STATE OF NEW JERSEY v. WALDEMAR ALVAREZ

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4218-16T4


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WALDEMAR ALVAREZ,

     Defendant-Appellant.
___________________________

                    Submitted January 8, 2019 – Decided January 23, 2019

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Cumberland County, Indictment No. 09-08-
                    0688.

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

                    Jennifer Webb-McRae, Cumberland County Prosecutor,
                    attorney for respondent (Stephen C. Sayer, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from an order entered by the Law Division on March

6, 2017, which denied his petition for post-conviction relief (PCR). We reverse.

      On August 26, 2009, a Cumberland County grand jury returned Indictment

No. 09-08-0688 charging defendant with: two counts of second-degree sexual

assault,  N.J.S.A. 2C:14-2(c)(4),  N.J.S.A. 2C:4-2(b) (counts one and two); and

two counts of third-degree endangering the welfare of a child,  N.J.S.A. 2C:24-

4(a) (counts three and four).

      On April 12, 2010, defendant pled guilty to count one, which was

amended to charge fourth-degree sexual contact,  N.J.S.A. 2C:14-3(b), and count

three. In exchange for defendant's plea, the State agreed to recommend an

eighteen-month custodial term.       Defendant would be subject to Parole

Supervision for Life (PSL),  N.J.S.A. 2C:43-6.4, and Megan's Law,  N.J.S.A.

2C:7-1 to -23; required to provide a DNA sample; and appropriate monetary fees

and penalties would be imposed.

      The record shows that defendant completed a plea form, which set forth

the terms of the plea agreement.      Defendant also responded to questions

regarding sexual offenses on a separate form. Among other things, defendant

was asked if he understood he may be required to register under Megan's Law,

and that upon his release from incarceration, he could be subject to notification


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to law enforcement authorities and the community at large. Defendant was

asked if he understood that if sentenced to PSL, he would be subject to parole

supervision for at least fifteen years after he completed serving his sentence. He

also was asked if he understood that the conditions of PSL could include

counseling and "restrictions on where [he could] live, work, travel[,] or [the]

persons" he could contact. Defendant circled "Yes" after these questions.

      At the plea hearing, the judge also questioned defendant about PSL. In

response to these questions, defendant stated that he understood he would be

subject to parole supervision for at least fifteen years after he served his prison

sentence. He also stated that he understood the conditions of PSL could include

"counseling and . . . restrictions on where [he could] live, work, travel or the

persons [he could] contact."

      Defendant then provided a factual basis for his plea. He stated that on

March 10, 2009, he touched the breasts of a fourteen or fifteen-year-old girl

identified as C.R. In addition, defendant stated that on April 6, 2009, he touched

the breasts of a thirteen-year-old girl identified as P.R., in a manner "that would

debauch her morals." The judge accepted defendant's plea.

       On September 10, 2010, another Law Division judge sentenced

defendant. The judge found aggravating factors three,  N.J.S.A. 2C:44-1(a)(3)


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(risk that defendant will commit another offense); and nine,  N.J.S.A. 2C:44- -

1(a)(9) (need to deter defendant and others from violating the law). The judge

also found mitigating factor twelve,  N.J.S.A. 2C:44-1(b)(12) (defendant's

willingness to cooperate with law enforcement authorities), but the judge gave

that factor "slight weight."

      The judge sentenced defendant in accordance with the plea agreement,

and imposed the sentence the State recommended. The judge also awarded

defendant 442 days of jail credits. The judge filed a judgment of conviction

dated September 23, 2010.

      On December 17, 2015, defendant filed a pro se PCR petition in the Law

Division.   The court assigned PCR counsel for defendant, and thereafter

defendant's attorney filed an amended PCR petition in which defendant claimed

"his plea . . . was not knowing and voluntary and resulted from ineffective

assistance of counsel."

      Among other things, defendant alleged his trial attorney failed to explain

fully the conditions of Megan's Law and PSL, including the impact such

conditions would have on his ability to reside with and maintain relationships

with his children. Defendant also claimed his trial attorney failed to investigate

potential defense witnesses.


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      Defendant acknowledged that he filed his petition more than five years

after the date his JOC was entered, but he asserted this "was the result of

excusable neglect and his continuing failure to understand the significance of

pleading to an agreement that involved 'Megan's Law' and [PSL] obligations."

He stated that the court should permit him to withdraw his plea, or in the

alternative, strike the provisions of the sentence requiring him to comply with

Megan's Law and imposing PSL. Defendant requested an evidentiary hearing

on his petition.

      In support of the petition, defendant's PCR counsel submitted a letter brief

and a certification of Jeffrey Wilcher, defendant's godfather. In his certification,

Wilcher stated he was with defendant in a hotel in Bridgeton from April 12,

2009, to April 18, 2009, when defendant "left by bus to visit his mother in

Florida." Wilcher said he asked defendant to have his attorney contact him, so

he could testify at trial. Wilcher stated that neither defendant's attorney nor an

investigator contacted him.

      On September 30, 2016, defendant's PCR counsel and the assistant

prosecutor appeared before the PCR court.         Defendant was present.       PCR

counsel asked the judge to postpone any disposition of the petition until after

defendant's release, because defendant wanted to locate a potential witness and


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interview her. PCR counsel suggested that the judge adjourn the matter until a

date in January 2017.

      The judge stated that he would adjourn the hearing to January 27, 2017.

PCR counsel asked if there would be oral argument. The judge indicated that

there would be oral argument, and stated that at that time, "we're going to know

what's going on[.]"

      The judge did not, however, hear oral argument on January 27, 2017.

Moreover, there is nothing in the record before us indicating that defendant or

his attorney waived oral argument.

