STATE OF NEW JERSEY v. JASON AMORATIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2669-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON AMORATIS,

Defendant-Appellant.

____________________________

January 10, 2013

 

Submitted December 19, 2012 - Decided

 

Before Judges Grall and Simonelli.

 

On appeal from Superior Court of New
Jersey, Law Division, Camden County,

Indictment No. 05-04-1343.

 

Joseph E. Krakora, Public Defender,

attorney for appellant (Karen A.

Lodeserto, Designated Counsel, on

the brief).

 

Warren W. Faulk, Camden County Prosecutor,

attorney for respondent (Nancy P. Scharff,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant Jason Amoratis appeals from the denial of his petition for post-conviction relief. The judgment of conviction and sentence was entered on defendant's entry of a guilty plea to one count of first-degree robbery committed with a handgun. N.J.S.A. 2C:15-1. He entered that plea and agreed to give a truthful statement about the activities of one of his two confederates and to testify at his trial if necessary, in return for a plea bargain offered by the State. The State promised to dismiss the remaining counts of the indictment, including two additional counts of first-degree robbery; to recommend a seventeen-year term of imprisonment subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2; and to seek imposition of the mandatory fines, penalties and assessments and an obligation to make restitution to all of his victims.

At the time of his plea, defendant admitted that on October 30, 2004, he confronted Nupar Shah, a pizza delivery man who was returning to his car. Defendant explained that he lifted his shirt to show Shah his black handgun, told Shah to give him all of his money, took the money Shah gave him and told Shah to get in his car and drive away. Shah complied. Following defendant's arrest, he gave the police a statement acknowledging commission of the crime.

The court accepted defendant's guilty plea, and on April 21, 2006, imposed a sentence in conformity with the plea agreement. On a direct appeal submitted for disposition following oral argument pursuant to Rule 2:9-11, on March 27, 2007, we affirmed defendant's sentence with the exception of the obligation to make restitution, which we vacated and remanded for redetermination following a hearing. The order entered on remand is not included in the appendix on appeal.

Defendant filed his pro se petition for post-conviction relief on November 28, 2008. He identified the following grounds for relief: 1) ineffective assistance of counsel because trial counsel (a) was unprepared, (b) never investigated, (c) refused to file motions for "Preliminary Hearing and File for Appeal," and (d) tricked him into taking a plea agreement; 2) that the court erred by accepting petitioner's plea because it was the involuntary product of intimidation and coercion; 3) that the State withheld evidence that would show that defendant was not involved in any crime; and 4) that his sentence is unconstitutional. Defendant also filed a pro se brief in support of his claims, which included a request for a copy of the grand jury minutes, his plea, discovery provided and a transcript of the sentencing hearing.

Subsequently, a "pool attorney" filed a brief in support of defendant's petition. The attorney argued that counsel was ineffective for failing to 1) advocate for defendant's entry into a drug program or drug court; 2) investigate and interview witnesses; 3) discuss defendant's right to trial with him or develop defenses to the charges; and 4) investigate and point out mitigating factors. The attorney also contended that defendant's sentence was unjust and improper and that his sentence should be set aside due to cumulative errors in the sentencing phase. In addition, he incorporated the arguments defendant raised in his petition without identifying them or those that overlapped with the arguments counsel had advanced.

The petition was decided without oral argument by a judge who had not presided over the plea or sentencing. He concluded that defendant's arguments could and should have been raised on direct appeal and that consequently defendant was barred from raising the "ineffective assistance [of counsel] claims in the instant petition." In that regard, the judge noted that defendant "relie[d] exclusively on the record" below and had not "identif[ied] any other information that counsel should have raised yet failed to argue" at sentencing.

Despite that determination, the judge went on to address the merits. Unfortunately, documents defense counsel referenced in the brief he filed in the trial court have not been included in the record provided on appeal. Moreover, the judge's written decision on the petition includes references to documents included in appendices accompanying the briefs counsel for defendant and the State submitted on the petition that are not included in the appendices provided on appeal.

On appeal, defense counsel provides nothing other than the order entered by this court on defendant's direct appeal, defendant's pro se petition, the supplemental brief provided by counsel, the judge's written decision and order and the notice of appeal. The State supplied a fifty-page appendix on appeal, but the citations to the record included in the judge's written decision indicate that the State's appendix submitted on the petition included at least 174 pages.

On this appeal, defendant contends that he was entitled to an evidentiary hearing on his claims of ineffective assistance of counsel. The Supreme Court has recently and eloquently reminded judges of this court and the trial court, as well as counsel, of the importance of post-conviction relief to this State's criminal justice system. State v. Parker, 212 N.J. 269, 278-84 (2012).

There is no reason to reiterate the fundamental principles articulated in Parker here. It suffices to note that they would not be served by addressing the issues raised on this appeal without a complete record. A complete record is essential to determining whether the judge's findings are supported by or inconsistent with the record and whether resolution of the issues raised requires a testimonial hearing. State v. Preciose, 129 N.J. 451, 462 (1992). Accordingly, we dismiss the appeal without prejudice and refer the matter to the attention of the public defender so that an attorney may be assigned to submit a record that includes all materials submitted to and considered by the trial court and a brief that includes citations to that record. Cf. Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002) (affirming on the ground that the appellant had failed to provide a record adequate to establish the errors raised on appeal).

The appeal will be reinstated on the condition that a motion to reinstate is filed by assigned counsel within forty-five days and is accompanied by the following:

a) a certification or affidavit of assigned counsel attesting to the completeness of the record provided to this court;

b) an appendix with an index prepared in conformity with Rule 2:6-1 that includes the entire record considered by the trial court (except items filed separately such as the pre-sentence report and transcripts); and

c) a brief that includes citations to the record.

To avoid confusion and recognizing that there may be some overlap, we identify items referenced in the briefs submitted to the trial court and the trial court's decision that have not been provided to this court:

a. The statement defendant made on December 10, 2004;

b. The statement of Nupar Shah;

c. Defendant's certification in support of the petition;

d. The appendix filed in the trial court on behalf of defendant in support of the petition;

e. The appendix filed by the State in the trial court in opposition to defendant's petition;

f. The Promis-Gavel record referenced by the trial court;

g. The order entered by the trial court on remand from this court;

h. The pretrial form;

i. The confessions of defendant's co-defendants;

j. A "taped statement" made by Amanda Pignatelli;

k. The State's correspondence transmitting discovery; and

l. Correspondence written by the attorney who represented defendant at the time of his guilty plea.

The appeal is dismissed without prejudice and is subject to reinstatement on conditions set forth above.