STATE OF NEW JERSEY v. RASHAWN MCCLINTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0615-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHAWN MCCLINTON,

Defendant-Appellant.

_______________________________

November 9, 2012

Submitted: October 24, 2012 - Decided:

Before Judges Axelrad and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-01-0081.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Michael A. Nardelli,Assistant Prosecutor,of counsel and on the brief).

PER CURIAM

Defendant Rashawn McClinton was convicted by a jury in 2005 of four counts of first-degree robbery, four counts of third-degree theft, and six weapons offenses. The theft counts were merged with the robbery counts, several of the weapons offenses were merged, and defendant was sentenced to a fourteen-year custodial term subject to the 85% mandatory parole ineligibility term under NERA for each of the four counts of robbery, to run concurrently, a three-year concurrent term for possession of a sawed-off shotgun, and a consecutive term of nine months for certain persons not to possess a weapon.

Defendant appealed his conviction. We affirmed in an unpublished opinion. State v. McClinton, No. A-1321-05 (App. Div. Nov. 6, 2006). The Supreme Court denied certification. State v. McClinton, 190 N.J. 392 (2007).

On September 6, 2007, defendant filed a pro se petition for post-conviction relief (PCR), alleging ineffective assistance of trial counsel in failing to: (l) contest the use and request a mistrial based on the admission of an incriminating statement by Patrolman Rosena attributed to defendant's wife; (2) challenge the excessive number of law enforcement officers surrounding him during the course of his trial; and (3) request a limiting instruction related to his involvement in an unrelated domestic violence incident. He also asserted cumulative error warranting reversal of his conviction. Defendant further argued ineffective assistance of appellate counsel in failing to raise these challenges on appeal.

PCR counsel alleged ineffective assistance of defendant's trial counsel in failing to: (l) file a suppression motion regarding the sawed-off shotgun seized from under the porch of defendant's sister's house and file other suppression motions regarding the anonymous tip and recanted testimony; (2) request a Wade hearing; and (3) communicate with defendant on a timely basis.

By written decision and order of March 12, 2010, the court denied defendant's motion for PCR on the papers. Among other challenges on appeal, defendant urges that the order should be reversed and the matter should be remanded for a rehearing based on his lack of an opportunity to present oral argument.

On October 16, 2012, during the pendency of this appeal, our Supreme Court decided the case of State v. Parker, ___ N.J. ___ (2012). There, the Court noted that "Rule 3:22 contains no explicit statement with respect to whether a defendant is entitled to present oral argument in support of his petition" for PCR. Parker, supra, slip op. at 13. Though noting the discretion of the trial judge in deciding whether to hear oral argument on a PCR petition, the Court stressed that in considering and weighing the factors articulated in State v. Flores, 228 N.J. Super. 586 (App. Div. l988), certif. denied, 115 N.J. 78 (l989), and State v. Mayron, 344 N.J. Super. 382 (App. Div. 200l), "they should be approached with the view that oral argument should be granted." Parker, supra, slip op. at 13-15. The Court elaborated:

Just as when determining whether a defendant is entitled to an evidentiary hearing in connection with his petition for post-conviction relief the facts should be "view[ed] in the light most favorable to a defendant," State v. Preciose, 129 N.J. 451, 463 (l992), so, too, in determining whether to entertain oral argument, the facts should be viewed through the same generous lens.

Further, 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. A general reference to the issues not being particularly complex is not helpful to a reviewing court when a defendant later appeals on the basis that the denial of oral argument was an abuse of the trial judge's discretion.

We have noted our agreement with the statement in Mayron, supra, that there is a strong presumption in favor of oral argument in connection with an initial petition for post-conviction relief. Defendant and his attorney were entitled to rely on the existence of such a presumption in preparing their papers, and thus we consider it of no moment that the papers did not contain a specific request for oral argument.

[Id. at 15-16.]

Here, not having had the benefit of the Parker decision, the court decided defendant's first PCR petition on the papers and provided no explanation as to why oral argument was not conducted. In view of Parker, we remand to the trial court for oral argument. We take no position on the merits of defendant's petition.

Remanded. We do not retain jurisdiction.