STATE OF NEW JERSEY v. JUAN M DELORBE

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3680-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JUAN M. DELORBE,

     Defendant-Appellant.
_______________________________________

              Submitted June 8, 2017 – Decided June 23, 2017

              Before Judges Lihotz and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              13-03-0690.

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

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Kerry J. Salkin,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Juan Delorbe appeals from an order denying his

petition for post-conviction relief (PCR) without an evidentiary

hearing.      Pursuant to the Court's holding in State v. Parker,

212 N.J. 269 (2012), we remand this matter with the direction

the PCR court permit the parties to engage in oral argument.

    In 2013, defendant pled guilty to second-degree

distribution of cocaine, 
N.J.S.A. 2C:35-5(a)(1) and (b)(2).         He

was sentenced to a five-year term of imprisonment.       In 2015,

defendant filed a PCR petition and brief, followed by counsel

filing a supplemental brief.    Defendant's principal arguments

were plea counsel failed to advise him of the deportation

consequences of pleading guilty, investigate the case, and

utilize an interpreter to communicate with him.    Defendant also

argued counsel's ineffectiveness improperly induced him to plead

guilty and, thus, he should be permitted to withdraw his plea.

    On February 12, 2016, the PCR court denied defendant's

petition.    Although defendant requested oral argument, the court

decided the matter on the papers.    In its written opinion, the

court did not explain why it denied defendant's request for oral

argument.

    On appeal, defendant raises the following points for our

consideration:

            POINT I – THIS MATTER MUST BE REMANDED FOR
            ORAL ARGUMENT.

            POINT II – IN THE ALTERNATIVE, MR. DELORBE
            IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS
            CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE

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            ASSISTANCE OF COUNSEL AND THAT HE SHOULD BE
            ALLOWED TO WITHDRAW HIS PLEA.

    Under the circumstances, we need only address the first

argument.    Defendant argues the PCR court erred when it rejected

his petition without affording his attorney the right to present

oral argument.     We agree.   In Parker, the Court held:

            [W]hen the trial judge . . . reach[es] 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.

            [Parker, supra, 
212 N.J. at 282-83.]

    The Court has consistently enforced its holding in Parker

whenever a PCR court has failed to provide its "reasons for not

providing oral argument on [an] initial petition for post-

conviction relief."    State v. Daniels, 
225 N.J. 338 (2016); see

also State v. Scott, 
225 N.J. 337 (2016); State v. Mitchell, 
217 N.J. 300 (2014).    Further, recent remand orders issued by the

Court, signal a strong preference for allowing oral argument of

PCR applications.



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    Accordingly, pursuant to the Court's holding in Parker, we

vacate the February 12, 2016 order denying defendant PCR, and

remand this matter for the purpose of permitting the parties to

present oral argument to the PCR court.   We do not retain

jurisdiction.

    Remanded for further proceedings consistent with this

opinion.




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