STATE OF NEW JERSEY v. RODNEY R. ROBERTS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4687-05T44687-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY R. ROBERTS,

Defendant-Appellant.

_____________________________________________________

 

Argued May 9, 2007 - Decided May 22, 2007

Before Judges Stern and Lyons.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Accusation No. 96-070-1128.

John Douard, Assistant Deputy Public

Defender, argued the cause for appellant

(Yvonne Smith Segars, Public Defender,

attorney; Mr. Douard, of counsel and on

the brief).

Barbara A. Rosenkrans, Assistant Prosecutor,

argued the cause for respondent (Paula T.

Dow, Essex County Prosecutor, attorney;

Ms. Rosenkrans, on the brief).

PER CURIAM

Defendant appeals from an order of April 17, 2006 denying his motion "for post-conviction relief-to withdraw guilty plea." The trial judge concluded that "[t]he identical motion was already denied by [him] on January 18, 2001," and that this post-conviction motion was not filed within the five year period embodied in R. 3:22-12 and contained no basis for a finding of "excusable neglect" with respect thereto.

On this appeal defendant argues that "because [he] was denied his right to the appointment of counsel on his 2001 motion, it cannot be considered a valid first PCR petition, and the denial of the instant PCR petition without appointment of counsel or a hearing violated both the Rules of Court and the right to assistance of counsel." He also argues that his "pro se petition for post-conviction relief presented new evidence that raised the issue of ineffective assistance of counsel, a possible violation of due process, and a right to a trial."

By "post-conviction relief order assigning counsel and reference for disposition," entered on April 3, 2006, the Public Defender was "assigned to provide representation to the defendant in [the] matter." That order could be deemed dispositive of the right to counsel, whether or not the application was defendant's first or second petition. See R. 3:22-6(a)(b). However, the assigned judge denied the petition for the above mentioned reasons, by letter dated April 17, 2006, prior to the filing of any papers by counsel and in the absence of a hearing. If this was defendant's first petition for post-conviction relief, defendant would be entitled to the assignment of counsel, R. 3:22-6(a). See also State v. Rue, 175 N.J. 1, 16-17 (2002). Even if the 2001 application can be deemed the equivalent of a PCR petition that application was also denied after the matter was referred to the Public Defender "for further action and assignment of counsel," but before counsel was assigned to the case.

Defendant was entitled to the assistance of counsel on the 2006 PCR petition, even if it is ultimately deemed out of time or procedurally barred. He was entitled to the assistance of counsel to address those issues. See State v. Rue, supra; State v. Webster, 187 N.J. 254 (2006); State v. Picciotti, 231 N.J. Super. 111 (App. Div. 1989).

We reverse and remand to permit counsel to make a presentation including why the PCR application should not be considered out-of-time or otherwise procedurally barred. We do not address the merits in any way. Jurisdiction is not retained.

 

(continued)

(continued)

3

A-4687-05T4

RECORD IMPOUNDED

May 22, 2007