                                NOT FOR PUBLICATION WITHOUT THE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-2449-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JONATHAN G. CAVALUCCI,

     Defendant-Appellant.
__________________________

                    Submitted April 30, 2019 – Decided May 10, 2019

                    Before Judges Rothstadt and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 07-08-0877.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Anderson David Harkov, Designated
                    Counsel, on the brief).

                    Angelo J. Onofri, Mercer County Prosecutor, attorney
                    for respondent (Amanda E. Nini, Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Jonathan Cavalucci appeals from a December 8, 2017 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing.   On appeal, defendant contends that his PCR counsel rendered

ineffective assistance. He also maintains the PCR court committed error in

denying his petition on procedural grounds, and seeks a remand for the court to

consider his petition on the merits. After reviewing the record in light of the

applicable legal principles, we vacate the denial of PCR and remand for the court

to conduct oral argument on defendant's petition.

      On January 8, 2010, defendant plead guilty to one count second-degree

possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a).              In

exchange for his guilty plea, the State recommended a five and one-half year

period of incarceration with a three-year period of parole ineligibility, consistent

with the Graves Act, N.J.S.A. 2C:43-6(c) (2010), and agreed to a dismissal of

the remaining three counts in the indictment, along with charges in two other

indictments.

      On April 23, 2010, defendant appeared for sentencing. At sentencing,

defendant also plead guilty to an unrelated simple assault charge. With respect

to that offense, the prosecutor agreed to a six-month sentence, concurrent to the

five and one-half year sentence on the possession of a firearm for an unlawful


                                                                            A-2449-17T1
                                         2
purpose charge. The trial court sentenced defendant in accordance with the plea

agreements. Defendant did not file a direct appeal of his convictions.

      On May 9, 2016, approximately six years after his April 23, 2010

conviction, defendant filed a pro se PCR petition. In his handwritten petition,

defendant requested the appointment of counsel and alleged his plea counsel was

ineffective based on his failure to explain his PCR rights. Defendant also

maintained he was not guilty of the charges because he was acting in the defense

of others, and did not have an unlawful purpose when he discharged the gun.

Over a year later, on May 30, 2017, the court appointed PCR counsel.

      On September 25, 2017, the court held a conference with the prosecutor

and PCR counsel. According to the parties, the court requested the submission

of briefs addressing the "timeliness" of the PCR petition "so that the court might

address that issue prior to any substantive issues."

      PCR counsel submitted a four-page brief limited to the timeliness issue.

PCR counsel did not submit a supplemental certification of defendant, or any

other sworn statements. Instead, PCR counsel stated in his brief that he was

advised by defendant that while defendant was preparing a PCR petition for a

separate conviction "he came to understand and appreciate the five-year

timeframe . . . and filed the present matter as quickly as practicable." PCR


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                                        3
counsel also stated defendant's plea counsel "ineffectively advised [defendant]

as to numerous issues surrounding the underlying matter" and that "enforcement

of the time bar in these circumstances would be tantamount to a fundamental

injustice." The brief failed to list, or discuss, however, the "numerous issues,"

or how enforcement of the five-year bar would result in a "fundamental

injustice."

      The PCR court denied defendant's petition in a December 8, 2017 order,

without conducting oral argument or an evidentiary hearing. In its written

decision issued the same day, the PCR court found that the judge who accepted

defendant's plea explained to defendant his PCR rights and the time limitations

to file a petition under Rule 3:22-12(a)(1).         The court concluded that

"defendant's failure to timely file his petition for post-conviction relief was not

a product of excusable neglect," and was therefore time-barred. This appeal

followed.

      On appeal before us, defendant argues:

              POINT I

              DEFENDANT'S      PETITION   FOR    POST-
              CONVICTION RELIEF SHOULD BE REMANDED
              WITH INSTRUCTIONS TO THE TRIAL COURT TO
              ORDER THE OFFICE OF THE PUBLIC DEFENDER
              TO APPOINT NEW PCR COUNSEL WHO WILL
              FULFILL HIS OR HER OBLIGATION TO PROVIDE

                                                                           A-2449-17T1
                                        4
            DEFENDANT      WITH   THE                    EFFECTIVE
            ASSISTANCE OF PCR COUNSEL.

            POINT II

            THE TIME BAR OF [RULE] 3:22-12 SHOULD NOT
            BE APPLIED TO DEFENDANT'S PETITION FOR
            POST-CONVICTION      RELIEF       BECAUSE
            DEFENDANT DID NOT BECOME AWARE HE HAD
            NOT WAIVED HIS RIGHT TO FILE HIS PCR UNTIL
            HE    WAS     ARRESTED      IN    ANOTHER
            JURISDICTION.

      With respect to his first point, defendant relies on State v. Parker, 212 N.J.

269 (2012), and asserts that among the errors committed by PCR counsel, was

his failure to "insist that the PCR court hear oral argument on the time bar issue

in the presence of defendant."      In support of his second point, defendant

contends that because the PCR court "failed to hear oral argument on the time

bar issue, and refused to allow either defendant or PCR counsel an opportunity

to present the merits" of the petition, "the PCR court did not have a record to

support its ruling that defendant failed to establish excusable neglect" for

purposes of relaxing the time bar. We conclude it was error for the PCR court

to decide defendant's PCR petition without oral argument, and without

explaining the basis for its decision to dispense with oral argument.

      In Parker, the Supreme Court held there is a "significant presumption in

favor of oral argument" on a first PCR petition. Ibid. (quoting State v. Mayron,

                                                                            A-2449-17T1
                                         5
344 N.J. Super. 382, 387 (App. Div. 2001)). The Court added that the PCR

judge retains a "residuum of discretion" in deciding whether oral argument

should be held, but the judge must approach the issues raised with a view in

favor of hearing oral argument. Ibid. Significantly, "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 considers oral

argument unnecessary." Ibid.

      Here, the PCR judge did not hold oral argument, and his December 8,

2017 written decision did not address the reasons the court may have concluded

it was unnecessary. Based on the issues raised on appeal, we remand for the

trial court to permit oral argument and to reconsider denial of defendant's PCR

petition.   In view of our decision, we need not address the merits of the

arguments raised in Points One and Two of defendant's brief.

      The order denying PCR is vacated and the matter is remanded to the Law

Division for further proceedings in conformity with this opinion. We do not

retain jurisdiction.




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