Opinion
DOCKET NO. A-2664-13T1
01-20-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. O'SHEA CLARKE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-10-0757. Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant O'Shea Clarke appeals from a July 23, 2013 order denying his petition for post-conviction relief (PCR) without oral argument or an evidentiary hearing. Predicated upon our Supreme Court's decision in State v. Parker, 212 N.J. 269 (2012), we are constrained to remand.
We briefly recite the underlying procedural history of this matter. On October 27, 2004, defendant was indicted and charged with first-degree armed robbery, N.J.S.A. 2C:15-1(a) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); and first-degree bias intimidation, N.J.S.A. 2C:16-1 (count three).
The indictment arose from an incident on June 10, 2004, in North Plainfield, in which defendant and his accomplices beat a man with a baseball bat and robbed him. The victim sustained serious bodily injuries as a result of the unprovoked attack, including paralysis on one side of his body.
On May 23, 2006, defendant pled guilty to second-degree robbery (amended count one), as well as second-degree aggravated assault (count two). The plea agreement called for a sentence of twenty years in state prison, subject to a parole disqualifier of eighty-five percent of the sentence pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The agreement also called for restitution in the amount of $15,617.19. The sentence was to run concurrent to sentences defendant was serving on unrelated charges. Count three was to be dismissed. Defendant executed a written plea agreement, dated May 22, 2006, which delineated the terms of the agreement. Since defendant pled guilty to second-degree robbery and second- degree aggravated assault, he also executed a written supplemental plea form for convictions subject to NERA.
On September 25, 2006, defendant appeared for sentencing. The State sought an extended term on the second-degree robbery conviction, N.J.S.A. 2C:44-3. Defendant was sentenced to twenty years as an extended term on the robbery conviction, and a concurrent term of ten years on the aggravated assault conviction. The term of incarceration was subject to NERA, and was to run concurrent to other sentences imposed on the unrelated charges. Restitution in the amount of $15,617.19 was ordered.
Defendant appealed his sentence. By order dated February 10, 2011, we affirmed the term of the sentence but remanded the matter to the trial court for a restitution hearing and for modification of the judgment of conviction (JOC) to reflect a finding of mitigating factor six, N.J.S.A. 2C:44-1(b)(6). On remand, the judge reduced the amount of restitution and amended the JOC accordingly.
In August 2011, defendant filed a PCR petition, which was supplemented by appointed counsel. The PCR judge, without oral argument or an evidentiary hearing, denied the petition in a written opinion July 23, 2013. The opinion did not recite the reasons for the judge's determination not to hear oral argument. This appeal follows. Among the arguments of defendant is that the judge erred because "no oral argument [was] held regarding the allegations in the petition."
We note that a scheduling conference was held on January 30, 2012, setting forth a briefing schedule as well as a date for oral argument. There is no explanation in the record as to why oral argument was not held. --------
In Parker, the Supreme Court explained that a "general reference" to the lack of complexity of the issues in a PCR petition "is not helpful to a reviewing court when a defendant later appeals on the basis that the denial of oral argument was an abuse of the trial judge's discretion." Parker, supra, 212 N.J. at 282-83. The Court also agreed that there are "appropriate factors" that a trial judge should continue to weigh in deciding whether to permit oral argument, including "the apparent merits and complexity of the issues . . ., whether argument of counsel [would] add to the written positions . . ., and in general, whether the goals and purposes of the [PCR] procedure are furthered by oral argument." Parker, supra, 212 N.J. at 282 (quoting State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001)). Notwithstanding, the Court noted the "strong presumption in favor of oral argument in connection with an initial petition for [PCR,]" id. at 283, and required that a judge eschewing oral argument "provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary." Id. at 282.
Here, the judge decided defendant's first PCR petition on the papers and provided no explanation as to why oral argument was not conducted. Accordingly, in light of the clear directive in Parker, we are constrained to remand this matter for forty-five days to allow the judge to either hear oral argument and issue a reconsidered decision, or issue a statement of reasons as to why oral argument was denied. At this stage, we withhold comment on the merits of defendant's petition.
Remanded. We 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