because, as the judge indicated, there would be no need to address the ineffective assistance claim until and unless the judge resolved the time bar issue in defendant's favor.

In establishing the future schedule and the parameters for the next hearing, the trial judge made the following statements:

I have to give . . . counsel for [defendant] the opportunity to show me why [the PCR petition is] not time barred.

. . . .

[I]t's going to be an issue of whether it's time barred. So, it's going to be a matter of pulling the file out. It's going to be a matter of looking at it, getting the law on the issue of post-conviction relief as to when it should be file[d], . . . . And decide from then as to what your position is going to be. So, it's not going to be the issue of what the arguments are for post-conviction relief.

. . . .

This is just the issue of whether it's time barred. . . . [PCR counsel has] got to talk to [defendant] and get to know a little about the case, and probably a little bit about what the issue for post-conviction relief would be assuming it isn't time-barred.

. . . .

[Counsel should] get . . . whatever legal argument [they were] going to make as to the issue of whether the petition is time barred or not. . . .

. . . .

[T]he whole issue that we're going to deal with then is going to be whether or not the petition is time barred . . . .

[Emphasis added.]

Thereafter, at the May 22 hearing, after ruling that defendant's PCR petition was not time barred, the trial judge proceeded to rule on the merits of defendant's ineffective assistance of counsel claim, finding that defendant had failed to make a prima facie showing on that claim sufficient to warrant a hearing.

Under the circumstances, we conclude that the PCR judge erred in dismissing defendant's petition without giving him an opportunity to make a prima facie showing of ineffective assistance of counsel. Defendant should be entitled to address and fully brief his ineffective assistance of counsel claim, and to have the trial judge render a determination, based upon that record, as to whether defendant has established a prima facie case warranting a plenary hearing.

"[T]rial courts ordinarily should grant an evidentiary hearing to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Preciose, supra, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), which we adopted in State v. Fritz, 105 N.J. 42, 58 . . . (1987). Under the Strickland-Cronic-Fritz standard, the first issue is whether counsel's performance was deficient . . . .

The second . . . prong of the Strickland-Cronic-Fritz test is whether there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

[Id. at 463-64 (citations omitted).]

Here, defendant was deprived of the opportunity to present a prima facie showing as a result of the judge's improper dismissal of his PCR petition at the May 22 hearing. Therefore, we reverse the order of May 25, 2006, and remand this matter for further proceedings in conformance with this opinion.

Reversed and remanded.

 

(continued)

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A-6529-05T4

 

December 1, 2008