STATE OF NEW JERSEY VS. DEMPSEY COLLINS (14-04-0601, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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
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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.
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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.
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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
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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.
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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.
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