STATE OF NEW JERSEY v. DEREK BETHEA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEREK BETHEA, a/k/a

DERICK BETHEA,

Defendant-Appellant.

________________________________________________________________

October 22, 2013

 

Submitted October 1, 2013 Decided

 

Before Judges Espinosa and Koblitz.

 

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).

 

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In an unpublished opinion, we affirmed defendant's convictions but remanded for re-sentencing.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 We affirmed his sentence in an unpublished order.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 THE CHARGES IN THESE MATTERS.

 

POINT II

 

THE DEFENSE SHOULD HAVE BEEN ALLOWED TO PRESENT A DEFENSE OF SELECTIVE ENFORCEMENT.

 

POINT IV

 

COUNSEL FAILED TO COMMUNICATE WITH HIS CLIENT AS REQUIRED BY THE RULES OF PROFESSIONAL RESPONSIBILITY OF THE STATE OF NEW JERSEY.

 

POINT V

 

COUNSEL FAILED TO ENTER ALL APPROPRIATE OBJECTIONS OR, WHEN OBJECTIONS WRE ENTERED, TO PROPERLY EXPLAIN TO THE COURT THE REASONS FOR THE OBJECTIONS.

 

POINT IV

 

CUMULATIVE ERROR.

 

POINT VII

 

THE FLIGHT CHARGE WAS INAPPLICABLE TO THIS CASE.

 

POINT VIII

 

APPELLATE COUNSEL WAS INEFFECTIVE.

 

POINT IX

 

(A) PETITIONER'S CIVIL RIGHTS WERE VIOLATED.

 

(B) THE PLAINTIFFS' ACTIONS WERE DISCRIMINATORY AND ILLEGAL.

 

POINT X

 

ALL POINTS RAISED BY PETITIONER IN ANY AND ALL PRIOR SUBMISSIONS TO THE COURT ARE HERETOFORE INCORPORATED BY REFERENCE INTO THIS SUPPLEMENTAL BRIEF.

 

The PCR judge denied the petition by order dated October 29, 2010, which was accompanied by a written statement of reasons. In denying the petition, the PCR judge identified it as defendant's second petition and therefore governed by Rule 3:22-12(a)(2). The judge found the petition was untimely and failed to establish good cause under Rule 3:22-4(b) that would warrant a hearing.

Defendant filed an appeal from this order, presenting the following arguments:

POINT I

 

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR ASSIGNMENT OF COUNSEL AND A REHEARING BECAUSE THIS WAS DEFENDANT'S FIRST PETITION FOR POST-CONVICTION RELIEF ON HIS CONVICTION ON ATLANTIC COUNTY INDICTMENT NO. 05-06-1235.

 

 

POINT II

 

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL WAS VIOLATED.

Defendant also filed a motion for summary disposition and remand for assignment of counsel, in which he asserted that this was his first PCR petition. We granted this motion. The State then filed a motion for reconsideration, asserting that a review of Promis/Gavel court records shows this was defendant's second petition. The State's motion for reconsideration was granted; the order granting summary disposition was vacated and the matter returned to our plenary calendar.

The primary issue in this appeal is whether this was defendant's first or second PCR petition. Although not produced by either party, the records of the court include an order dated August 7, 2006, which states, in part, "the Petitions of the defendant for Post-Conviction Relief (PCR's) are hereby dismissed without prejudice." A copy of this order was provided to counsel by the court and produced no response.

Rule 3:22-3 provides that a petition for post-conviction relief is not a substitute for a direct appeal "and may not be filed while such appellate review . . . is pending." Because defendant's first PCR petition was filed while his direct appeal was pending, it was properly dismissed without prejudice. Accordingly, defendant's present petition should be considered defendant's first PCR petition. We note that this petition was filed within the five-year period prescribed by Rule 3:22-12, and therefore, was not time-barred. Therefore, we reverse the order denying defendant's petition without a hearing and remand for the appointment of counsel and consideration of the petition on its merits.

Reversed and remanded. We do not retain jurisdiction.

1 The facts underlying defendant's convictions are set forth in our opinion of January 19, 2007 and need not be repeated here.