STATE OF NEW JERSEY v. JEFFREY TOTH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3660-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY TOTH,

Defendant-Appellant.

____________________________________

Submitted May 5, 2014 Decided July 3, 2014

Before Judges Yannotti and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-04-0643.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Matthew P. Tallia, on the brief).

PER CURIAM

Defendant Jeffrey Toth appeals from a December 10, 2012 order denying his petition for post-conviction relief (PCR). We reverse and remand for compliance with the requirement of State v. Parker, 212 N.J. 269, 282 (2012), that the court either hold oral argument on a first PCR petition or explain why oral argument is not necessary.

A Middlesex County grand jury returned an eleven-count indictment against defendant charging the armed robberies of a 7-11 and a Quick Chek convenience store in Woodbridge during the early morning hours of September 5, 2007. At the 7-11, an employee struggled with the robber, and the robber fled. The employee reported to the police that the robber had a knife. A short time after the first robbery, the robber threatened the clerk at the Quick Chek store with a screwdriver and then grabbed a small amount of cash out of the cash register.

Defendant was identified more than a year later after he was heard bragging about the robberies. Through surveillance recordings, the police obtained an identification of him as the robber, and he was arrested in October 2008. He admitted he committed the robberies, and he was subsequently indicted in April 2009.

On July 22, 2009, defendant entered into a plea agreement with the Middlesex County Prosecutor's Office by which he agreed to plead guilty to two counts of first-degree armed robbery in exchange for a maximum sentence of fifteen years imprisonment and dismissal of the other counts of the indictment. Defendant entered the guilty plea the same date.

On September 21, 2009, the court sentenced defendant to ten years imprisonment, which is ordinarily the minimum sentence for a first-degree crime. As provided in the plea agreement, defendant must serve eighty-five percent of the prison term and an additional five years of special parole supervision in accordance with the No Early Release Act, N.J.S.A. 2C:43-7.2. He did not appeal his conviction or sentence.

In January 2012, defendant filed a pro se PCR petition alleging that his attorney had failed to argue mitigating factors that should have been considered by the sentencing judge. New counsel was appointed to represent defendant for the PCR petition. PCR counsel's brief alleged a different ground for relief in support of the petition, that defense counsel at the time of the guilty plea had been ineffective because he failed to pursue meritorious defenses to the robbery charges, namely, that defendant's conduct was the result of psychological deficits or intoxication.

The same judge who had taken defendant's guilty plea and sentenced him considered the PCR papers that were filed. The judge issued a memorandum decision and order on December 10, 2012, dismissing the petition without an evidentiary hearing. The judge determined that defendant's attorney had in fact argued for the mitigating factors raised in the PCR petition, and that the PCR petition did not establish a prima facie showing of ineffective assistance of counsel on the ground that defense counsel had failed to pursue insanity and intoxication defenses.

On appeal before us, defendant argues:

POINT I

THIS MATTER MUST BE REMANDED FOR ORAL ARGUMENT. (Not Raised Below).

POINT II

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING ON MR. TOTH'S CLAIM THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO INVESTIGATE AN INTOXICATION DEFENSE AND DISCUSS IT WITH HIM BEFORE HE RENDERED A DECISION ABOUT WHETHER TO ENTER INTO A GUILTY PLEA OR PROCEED TO TRIAL.

We are compelled to remand this matter to permit counsel to present oral argument to the PCR judge in accordance with the holding of Parker, supra, 212 N.J. at 282, which preceded the PCR court's order and decision by almost two months. In Parker, the Supreme Court held there is a "significant presumption in favor of oral argument" on a first PCR petition. Ibid. (quoting State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001)). The Court added that the PCR judge retains a "residuum of discretion" in deciding whether oral argument should be held, but the judge must approach the issues raised with a view in favor of hearing oral argument. Ibid. Significantly, "when the trial judge does reach the determination that the arguments presented in the papers do not warrant oral argument, the judge should provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary." Ibid.

Here, the judge did not hold oral argument, and his memorandum decision did not address the reasons that the judge may have concluded it was unnecessary. We remand for the trial court to permit oral argument and to reconsider denial of the PCR, or alternatively, to provide a written explanation in accordance with the specific directives of Parker of why the court concluded it could dispense with oral argument.

Reversed and remanded. We do not retain jurisdiction.