STATE OF NEW JERSEY v. JONATHAN BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONATHAN BROWN,

Defendant-Appellant.

_______________________________________________________

February 14, 2014

Submitted February 4, 2014 Decided

Before Judges Fisher, Espinosa and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-04-1344.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal of an order denying post-conviction relief (PCR), defendant argues, among other things, that the trial judge erroneously ruled without hearing oral argument. We find no error and affirm.

Defendant was charged with three counts of first-degree robbery, N.J.S.A. 2C:15-1, three counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(a), and one count of second-degree burglary, N.J.S.A. 2C:18-2(a)(1). Prior to trial, he unsuccessfully moved for the suppression of his videotaped confession and entered a guilty plea to one count of second-degree robbery. On October 28, 2009, the trial judge sentenced defendant to a nine-year prison term subject to an 85% period of parole ineligibility.

Defendant waived his right to appeal. Defendant did, however, file a pro se PCR petition on December 22, 2010, asserting only the judge's failure to find any mitigating factors when imposing sentence.

Through assigned counsel, defendant later filed a brief, which posed additional arguments. Specifically, the brief contained arguments that defendant was denied the effective assistance of counsel because his trial attorney allegedly failed: to argue mitigating factors at sentencing; to adequately explain the plea process and the ramifications of a guilty plea; to conduct a sufficient pretrial investigation or consider potential defenses; and to argue against a NERA sentence. None of these new arguments were supported by sworn statements. The record in the trial court, however, contained defendant's trial attorney's certification, which asserted that he fully informed defendant of the nature of the proceedings, the significance of his confession, and their discussion of the plea negotiations, concluding:

[Defendant] was not shocked or surprised by what happened at the Miranda hearing. He had read his own words and discussed them with me. We discussed his options. He made a decision to plea. He did so with full knowledge of what he was doing.

Defendant did not respond to this certification. Without conducting oral argument, the trial judge denied the PCR petition for reasons expressed in a thorough written decision.1

Defendant appeals the denial of his PCR petition, arguing:

I. THE INSTANT MATTER MUST BE REMANDED TO THE PCR COURT TO DETERMINE IN AN EVIDENTIARY HEARING WHETHER MR. BROWN'S MIRANDA[2] RIGHTS WERE GIVEN TO HIM WITHOUT FIRST INFORMING HIM THAT CRIMINAL COMPLAINTS HAD BEEN SIGNED (Not Raised Below).

II. TRIAL DEFENSE COUNSEL DENIED MR. BROWN HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO THE SIXTH AND FOURTEENTH AMEND-MENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION BY FAILING TO ENSURE THAT MR. BROWN UNDERSTOOD THE PLEA PROCESS, PARTICU-LARLY THE RAMIFICATIONS OF A GUILTY PLEA, BECAUSE MR. BROWN HAD INSUFFICIENT OPPOR-TUNITY TO CONSIDER THESE RAMIFICATIONS PRIOR TO ENTERING HIS GUILTY PLEA.

III. THE FAILURE OF TRIAL DEFENSE COUNSEL TO ADEQUATELY INVESTIGATE AND CONSIDER POTEN-TIAL DEFENSES AMOUNTED TO INEFFECTIVE ASSIS-TANCE OF COUNSEL IN VIOLATION OF MR. BROWN'S RIGHT TO COUNSEL PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

IV. MR. BROWN RECEIVED INEFFECTIVE ASSIS-TANCE OF COUNSEL AT SENTENCING IN THAT COUN-SEL FAILED TO ARGUE APPLICABLE MITIGATING FACTORS AND AGAINST AGGRAVATING FACTORS.

V. THE PCR COURT ABUSED ITS DISCRETION BY DECIDING THE MATTER ON THE PAPERS, AND THIS COURT SHOULD NOW GRANT MR. BROWN AN EVIDENTIARY HEARING.

VI. ALL POINTS RAISED BY MR. BROWN IN HIS PRO SE PETITION AND IN ANY OTHER SUBMISSION TO THE COURT ARE HEREBY INCORPORATED BY REFERENCE INTO THIS BRIEF.

We find insufficient merit in these arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons set forth by the trial judge in his written opinion. We add only the following brief comments regarding defendant's Point V.

The record demonstrates that defendant's PCR petition was denied on October 27, 2011, on the papers.3 Defendant argues the denial of oral argument constituted an abuse of discretion4 and that we should now remand for an evidentiary hearing. First, even if we were to agree that oral argument should have been permitted, its denial would not necessitate an evidentiary hearing on the merits of the PCR petition; such a determination would simply warrant a remand to allow for the presentation of oral argument and a reconsideration of the PCR petition in light of that argument.

Moreover, we find no abuse of discretion in the denial of oral argument. Although the Supreme Court has identified factors to be examined when a judge considers whether to dispense with oral argument, and has concluded that these factors "should be approached with the view that oral argument should be granted," State v. Parker, 212 N.J. 269, 282 (2012), the Court decided Parker on October 16, 2012, a year after the trial judge denied defendant's PCR petition. And, while we are mindful that the judge's decision to rule on this PCR petition without oral argument was governed by our earlier opinion that there is "a significant presumption in favor of oral argument [i]n light of what is at stake for a defendant," State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001), defendant has not demonstrated that his PCR petition presented any complexities or that the purposes underlying the post-conviction procedure would be furthered by oral argument.

In short, although Parker strongly counsels in favor of permitting oral argument in all PCR matters, we find no compelling reason to apply that admonition retroactively, nor do we find an abuse of discretion in the dispensation of oral argument here.

1The same judge presided over all proceedings in this matter.

2Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3There is nothing in the record to illuminate whether PCR counsel consented or objected to the dispensation of oral argument or sought reconsideration in light of the disposition of the PCR petition without oral argument.

4The record is silent as to the reasons why there was no oral argument. We assume, for argument purposes only, that the judge barred it.