STATE OF NEW JERSEY v. DWAYNE STARKS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6247-04T46247-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DWAYNE STARKS,

Defendant-Appellant.

________________________________

 

Submitted November 1, 2006 - Decided December 29, 2006

Before Judges Wefing and Parker.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

No. 92-04-1422.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jodi L. Ferguson,

Assistant Deputy Public Defender, of

counsel and on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Gary A. Thomas,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

Tried to a jury, defendant was convicted in 1993 of three counts of first-degree robbery, N.J.S.A. 2C:15-1; three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b and 39-5c(1); one count of second-degree conspiracy, N.J.S.A. 2C:5-2; and one count of third-degree receiving stolen property, N.J.S.A.

2C:20-7. The trial court sentenced defendant to an aggregate term of thirty years in prison and specified defendant had to serve fifteen years before becoming eligible for parole. Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Starks, No. A-4431-92 (App. Div. February 28, 1995). The Supreme Court denied defendant's petition for certification. State v. Starks, 141 N.J. 94 (1995).

In July 1999 defendant filed a pro se petition for post-conviction relief. Counsel was assigned to represent defendant in connection with this petition, and counsel prepared a brief on defendant's behalf which was submitted in 2001. Counsel then submitted supplementary material in support of defendant's position that excusable neglect existed for defendant having filed his petition beyond the five-year deadline contained in R. 3:22-12. Counsel thereafter three times wrote to the trial court in 2003 and 2004, inquiring as to the status of this petition, but no response was received. The record before us does not indicate that the State ever filed a brief in opposition to defendant's petition. Defendant heard nothing further about this matter until receiving a copy of the trial court's opinion and its order dated May 2, 2005, denying the petition.

Defendant raises the following arguments on appeal:

POINT I

DEFENDANT MADE A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AND, THUS, AN EVIDENTIARY HEARING SHOULD HAVE BEEN HELD.

POINT II

IF THE COURT REJECTS DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING, THEN THE MATTER SHOULD BE REMANDED FOR A HEARING WHERE COUNSEL CAN PRESENT DEFENDANT'S CLAIMS.

POINT III

BECAUSE DEFENDANT RAISES ISSUES OF CONSTITUTIONAL MAGNITUDE, HIS PETITION FOR POST-CONVICTION SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO R. 3:22-12.

We do not find it necessary to address the issues defendant raises in his first and third arguments because we are satisfied that the matter should be reversed and remanded to afford defendant the opportunity, through his attorney, to present oral argument in support of his petition. We noted in State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001), the "significant presumption in favor of granting oral argument" in connection with a petition for post-conviction relief. In reaching this conclusion, we stated:

Whether oral argument before the post-conviction relief court is necessary and appropriate is currently left to the sound discretion of that court. In our view, that discretion should be generally exercised in favor of oral argument. We note that litigants are entitled to oral argument on civil motions, except where the motion involves pretrial discovery or calendar matters. R. 1:6-2(d). The availability of oral argument on criminal motions is implicit within the language of R. 1:6-2(a). In this court, any appeal, regardless of its nature, includes oral argument if any party to the appeal makes such a request. R. 2:11-1(b). The issues at stake on an initial petition for post-conviction relief are no less significant than those typically presented when the court rules ensure oral argument.

[Id. at 386.]

In light of the presumption in favor of oral argument, there should be a greater reason for a trial court proceeding without it than its opinion that it could decide the matter on the papers.

Oral argument, moreover, may well have provided either greater support for defendant's position that his trial counsel was ineffective for failure to call two alibi witnesses or provided support for the trial court's conclusion that his attorney was not ineffective in this regard. The record is silent on the question now. "In light of what is at stake for a defendant, a safeguard designed to ensure that a defendant was not unjustly convicted should be provided in a meaningful manner." Id. at 387-88.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

 

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A-6247-04T4

December 29, 2006