      The PCR judge filed a written opinion dated March 6, 2017. The judge

found the petition was barred by Rule 3:22-12(a)(1) because it was filed more

than five years after the date the JOC was entered.      The judge noted that

defendant had not shown that his failure to file a timely petition was due to

excusable neglect, or that "enforcement of the time bar would result in a

fundamental injustice."

      The judge nevertheless considered the merits of defendant's claims, and

found that defendant had failed to establish a prima facie case of ineffective

assistance of counsel. The judge determined that when he entered his plea,

defendant was fully informed of the conditions and consequences of Megan's


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Law and PSL, and the record did not support defendant's claim that his trial

attorney failed to investigate potential defense witnesses.

      The judge stated that Wilcher's assertion that he was with defendant from

April 12 to 18, 2009, did not provide an alibi for the subsequent offenses that

were committed on March 10, 2009, and April 6, 2009. In addition, the judge

noted that defendant had not provided a certification or affidavit from the other

witness, who allegedly could have testified that the allegations of one of the

victims were false.

      The judge also considered defendant's application for permission to

withdraw his plea or strike the provisions of the sentence requiring compliance

with Megan's Law and declaring that he is subject to PSL. The judge reviewed

the factors under State v. Slater,  198 N.J. 145, 157-58 (2009). The judge found:

(1) defendant did not assert a colorable claim of innocence, (2) defendant's

reasons for withdrawing his plea are not valid, (3) the sentence is the result of a

negotiated plea, and (4) the State would be unduly prejudiced if required to

proceed with a case in which the charges were then almost eight-years old.

      The judge entered an order dated March 6, 2017, denying PCR. This

appeal followed. On appeal, defendant argues:




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            POINT ONE
            THIS MATTER MUST BE REMANDED FOR ORAL
            ARGUMENT.

            POINT TWO
            IN THE ALTERNATIVE, [DEFENDANT] IS
            ENTITLED TO AN EVIDENTIARY HEARING ON
            HIS CLAIM THAT HIS ATTORNEY RENDERED
            INEFFECTIVE ASSISTANCE OF COUNSEL BY
            FAILING TO INFORM HIM ADEQUATELY OF THE
            REQUIREMENTS AND CONSEQUENCES OF [PSL]
            AND MEGAN'S LAW, AND FAILING TO
            CONDUCT         ADEQUATE      PRETRIAL
            INVESTIGATION.

            POINT THREE
            IN THE ALTERNATIVE, [DEFENDANT]'S GUILTY
            PLEA VIOLATED HIS RIGHT TO DUE PROCESS
            AND MUST BE SET ASIDE AS NOT KNOWING OR
            VOLUNTARY BECAUSE HE WAS MISINFORMED
            AS TO ITS PENAL CONSQEUNCES.

            POINT FOUR
            THE PCR COURT ERRONEOUSLY RULED THAT
            [DEFENDANT]'S PETITION WAS TIME BARRED
            BECAUSE ANY DELAY IN FILING THE PETITION
            WAS DUE TO DEFENDANT'S EXCUSABLE
            NEGLECT AND THERE IS A REASONABLE
            PROBABILITY THAT IF THE DEFENDANT'S
            FACTUAL ASSERTIONS WERE FOUND TO BE
            TRUE, ENFORCEMENT OF THE TIME BAR
            WOULD RESULT IN A FUNDAMENTAL
            INJUSTICE.

      As noted, in Point One, defendant argues that the PCR court erred by

failing to conduct oral argument on his petition.


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      "There is no court rule that specifically permits oral argument on a petition

for [PCR]." State v. Mayron,  344 N.J. Super. 382, 385 (App. Div. 2001).

However, "there is a strong presumption in favor of oral argument in connection

with an initial petition for [PCR]." State v. Parker,  212 N.J. 269, 283 (2012).

In determining whether to grant oral argument, the court should consider several

factors, including "the apparent merits and complexity of the issues . . . , whether

argument of counsel [would] add to the written positions . . . , and in general,

whether the goals and purposes of the [PCR] procedure are furthered by oral

argument." Id. at 282 (alterations in original) (quoting Mayron,  344 N.J. Super.

at 384).

      The decision on whether to entertain oral argument on a PCR petition is

committed to "the sound discretion of the [PCR] court." Mayron,  344 N.J.

Super. at 387. When the PCR court determines oral argument is not needed,

"the [court] should provide a statement of reasons that is tailored to the particular

application, stating why the [court] considers oral argument unnecessary."

Parker,  212 N.J. at 282.

      Here, the record does not show why the PCR court did not conduct oral

argument on defendant's petition. As stated previously, on September 30, 2016,

PCR counsel and the assistant prosecutor appeared in court, and the judge


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granted defendant's request to postpone the proceeding until January 27, 2017.

PCR counsel asked the judge whether there would be oral argument on the

petition, and the judge replied affirmatively, indicating he would hear oral

argument.    The judge directed PCR counsel to advise him if a further

adjournment was needed.

      On appeal, the State asserts that sometime after that proceeding,

"defendant's counsel instructed the court off-the-record and without certification

that no further argument would be necessary." There is, however, nothing in the

record before us to support the State's assertion that defendant or his attorney

waived oral argument. Moreover, in his opinion the judge did not state that

defendant had waived oral argument, and the judge did not explain why oral

argument was not needed.

      Therefore, we are constrained to conclude the PCR court mistakenly

exercised its discretion by failing to entertain oral argument on defendant's

petition. Accordingly, we reverse the order of March 6, 2017, denying PCR,

and remand the matter to the PCR court for oral argument and reconsideration

of defendant's claims.    In view of our decision, we need not address the

arguments raised in Points Two, Three, and Four of defendant's brief.




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      Reversed and remanded to the Law Division for further proceedings in

conformity with this opinion. We do not retain jurisdiction.




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