                        NOT FOR PUBLICATION WITHOUT THE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-1276-14T4



STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FRANKLIN D. NICOLOUDAKIS,

     Defendant-Appellant.
______________________________

              Argued May 17, 2017 – Decided June 29, 2017

              Before Judges Accurso and Lisa.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment No.
              07-08-0842.

              Frank D. Nicoloudakis, appellant, argued the
              cause pro se.

              Olivia M. Mills, Assistant Prosecutor, argued
              the cause for respondent (Angelo J. Onofri,
              Mercer County Prosecutor, attorney; Laura
              Sunyak, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Defendant appeals the September 29, 2014 order denying his

motion for reconsideration of the August 14, 2014 order dismissing

his Post-Conviction Relief (PCR) petition without prejudice.     For

the reasons that follow, we reverse.

     Defendant pled guilty to fourth-degree stalking, N.J.S.A.

2C:12-10b, for which he was sentenced on March 31, 2008 to a five-

year term of probation.   Defendant filed a direct appeal, and we

affirmed in an unpublished opinion.    State v. Nicoloudakis, No.

A-0383-08 (App. Div. Aug. 16, 2010).

     On the last day allowed to meet the five-year limitation

period for filing a PCR petition, see Rule 3:22-12(a)(1), defendant

filed his PCR petition on April 1, 2013.1       On July 20, 2013,

defendant filed an amended petition.   He filed both the original

and amended petitions as a pro se party.

     The criminal case management office sent three letters to

defendant dated August 20, 2013, October 17, 2013, and January 8,

2014.   Defendant does not dispute that he received these letters.

We have not been provided with the letters in the appellate record.

From the information we have, which defendant also does not

dispute, the letters directed him to inform the court whether he

wished to be assigned a public defender, whether he obtained


1
    The five-year anniversary, March 31, 2013, fell on a Sunday,
as a result of which his filing the next day was timely.

                                 2                          A-1276-14T4
private counsel, or whether he would proceed pro se.        There is no

indication in the record before us that the letters informed

defendant of any particular consequence that would flow from his

failure to respond.

     Defendant did not respond to any of the letters.       He contends

that his reason for not responding was that he believed "Criminal

Case Management" was an arm of the prosecutor's office, not of the

court, and he had no obligation to respond to a communication

coming   from    the   prosecutor's   office.    Whether   or    not    that

contention is credible is not dispositive of this appeal.

     On August 14, 2014, the trial court issued a sua sponte order

dismissing      defendant's   petition    "without   prejudice    due     to

Defendant's failure to either submit an affidavit of indigency or

inform the Court as to whether or not he will proceed pro se or

with private counsel."        An accompanying letter by the court set

forth a statement of reasons as follows:

           This Court is in receipt of your post-
           conviction relief application filed on July
           20, 2013. Pursuant to R. 3:22-6(a) ". . . a
           defendant who wants to be represented by the
           Office of the Public Defender may annex
           thereto a sworn statement alleging indigency
           in the form prescribed by the Administrative
           Director of the Courts. . ." As this is your
           first post-conviction relief application, you
           are entitled to assignment of counsel.     In
           letters dated August 20, 2013; October 17,
           2013 and January 8, 2014, you were directed
           to inform the Court as to whether or not you

                                      3                            A-1276-14T4
            wished to be assigned a public defender
            however you still have not submitted an
            affidavit of indigency nor in the alternative,
            any documents stating that you have obtained
            private counsel or will be proceeding pro se.

            Therefore,   this    post-conviction   relief
            application is dismissed without prejudice.

     Defendant    filed    a   timely       motion     for   reconsideration    on

September   3,   2014,    accompanied       by    a   brief.    He   filed   these

documents in his pro se capacity.                He expressed his regrets for

not responding to the letters from criminal case management and

explained his reason, as we have set forth above.                 He also stated

that "the requests for designation of representation never set a

time limit for reply or indicated that without a response, the

entire petition and opportunity for having the issues reviewed

would be summarily dismissed."      He expressed concern that, because

he was now beyond the five-year limitation period, refiling might

not be a viable alternative.

     Defendant contended that the exhibits he attached, which

included the first page of his original and amended petitions,

identified the fact that he was acting pro se.                 He contended that

these designations constituted an unequivocal assertion on his

part that he was proceeding pro se and "[t]here was no legitimate

reason for the office staff [in the criminal case management

office] to ignore those declarations."                  He concluded that the


                                        4                                A-1276-14T4
court "either did not consider, or failed to appreciate the

significance of probative, competent evidence."   He requested that

the court reverse its decision of August 14, 2014, and reinstate

his PCR petition.

