STATE OF NEW JERSEY v. DEMPSEY COLLINS

NOT FOR PUBLICATION WITHOUT THE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-4046-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DEMPSEY COLLINS,

     Defendant-Appellant.
_________________________

                    Submitted September 16, 2019 - Decided November 22, 2019

                    Before Judges Vernoia and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 14-04-0601.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michele A. Adubato, Designated Counsel,
                    on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Evgeniya Sitnikova, Deputy Attorney
                    General, of counsel and on the brief).

PER CURIAM
      Defendant Dempsey Collins appeals from an order denying his petition

for post-conviction relief (PCR) without an evidentiary hearing and oral

argument. The trial court cancelled the oral argument and deemed it to be

waived when defense counsel failed to appear. For the reasons that follow, we

hold it is necessary to vacate the court's order and remand for the PCR court to

hear oral argument and decide the petition anew.

      In 2011, a State grand jury returned a forty-two count indictment charging

defendant and twelve co-defendants with first-, second-, and third-degree drug-

related crimes. In 2013, defendant pled guilty pursuant to a plea agreement to

the first-degree crime of Leader of Narcotics Trafficking Network.  N.J.S.A.

2C:35-3. In January 2014, the sentencing court imposed an aggregate twenty-

year term of imprisonment with a twelve-and-one-half-year period of parole

ineligibility. Later that year, a Hudson County grand jury returned a twenty-one

count indictment charging defendant and two others with additional drug

distribution and money laundering offenses. In 2015, defendant pled guilty to a

third-degree drug crime charged in the Hudson County indictment.               In

accordance with the plea agreement, the second sentencing court imposed a

four-year prison term to be served concurrently with defendant's sentence on his

Leader of Narcotics Trafficking Network conviction.


                                                                        A-4046-17T1
                                       2
      In 2016, defendant filed a pro se petition for PCR claiming errors with

respect to sentencing and the award of jail credits. Following the appointment

of PCR counsel, the petition was amended to include claims that defendant’s

trial counsel rendered ineffective assistance by failing to share discovery with

defendant and by not conducting a proper investigation before advising

defendant to plead guilty.

      The PCR court had scheduled oral argument on defendant’s PCR petition

for December 7, 2017. Defendant’s PCR counsel, however, did not appear for

the proceeding despite repeated calls to his office throughout the day. The PCR

judge went on the record and held that counsel’s failure to appear would be

deemed to be a waiver of oral argument. The judge announced that the matter

would be decided on the papers and that the court’s decision would be sent out

to the attorneys the next day.

      The transcript of the proceeding does not indicate that anyone from the

judge’s chambers had been able to speak to the absent attorney. As a result,

there is no indication in the record before us that defense counsel explicitly

waived oral argument. The judge did not address defendant or inquire whether

defendant was waiving oral argument or wanted instead to have it rescheduled.




                                                                        A-4046-17T1
                                        3 On December 8, 2017, the PCR judge issued a seven-page written opinion

denying PCR without an evidentiary hearing. This appeal followed.

      On this appeal, defendant contends that:

            THE POST-CONVICTION RELIEF COURT ERRED
            IN DENYING THE DEFENDANT'S PETITION FOR
            POST-CONVICTION      RELIEF      WTHOUT
            AFFORDING HIM ORAL ARGUMENT AND AN
            EVIDENTIARY HEARING TO FULLY ADDRESS
            HIS CONTENTION THAT HE FAILED TO RECEIVE
            ADEQUATE LEGAL REPRESENTATION FROM
            PLEA COUNSEL.

      We appreciate that the PCR judge was justifiably frustrated by appointed

counsel’s failure to appear and his failure to respond to repeated telephone calls

to his office. The record before us does not reveal why counsel did not attend

the hearing, nor does it reveal why he did not at least extend the professional

courtesy of notifying the court that he would not be able to attend. If counsel’s

failure to appear was unexcused, the trial court was free to impose an appropriate

sanction upon the attorney. However, we do not view counsel’s unexplained

failure to appear to constitute a valid waiver of oral argument. It is more apt to

characterize the PCR judge’s decision as holding that defendant forfeited, not

impliedly waived, the opportunity to have oral argument by reason of his

counsel’s unexplained absence. In any event, we do not agree that denying



                                                                          A-4046-17T1
                                        4
defendant the benefit of oral argument was an appropriate sanction in these

circumstances.

      The PCR court’s decision to deny defendant's petition without oral

argument conflicts with the underlying principles and procedural standards set

forth in State v. Parker.  212 N.J. 269 (2012). In that case, the Court held that

when exercising their discretion whether to entertain oral argument on PCR

petitions, PCR courts should view the circumstances through a "generous lens,"

recognizing that there is a "strong presumption in favor of oral argument in

connection with an initial petition for post-conviction relief." Id. at 282-83. The

Court further instructed that "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 considered oral argument unnecessary." Id.

at 283.

      In this instance, the PCR judge did not find that oral argument was

unnecessary within the meaning of Parker. To the contrary, by scheduling the

oral argument on the court’s calendar, the PCR judge had already determined, if

only implicitly, that oral argument would serve a useful function.




                                                                           A-4046-17T1
                                        5
      It bears noting, moreover, that the State’s brief on appeal does not address

the oral argument issue, even though it was clearly raised by defendant in his

appellant brief. Although we are reluctant to add further delay to the substantive

resolution of defendant’s PCR petition, we also are reticent in these

circumstances to review the PCR court’s written opinion on the merits. It would

conflict with the underlying rationale of Parker were we to assume from our own

reading of the PCR record that nothing said at oral argument could possibly have

influenced the PCR judge’s analysis and final decision. Under Parker, it is

incumbent upon the PCR court, not an appellate court in the first instance, to

explain why oral argument could not have influenced the PCR court’s ultimate

decision to deny the petition on the merits. See Parker,  212 N.J. at 282-83.

      In the final analysis, Parker stands for the proposition that oral argument

is not a perfunctory ritual to be dispensed with lightly.      We therefore are

constrained to vacate the court's order and remand to provide defendant and the

State an opportunity to present oral argument and the court with an opportunity

to decide defendant's PCR petition anew with the benefit of oral argument.

      Vacated and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.




                                                                          A-4046-17T1
                                          6