STATE OF NEW JERSEY VS. JUAN M. DELORBE (13-03-0690, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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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