       The court issued an order on September 29, 2014, denying

defendant's motion "because there is not a sufficient showing of

plainly incorrect reasoning, a failure to consider evidence or new

information to be considered pursuant to Rule 4:49-2."      In the

judge's accompanying letter stating reasons for denial of the

motion, he stated: "Initially, when a defendant petitions for

Post-Conviction Relief pro se, the defendant subsequently requests

for an attorney, or responds to inquiries stating that they will

continue pro se."     Relying on State v. Figueroa, 186 N.J. 589

(2006), the judge stated that defendant's failure to respond to

the letters did not constitute a clear and unequivocal request to

represent himself.    The judge concluded that because this was

defendant's first PCR petition, he was "free to refile at [his]

earliest convenience and the Court will consider all circumstances

regarding your filing date."

       In Figueroa, a capital murder prosecution, the trial court

denied the defendant's motion for self-representation.      Id. at

592.    He was convicted of non-capital murder and other offenses.

Ibid.   This court reversed, concluding that the defendant had been

                                 5                          A-1276-14T4
denied his right of self-representation.    Ibid.   The Supreme Court

affirmed and reiterated the probing inquiry that must be made of

a defendant requesting the right of self-representation at a trial,

and   particularly,     differentiating   between   complete     self-

representation (for which there is a constitutional right) and

hybrid representation (for which there is no constitutional right

but is discretionary with the court). Id. at 593-97. Only through

such a probing inquiry, can a proper decision be made as to whether

the assertion of the right to self-representation is knowing,

voluntary, and unequivocal.    Ibid.

      The circumstances here were quite different. A PCR petitioner

"who wants to be represented by the Office of the Public Defender

may annex [to his or her petition] a sworn statement alleging

indigency in the form prescribed by the Administrative Director

of the Courts, which form shall be furnished to the defendant by

the criminal division manager's office."    R. 3:22-6(a).   There is

no indication in this record that defendant was ever furnished

with such a form.     He was never directed to come to court for an

in-person inquiry by a judge on the subject.           Defendant has

consistently maintained that he does not want to be represented

by the public defender.    Whatever doubt might have been caused by

his non-response to the letters was clarified in defendant's

reconsideration motion.

                                  6                            A-1276-14T4
       Rule 4:49-2, authorizing reconsideration motions, requires a

showing that the court's decision was based on plainly incorrect

reasoning, the court failed to consider evidence, or there is a

good reason for it to consider new information submitted with the

reconsideration motion.       Cummings v. Bahr, 295 N.J. Super. 374,

384-85 (App. Div. 1996).      The rule is especially significant and

useful where the initial order was issued without having been

litigated or argued, as in this case.             Calcaterra v. Calcaterra,

206 N.J. Super. 398, 403-04 (App. Div. 1986).

       Relying on Palombi v. Palombi, 414 N.J. Super. 274, 288 (App.

Div.   2010),   the   State   argues       that   reconsideration   "is   not

appropriate merely because a litigant is dissatisfied with a

decision of the court or wishes to reargue a motion."               However,

in this case, there was no motion and there was no argument.

Defendant's reconsideration motion was made in response to a sua

sponte order issued without prior notice or opportunity to be

heard in writing or orally.       Defendant's reconsideration motion

was his first opportunity to state his position as to why his PCR

petition should not be dismissed on the sole ground that he did

not advise the court of his wish to proceed pro se.            Having made

his position clearly known in his reconsideration motion, the sole

basis underpinning the dismissal order no longer existed.            Because

of the lack of prior notice of the potential dismissal, there was

                                       7                             A-1276-14T4
indeed good reason for the court to consider the new information

submitted.   In these circumstances, due process requires as much.

Failure to do so constituted an abuse of discretion.

     We   note   that   the   rule   permitting   PCR   dismissal   without

prejudice and allowing refiling within ninety days, even beyond

the five-year limitation period, applies only when the dismissal

is on the basis that the petition is not cognizable under Rule

3:22-2, or fails to contain the necessary contents or verification

required by Rule 3:22-8.         R. 3:22-12(a)(4).      Neither of those

circumstances provided a basis for the dismissal order in this

case.   Defendant's concern that refiling within ninety days of the

dismissal order, but outside the five-year limitation period,

might not be viable was not unjustified.          Rule 3:22-12(a)(4) does

not appear to apply, and the judge's letter to defendant stating

that he was free to refile "at his earliest convenience and the

Court will consider all circumstances regarding your refiling

date" was not an indication of an automatic right to refile.

     One final note.     In his appeal, defendant has contended that

the judge dismissed his petition and denied his reconsideration

motion based on personal animus arising out of some previous

interactions between defendant and the judge in unrelated matters.

The record contains no evidence to support this contention, which

we deem to be unfounded and purely speculative.           This contention

                                      8                             A-1276-14T4
plays no part in our decision.   Further, we have no view as to the

merits of defendant's PCR petition.    Indeed, the record before us

contains nothing more than the first page of his original and

amended petitions, and we are not even aware of the grounds for

relief he asserts.

     The   September   29,   2014     order   denying   defendant's

reconsideration motion is reversed.     The August 14, 2014 order

dismissing defendant's PCR petition is vacated.    The PCR petition

is reinstated.

     Reversed and remanded for further proceedings.      We do not

retain jurisdiction.




                                 9                          A-1276-14T4
