State v. Parker, A-115 September Term 2010; Supreme Court; opinion by Wefing, P.J.A.D., temporarily assigned; decided October 16, 2012. On certification to the Appellate Division. [Sat below: Judges Axelrad and Harris in the Appellate Division.] DDS No. 14-1-7987 [22 pp.]

The court considers the framework for deciding whether a defendant is entitled to present oral argument in support of an initial petition for postconviction relief, and determines whether defendant was improperly denied oral argument.

Defendant Johnnie Parker was 17 years old when he gave a statement to police officers admitting that he and another juvenile had killed Demetreas Fletcher. Parker claimed he was pressured to commit the crime by a drug dealer known as Polo Mike, and expressed his belief that he would have been killed if he had not complied with Polo Mike’s orders. The other juvenile corroborated Parker’s statement.

The Family Part waived jurisdiction and both young men were indicted for murder and other crimes. Parker entered a negotiated plea of guilty to an amended charge of aggravated manslaughter, and the state agreed to recommend a sentence of 25 years. When Parker appeared before the trial court to plead guilty, his attorney did not mention Parker’s belief that he would be killed if he did not comply with Polo Mike’s directions. At the sentencing hearing, Parker’s attorney made no argument on his behalf. Parker was sentenced in accordance with the state’s recommendations.

Parker filed a timely petition for post-conviction relief. The judge denied the petition, explaining that Parker did not submit any certifications or affidavits setting forth a factual basis for the defense of duress or address how it might have affected the outcome of the case. The judge noted also that a finding of duress could reduce a murder offense to manslaughter, but defendant pleaded guilty to manslaughter as part of his negotiated agreement, leading to the same result. As to Parker’s claim that the trial counsel failed to conduct an adequate investigation, the judge found Parker did not provide evidence that might mitigate criminal culpability or witnesses that the trial attorney failed to interview. The judge rejected Parker’s remaining claims, including that his trial attorney was ineffective because he did not attempt to achieve a more favorable result by offering Parker’s cooperation against Polo Mike in exchange for a lesser sentence.

On appeal, Parker made several arguments to the Appellate Division, including that the trial court erred by deciding the matter without obtaining a waiver of oral argument. The appellate panel affirmed the denial of postconviction relief. With regard to the trial court’s failure to hear oral argument, the panel found no basis to question that discretionary ruling. The Supreme Court granted Parker’s petition for certification to consider his claim that he was entitled to oral argument.

Held: Defendant was entitled to oral argument for his initial postconviction relief petition.

Rule 3:22-6(a) provides that an indigent defendant is entitled to counsel as a matter of right in connection with his initial petition for postconviction relief, but the rule fails to address whether a defendant is entitled to present oral argument. In prior opinions, the Appellate Division held that a trial judge has the discretion to determine whether to grant oral argument. Additionally, in State v. Mayron, the Appellate Division found that there is a significant presumption in favor of oral argument for an initial petition, and set forth several factors for judges to weigh. Those factors included the merit and complexity of the issues, whether argument by counsel would add to the written arguments, and whether the goals and purposes of the postconviction procedure would be furthered by oral argument.

The court agrees with the Appellate Division’s determination in Mayron that there is a strong presumption in favor of oral argument in connection with an initial petition for postconviction relief. The court also agrees with the factors, which should be considered in the light most favorable to the defendant. Further, when the trial judge reaches a determination that oral argument is not warranted, the judge should provide a statement of reasons tailored to the particular application.

The court finds the trial judge did not accord defendant the benefit of the presumption in favor of oral argument. First, in denying defendant’s petition, the judge reasoned that defendant had not included any affidavits or certifications to support his claim that he acted out of fear of Polo Mike. Defendant did, however, attach to his papers sworn statements that were given to the police that set forth in detail the facts underlying his claim of duress.

Also, the trial judge concluded that duress would serve to reduce a murder charge to manslaughter, and defendant had pleaded to manslaughter, thus the outcome was the same. However, defendant pleaded guilty to aggravated manslaughter, a crime of the first degree, not manslaughter, which is a crime of the second degree. There is, of course, a significant difference in the sentencing exposure.

The trial judge also took too narrow a view of defendant’s argument that his attorney had not attempted to negotiate a more favorable plea bargain for him in exchange for defendant’s cooperation in a prosecution of Polo Mike. Although there were no charges pending against Polo Mike, an offer of cooperation need not be restricted to a pending criminal charge; it can extend to helping the police build a case for a future prosecution.

Defendant was entitled to have his attorney press that argument orally. The judgment of the Appellate Division is reversed, and the matter is remanded to the trial court.

Chief Justice Rabner and Justices LaVecchia, Albin, Hoens and Patterson join in Judge Wefing‘s opinion.

For appellant — Lois A. De Julio, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender; De Julio and Stefan Van Jura, Assistant Deputy Public Defender, and Michael C. Kazer, designated counsel, on the briefs). For respondent — Nancy P. Scharff, Assistant Prosecutor (Warren W. Faulk, Camden County Prosecutor).