STATE OF NEW JERSEY v. STEVEN PARKEY

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0332-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

STEVEN PARKEY, a/k/a
JAMES INGRAM, MICHAEL
PARKEY, SPANKY and SPANKEY
PARKEY,

     Defendant-Appellant.
__________________________________

              Submitted January 18, 2018 – Decided April 10, 2018

              Before Judges Rothstadt and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              11-03-0354.

              Joseph E. Krakora, Public Defender, attorney
              for   appellant   (Robert    Carter  Pierce,
              Designated Counsel, on the brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney   for   respondent  (Joie   Piderit,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant, Steven Parkey, appeals from the denial of his

petition for post-conviction relief (PCR) without an evidentiary

hearing.   For the reasons that follow, we vacate the order denying

PCR and remand for reconsideration.

     Defendant    pled      guilty   to    one     count    of     aggravated

manslaughter,    
N.J.S.A.    2C:11-4(a),    during    his   2014    trial      on

charges of murder, 
N.J.S.A. 2C:11-3(a)(1) to (3); attempted sexual

assault, 
N.J.S.A. 2C:5-1 and 
N.J.S.A. 2C:14-2(c); and weapons

charges, 
N.J.S.A. 2C:39-4(d) and 
N.J.S.A. 2C:39-5(d).                He pled

guilty during his trial while the jury was deliberating.                     The

judge imposed a sentence of twenty-five years' imprisonment, with

twelve and one-half years of parole ineligibility, in accordance

with defendant's plea agreement.

     During defendant's trial, the judge conducted a Sands1 hearing

to   determine   the     admissibility     of    defendant's     five     prior

convictions for indictable offenses.            At the conclusion of the

hearing, the judge held that his four earlier convictions could

not be admitted because they were too remote and ruled that only

defendant's last conviction from 2006 would be admissible.                   The

next day, however, the judge reconsidered her decision and ruled


1
   A court must conduct a hearing, pursuant to State v. Sands, 
76 N.J. 127 (1978), to determine whether a defendant's prior
convictions are admissible to impeach the defendant's credibility
if he or she testifies at trial.

                                     2                                  A-0332-16T4
that all five prior convictions could be admitted for impeachment

purposes.   Although defense counsel expressed his surprise and

asked the judge to reconsider, the judge maintained that all of

the convictions would be admitted.        Defendant thereafter decided

he would not testify and ultimately pled guilty to the aggravated

manslaughter.

     Defendant   filed   a   direct   appeal,   arguing   only   that   his

sentence was excessive.      We affirmed his sentence, but remanded

solely for the vacating of certain financial penalties imposed by

the trial judge.   State v. Parkey, No. A-4097-13 (App. Div. Sept.

3, 2014).

     Defendant filed a PCR petition on August 5, 2015, in which

he argued that he received ineffective assistance of trial counsel

because his attorney's "errors concerning [the] Sands hearing led

[him] to take a plea he otherwise would not have taken."          He also

contended that his attorney made errors in his arguments at

sentencing about the aggravating and mitigating factors that the

judge should consider before imposing sentence.            In addition,

defendant averred that the trial judge made errors in her Sands

determination and sentence, and that appellate counsel erred by

failing to raise those errors on appeal.

     A brief and an amended petition were submitted on behalf of

defendant in March 2016.     In this brief, defendant contended that

                                      3                            A-0332-16T4
trial counsel failed "to argue New Jersey Rule of Evidence 609 did

not apply" and "failed to argue any mitigating factors at [his]

sentencing."     He also asserted that the trial judge "erred by not

holding a Sands hearing pretrial[,]" and, citing State v. Slater,


198 N.J. 145 (2009), he argued that he should be allowed to

withdraw his plea.

      On August 24, 2016, the PCR judge, who was also the trial and

sentencing judge, issued an order and fifteen-page statement of

reasons denying defendant's petition.            However, she limited her

review of the Sands issues to her initial decision at trial to

admit defendant's one prior conviction in 2006.                  She concluded

that contrary to defendant's PCR arguments, he did not receive

ineffective assistance of counsel by virtue of her admission of

the one prior conviction, as there was no legal basis to exclude

it from being admitted if defendant testified.              The judge also

found   that    even   if   counsel   rendered   ineffective       assistance,

defendant would still have pled guilty to the one charge as he

received a very favorable plea offer that not only substantially

reduced his exposure to prison, but was also more favorable than

the   State's   pretrial    offer.     The   judge   did   not    mention   her




                                      4                                A-0332-16T4
subsequent decision during trial to admit all of defendant's other

prior convictions.2

     Defendant presents the following issues for our consideration

in his appeal.

                 POINT I

                 THE PCR COURT ERRED BY DENYING MR.
                 PARKEY   AN   EVIDENTIARY   HEARING
                 BECAUSE MR. PARKEY ESTABLISHED A
                 PRIMA FACIE CASE THAT DEFENSE
                 COUNSEL WAS INEFFECTIVE FOR HIS
                 FAILURE TO ARGUE TO THE TRIAL COURT
                 THAT FED. R. EVID. 609(b) WAS
                 CONTROLLING AT MR. PARKEY'S SANDS
                 HEARING.

                      A.   THE    PREVAILING    LEGAL
                 PRINCIPLES   REGARDING   CLAIMS   OF
                 INEFFECTIVE ASSISTANCE OF COUNSEL,
                 EVIDENTIARY HEARINGS AND PETITIONS
                 FOR POST CONVICTION RELIEF.

                       B.  TRIAL COUNSEL PROVIDED
                 INEFFECTIVE ASSISTANCE OF COUNSEL
                 AT THE PLEA STAGE BECAUSE COUNSEL
                 FAILED TO PROPERLY ARGUE THE SANDS
                 MOTION, WHICH WAS THE REASON FOR THE
                 PLEA.




2
   According to defendant, the judge was not provided on PCR with
a copy of the trial transcript from the day on which she
reconsidered her decision and allowed all of the convictions to
be admitted.


                                  5                        A-0332-16T4
                  POINT II

                  MR PARKEY WAS DEPRIVED OF THE
                  EFFECTIVE   ASSISTANCE   OF     PCR
                                              [3]
                  COUNSEL. (Not Raised Below).

      Under the circumstances presented here, we are constrained

to vacate the denial of defendant's petition and remand for

reconsideration of his petition anew to allow the judge to evaluate

his entitlement to relief in the context of the judge's actual

Sands decision and the events that occurred at trial.

      The order under appeal is vacated and the matter is remanded

to   the   Law   Division   for   reconsideration.   We   do   not    retain

jurisdiction.




3
  We need not address this contention in light of our disposition
of this appeal and since claims of ineffective assistance of PCR
counsel are best addressed in a second petition for relief. See
R. 3:22-4(b)(2)(C).

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