On appeal from the Superior Court, Law Division, Union County.
Pressler, R.s. Cohen and Kestin. The opinion of the court was delivered by Kestin, J.A.D.
[260 NJSuper Page 560] Defendant's petition for post-conviction relief was denied after a hearing in which he was unrepresented by counsel. The
Public Defender had assigned a designated attorney to represent the defendant, but counsel's only communication with the court was to secure a three-week adjournment of the hearing. No papers were filed with the court by counsel on defendant's behalf; counsel did not communicate with defendant about the case; and counsel did not appear at the hearing. When the trial court conducted a proceeding pursuant to our remand to determine what had occurred, counsel represented that when the post-conviction relief matter was assigned to him, he
reviewed the documents involved. Quite honestly, I felt the issues were not meritorious, there was nothing I could add, and I simply -- whether I said anything to the Court at that time or not, I don't know. But I was satisfied the matter could be resolved on the papers without my adding anything to it.
It appears that when the matter came before the trial court, no papers had been submitted by the State in opposition to defendant's petition, either. The record reflects that the only persons present for this matter were the Judge and an assistant prosecutor who advanced no oral argument. According to the Judge, the denial of defendant's petition was the result of the Judge's analysis of its merits from the supporting papers filed by defendant.
We hold that it was error for the trial court to dispose of defendant's post-conviction relief application without defense counsel's presence and, at least, a representation that counsel had conferred with defendant and had investigated the merits of the petition. The trial court should have made an inquiry into the reasons for counsel's absence and, if necessary, should have rescheduled the hearing on a short date.
There are at least three good reasons why a trial court should not proceed to decision under these circumstances without an adequate basis for making a finding that a defendant has actually received the benefit of assigned counsel's attention to the case. An on-the-record representation by counsel to that effect is adequate in the absence of a work product that signifies the attorney's involvement.
The first reason for not proceeding in the absence of defense counsel's involvement is because the rule says not to do so. R. 3:22-6(a) clearly contemplates an attorney's involvement in a first petition for post-conviction relief. In the absence of an affirmatively expressed intention by the defendant to proceed pro se (or with retained counsel), the rule requires that the court
refer the matter to the Office of the Public Defender if the defendant's conviction was for an indictable offense, or assign counsel . . . if the defendant's conviction was for a nonindictable offense.
This is not a rule which is satisfied by pro forma compliance alone, as the State argues. The other reasons for not proceeding in the absence of ...