Opinion
DOCKET NO. A-1760-13T1
04-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERRY BATTLE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Charles P. Savoth, III, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 90-01-0730. Joseph E. Krakora, Public Defender, attorney for appellant (Charles P. Savoth, III, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In 1990, defendant pleaded guilty to a drug offense and was sentenced to a seven-year prison term. Defendant did not appeal but instead, in 2012, filed a post-conviction relief (PCR) petition, asserting he did not know his 1990 guilty plea would lead to enhancement of a federal sentence imposed in 2008. By letter dated July 31, 2013, the judge advised the parties of a hearing scheduled for September 27, 2013. The judge denied the PCR petition, however, before the scheduled hearing date arrived. In his September 12, 2013 order and opinion denying the petition, the judge relied on State v. Wilkerson, 321 N.J. Super. 219 (App. Div.), certif. denied, 162 N.J. 128 (1999), which held defense attorneys are not required to advise their clients of the impact their guilty pleas may have on sentences for later federal offenses.
The record does not reveal when the federal offenses were committed.
The State also challenged the timeliness of the PCR petition. It appears the judge did not rule on that issue, although the copy of the judge's opinion contained in the appendix appears to be incomplete.
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Defendant appeals, arguing in a single point that the judge precipitously ruled on the PCR petition without oral argument, citing State v. Parker, 212 N.J. 269, 283 (2012), which holds, as did our earlier decision in State v. Mayron, 344 N.J. Super. 382, 384 (App. Div. 2001), that "there is a strong presumption in favor of oral argument in connection with an initial petition for post-conviction relief." Defendant is correct, and we find no merit in the State's argument that Parker should not be applied rigorously when "there is nothing in the record, such as a certification by [PCR] counsel, indicating that she wanted to orally argue the matter." As the Parker Court held, "we consider it of no moment that the papers did not contain a specific request for oral argument." 212 N.J. at 283. We reverse and remand for the proceedings required by Parker.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION