                        NOT FOR PUBLICATION WITHOUT THE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-3566-14T2
STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

WILLIAM DYKEMAN,

          Defendant-Appellant.
_________________________________

              Argued March 13, 2017 – Decided March 23, 2017

              Before Judges Nugent, Haas and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 03-
              05-0435.

              Steven M. Gilson, Designated Counsel, argued
              the cause for appellant (Joseph E. Krakora,
              Public Defender, attorney; Mr. Gilson, on the
              brief).

              Kimberly L. Donnelly, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Grace H. Park,
              Acting Union County Prosecutor, attorney;
              Bryan S. Tiscia, Special Deputy Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
      Defendant William Dykeman appeals from the August 25, 2014

Law Division order denying his petition for post-conviction relief

("PCR") without oral argument or an evidentiary hearing.                            We

reverse and remand for oral argument and further consideration of

the merits of defendant's position.

      The facts developed at defendant's trial are set forth at

length     in   our    decision     on   defendant's    direct      appeal   of   his

conviction and sentence.            State v. Dykeman ("Dykeman I"), No. A-

0445-05 (App. Div. Mar. 4, 2009), certif. denied, 199 N.J. 542

(2009).     Therefore, only a brief summary is necessary here.

      In    a   seventeen-count          indictment,   a    grand     jury   charged

defendant with committing various offenses against four separate

women.     Id. at 1.     Following a jury trial, defendant was convicted

of three counts of second-degree sexual assault by committing an

act   of   sexual      penetration       using   physical   force     or   coercion,

N.J.S.A. 2C:14-2(c)(1) (counts one, eight, and fifteen); three

counts of third-degree criminal restraint, N.J.S.A. 2C:13-2(a)

(counts     two,      five,   and   twelve);     two   counts    of   third-degree

terroristic threats, N.J.S.A. 2C:12-3(b) (counts four and nine);

and two counts of fourth-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(d) (counts eleven and seventeen).                     Id. at 1-2.

The jury found defendant not guilty of the remaining charges.                     Id.

at 2.

                                            2                                A-3566-14T2
      The trial judge sentenced defendant to a nine-year prison

term, subject to the 85% parole ineligibility provisions of the

No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on counts one,

eight, and fifteen to be served consecutively to each other; a

consecutive four-year term on count two, and concurrent terms on

the remaining counts.     Id. at 2.          Accordingly, defendant received

an aggregate sentence of thirty-one years, subject to twenty-seven

years of parole ineligibility under NERA.              Ibid.

      Defendant appealed his conviction and sentence.                  Ibid.      We

affirmed    defendant's   conviction,         but   remanded    the   matter     for

resentencing under State v. Natale, 184 N.J. 458 (2005).                      Id. at

14.

      On remand, the trial judge reimposed the original sentence.

Defendant    filed   another     direct      appeal,   and     we   affirmed     the

sentence.     State v. Dykeman ("Dykeman II"), No. A-6044-08 (App.

Div. Feb. 7, 2012), certif. denied, 212 N.J. 462 (2012).

      In August 2009, defendant filed a petition for PCR.                     In the

brief prepared on defendant's behalf by his PCR counsel, and in

his own pro se submissions, defendant presented approximately

twenty-four points for the trial court's review.                      Among other

things, defendant argued that: (1) the trial judge made incorrect

evidentiary    rulings;    (2)     the       indictment      should    have     been

dismissed; (3) various counts of the indictment should have been

                                         3                                A-3566-14T2
severed for purposes of trial; (4) the prosecutor engaged in

misconduct; and (5) he needed additional discovery to present more

PCR challenges.

     Defendant    also   asserted   that    his   trial   attorney   was

ineffective because he did not:         (1) file various motions that

defendant believed should have been filed; (2) include certain

arguments in his summation; and (3) arrange for replacement counsel

for defendant because their relationship "had deteriorated to the

point where effective representation was impossible."         Defendant

requested oral argument in connection with the trial court's

consideration of his petition for PCR.

     The trial judge denied defendant's petition in a written

decision without conducting oral argument.        The judge found that

many of defendant's arguments had been raised and rejected on

direct appeal, or could have been raised during those proceedings.

Thus, the judge ruled that these claims were procedurally barred

by Rule 3:22-4(a) and Rule 3:22-5.

     With regard to defendant's claims of ineffective assistance

by his trial and appellate attorneys, the judge concluded that

defendant failed to satisfy the two-prong test of Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.

2d 674, 693 (1984), which requires a showing that counsel's



                                    4                           A-3566-14T2
performance   was   deficient   and   that,   but   for   the   deficient

performance, the result would have been different.1

     Citing State v. Parker, 212 N.J. 269, 282-83 (2012), the

trial judge acknowledged that oral argument on a petition for PCR

should ordinarily be granted.     However, the judge stated at the

conclusion of his written decision that "oral argument would not

have been helpful because defendant fail[ed] to establish a prima

facie case in favor of relief."       This appeal followed.

     On appeal, defendant raises the following contentions in the

brief submitted by his attorney:

           POINT I

          DEFENDANT'S CONVICTIONS MUST BE REVERSED
          BECAUSE APPELLATE AND PCR COUNSEL WERE
          INEFFECTIVE FOR FAILING TO PURSUE DEFENDANT'S
          BEING DEPRIVED OF HIS RIGHT TO SECURE HIS
          CHOICE OF COUNSEL; IN THE ALTERNATIVE, THIS
          MATTER MUST BE REMANDED BECAUSE DEFENDANT
          ESTABLISHED A PRIMA FACIE CASE OF COUNSELS'
          INEFFECTIVENESS. (NOT RAISED BELOW).

          POINT II

          THIS   MATTER   MUST   BE  REMANDED  FOR   AN
          EVIDENTIARY    HEARING    BECAUSE   DEFENDANT
          ESTABLISHED A PRIMA FACIE CASE OF TRIAL
          COUNSEL'S INEFFECTIVENESS FOR FAILING TO HAVE
          KEY WITNESSES TESTIFY.


1
   The trial judge noted that defendant had also submitted
"voluminous briefs and exhibits which either raise[d] meritless,
frivolous legal arguments, or [did] not articulate any discernable
argument[.]" Therefore, the judge found that these matters did
"not merit any further discussion."

                                  5                               A-3566-14T2
         POINT III

         DEFENDANT'S CONVICTIONS MUST BE REVERSED
         BECAUSE TRIAL, APPELLATE, AND PCR COUNSEL WERE
         INEFFECTIVE   FOR   FAILING   TO   PURSUE  THE
         PROSECUTOR'S     UNDULY     PREJUDICIAL    AND
         CUMULATIVE COMMENTS, WHICH EMPLOYED EPITHETS
         TO DEMEAN DEFENDANT, BOLSTERED THE CREDIBILITY
         OF THE ALLEGED VICTIMS, AND INJECTED HIS
         PERSONAL BELIEF REGARDING DEFENDANT'S GUILT;
         IN THE ALTERNATIVE, THIS MATTER MUST BE
         REMANDED FOR AN EVIDENTIARY HEARING BECAUSE
         DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF
         COUNSELS' INEFFECTIVENESS. (PARTIALLY RAISED
         BELOW).

         POINT IV

         THIS   MATTER    MUST   BE  REMANDED   FOR   AN
         EVIDENTIARY     HEARING    BECAUSE    DEFENDANT
         ESTABLISHED A PRIMA FACIE CASE OF TRIAL
         COUNSEL'S       INEFFECTIVENESS       REGARDING
         INADEQUATE    INVESTIGATION    AND   INADEQUATE
         CONSULTATION.

         POINT V

         THIS MATTER MUST BE REMANDED BECAUSE DEFENDANT
         WAS NOT AFFORDED LEGAL ARGUMENT. (NOT RAISED
         BELOW).

    Defendant raises the following arguments in a supplemental

pro se submission:

         POINT I

         THE   TRIAL    COURT   ERRONEOUSLY    DEPRIVED
         [DEFENDANT] OF THE SIXTH AMENDMENT RIGHT TO
         COUNSEL OF CHOICE, NOT SUBJECT TO HARMLESS-
         ERROR ANALYSIS, AND IS SO CLEARLY IN VIOLATION
         OF THE CONTROLLING LAW SO AS TO BE PROPERLY
         TREATED AS A SUMMARY DISPOSITION MATTER UNDER
         U.S. V. GONZALEZ-LOPEZ AS WELL AS WELL SETTLED


                               6                           A-3566-14T2
          THIRD CIRCUIT AND U.S. SUPREME COURT CASE LAW
          DIRECTLY ON POINT.

          (A)(1)    HISTORICAL RELEVANT FACTS.

          (A)(2)    HISTORY – WERE THE PARTIES READY FOR
                    TRIAL?

          (A)(3)    EFFORTS TO SECURE NEW COUNSEL.

          (A)(4)    EFFORTS TO COMMUNICATE     WITH   [THE
                    TRIAL JUDGE].

          (A)(5)    LEGAL ARGUMENT AND ANALYSIS BASED ON
                    THE FAILURE TO CONDUCT ANY BALANCING
                    TEST OR TO ASCERTAIN WHAT WAS REALLY
                    GOING ON WITH DEFENSE COUNSEL . . .
                    IN 2003 AND 2004.

     Because we agree with defendant's contention in Point V of

his attorney's brief that the trial judge should have conducted

oral argument before deciding defendant's petition for PCR, we are

constrained to reverse the judge's decision.

     We initially note that although "[t]here is no court rule

that specifically permits oral argument on a petition for [PCR],"

State v. Mayron, 344 N.J. Super. 382, 385-87 (App. Div. 2001),

there is a presumption in favor of oral argument.     Parker, supra,

212 N.J. at 282.    Moreover, a trial judge is vested with the

discretion to disallow it.   Id. at 281 (citing State v. Mayron,

supra, 344 N.J. Super. at 386-87).

     However, if a judge eschews oral argument, he or she must

"provide a statement of reasons that is tailored to the particular


                                7                            A-3566-14T2
application,    stating   why   the   judge   considers   oral   argument

unnecessary."    Id. at 282.    In determining whether to grant oral

argument, the trial judge should consider "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 post-conviction procedure

are furthered by oral argument."          Id. at 282 (alterations in

original) (quoting Mayron, supra, 344 N.J. Super. at 387).

     In his written decision, the trial judge did not consider any

of the Parker factors.      Instead, the judge merely stated that

defendant "fail[ed] to establish a prima facie case in favor of

relief" and, therefore, oral argument was not necessary.              This

terse explanation was insufficient to meet the requirements of

Parker.     Given the apparent complexity of the many issues raised

by defendant and his attorney, we are convinced that the judge

should have conducted oral argument before deciding defendant's

petition.

     Accordingly, we reverse the August 25, 2014 order denying

defendant's petition for PCR and remand to the Law Division for

oral argument on the petition and a new decision on the merits.

     Reversed and remanded.      We do not retain jurisdiction.




                                      8                           A-3566-14T2
