STATE OF NEW JERSEY v. RAPHAEL POWELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04239-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAPHAEL POWELL,

Defendant-Appellant.

________________________________

November 30, 2015

Submitted November 17, 2015 Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-09-1483.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Raphael Powell appeals from a March 6, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we reverse the order on appeal and remand this matter to the trial court for a new sentencing hearing.

Defendant pled guilty to first-degree aggravated manslaughter and was sentenced on September 19, 2008 to fifteen years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. His attorney did not file a notice of appeal on defendant's behalf. On February 4, 2013, defendant filed a pro se PCR petition.1 His assigned PCR counsel filed an amended petition in June 2013. The petition sought to raise issues that should have been raised in a direct appeal challenging defendant's sentence, and argued that there were additional issues that defense counsel should have raised at the sentencing hearing. However, defendant also contended that defendant's trial attorney rendered ineffective assistance of counsel in failing to file an appeal, although defendant asked him to file the appeal. The latter contention was supported by defendant's certification.

After reviewing the record, we conclude that defendant presented a prima facie case that his former trial counsel rendered ineffective assistance in failing to file a notice of appeal on defendant's behalf. Hence, the trial court should have held an evidentiary hearing on that issue. See State v. Preciose, 129 N.J. 451, 462 (1992). However, on this record, rather than remand for an evidentiary hearing, we will deem defendant's PCR filing to constitute his notice of appeal from the judgment of conviction and we will adjudicate this matter as defendant's direct appeal.

After reviewing the sentencing transcript, we are persuaded that the matter must be remanded for resentencing, because the trial judge erroneously considered the harm to the victim's family as an aggravating factor. See State v. Lawless, 214 N.J. 595, 612 (2013); State v. Radziwil, 235 N.J. Super. 557, 575 (App. Div. 1989), aff'd o.b., 121 N.J. 527 (1990); see also State v. Carey, 168 N.J. 413, 424 (2001) (resentencing is required when a trial court considers an improper aggravating factor). At the new sentencing hearing on remand, defense counsel may present any mitigating factors that may be applicable, and may argue against any aggravating factors the State may present. We intimate no view as to the appropriate sentence that should be imposed on remand.

Because defendant's remaining PCR arguments concerned his counsel's failure to raise mitigating factors or argue against aggravating factors, we need not address those issues here, since defendant will receive a new sentencing hearing.

Reversed and remanded. We do not retain jurisdiction.

1 The petition was filed less than five years after the entry of the judgment of conviction, and hence was timely as a PCR petition. R. 3:22-12(a)(1). See also State v. Molina, 187 N.J. 531 (2006) (setting standards for consideration of late-filed notices of appeal in criminal cases).