On appeal from Superior Court of New Jersey, Law Division, Union County.
Baime and D'Annunzio. The opinion of the court was delivered by Baime, J.A.D.
Defendant appeals from an order of the Superior Court, Law Division, denying his petition for post-conviction relief. He asserts that (1) the trial court's summary dismissal of his petition without a hearing and without findings of fact and legal conclusions violated applicable court rules, and (2) the trial court erred in its conclusion that his arguments relating to errors in the imposition of sentence are not cognizable in post-conviction relief proceedings.
The essential facts are not in dispute. Following a lengthy jury trial, defendant was found guilty of aggravated manslaughter (N.J.S.A. 2C:11-4 a) and possession of a sawed-off shotgun (N.J.S.A. 2C:39-3 b). On the homicide conviction, the trial court imposed a sentence of 15 years. Pursuant to N.J.S.A. 2C:43-6 c, the court ordered that defendant serve five years without parole eligibility. Defendant received a consecutive four-year sentence on the weapons offense. Under the provisions of N.J.S.A. 2C:43-6 b, the court directed that defendant serve one-half of the sentence before being eligible for parole.
Defendant filed a timely appeal from his conviction, arguing only that the trial court erred in its evidentiary decisions. We affirmed in an unreported opinion and the Supreme Court subsequently denied certification. 105 N.J. 503 (1986).
On April 6, 1987, defendant filed a petition for post-conviction relief. Although he had been represented by attorneys assigned by the Public Defender in all prior proceedings, defendant expressed his desire not to be represented by a lawyer. Noting his dissatisfaction with his former attorneys, defendant stated that he wished to represent himself.
We have carefully reviewed the petition. Although it was inartfully drafted and ambiguously phrased, the principal thrust of the arguments advanced was that the trial court erroneously imposed a parole ineligibility term without weighing the appropriate aggravating and mitigating factors. In addition, defendant contended that the court failed to consider applicable guidelines in directing that the sentences be served consecutively. In a brief letter-opinion, the trial court denied defendant's petition on the ground that a claim of excessive sentence was not cognizable in post-conviction relief proceedings.
We first address defendant's contention that the trial court erred by summarily denying his petition without a hearing and without making the requisite findings of fact and legal conclusions. Initially, we find nothing in R. 3:22-1 et seq. requiring that a hearing be conducted on a post-conviction relief petition. Specifically, our court rules are barren of any provision mandating that oral argument be heard whenever a petition is filed. Instead, R. 3:22-10 states that "[a] defendant in custody may be present in court" in the exercise of the judge's discretion, and is "entitled to be present when oral testimony is adduced on a material issue of fact within his personal knowledge." In the context of the facts present here, we perceive no
abuse of the trial court's discretion in disposing of defendant's petition on the papers submitted. We emphasize that resolution of the issues raised by defendant did not require the taking of oral testimony. While we do not doubt that it was within the power of the court to require oral argument, we discern no statutory or procedural provision compelling it to adopt this course. See R. 3:22-11.
Nor do we find merit in defendant's argument that a reversal is mandated because the court failed to make specific findings of fact. Although, R. 3:22-11 provides that "[i]n making final determination upon a petition, . . . the court shall state separately its findings of fact and conclusions of law," the trial court's failure to comply with the rule was harmless since the issues raised by defendant were purely ...