On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 96-05-0437.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges Graves and Sabatino.
Defendant James D. Pennington appeals from an order dated August 23, 2005, dismissing his petition for post-conviction relief (PCR) "for failure to move the petition." Defendant also appeals from the court's decision on October 18, 2005, denying his request to reinstate his PCR petition. We now reverse and remand to the Law Division for further proceedings.
Defendant and co-defendant Jeffrey Cherry a/k/a Fati Mugabe Sekou were indicted for first-degree armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6(b) (count one), and second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count two). Following a jury trial on five consecutive days between October 27 and October 31, 1997, defendant was found guilty of both counts of the indictment. At sentencing on December 19, 1997, count two was merged into count one, and defendant was sentenced to an extended term of life in prison with twenty-five years parole ineligibility. This sentence was consecutive to a prison term defendant was then serving. We affirmed defendant's convictions on May 7, 2003. State v. Pennington, No. A-6920-99 (App. Div. May 7), certif. denied, 177 N.J. 574 (2003).
Defendant filed his PCR petition on December 2, 2003, and by order dated January 9, 2004, the matter was referred to the Office of the Public Defender. Defendant was not informed a public defender was assigned to represent him until June 6, 2005, and defendant was unaware that his PCR petition was scheduled for a status conference on July 29, 2005. Moreover, assigned counsel was unable to speak with defendant prior to the scheduled status conference on July 29, 2005, due to his involvement in a murder trial and missing documentation from defendant's file.
On July 29, 2005, defendant refused transportation from State Prison to court for a status conference on his PCR petition. Although defendant was represented by counsel at the conference, the court noted defendant's refusal to appear, and it viewed defendant's absence "as his voluntary failure to proceed to prosecute his application for post-conviction relief." Thus, the court dismissed defendant's PCR petition "for his failure to prosecute," and an order memorializing the court's decision was entered on August 23, 2005.
On September 14, 2005, defendant filed a motion for reinstatement of his PCR petition. In an accompanying certification, defendant explained his refusal to appear at the status conference as follows: "Not having had the benefit of the opportunity to consult with [his assigned counsel] I was fearful a ruling or a decision would be made without having spoken to counsel, which ruling I would be bound by." According to defendant, his refusal to accept transportation was also prompted because his "PCR petition revolves around [the] argument that prior counsel was ineffective and unprepared, [therefore defendant] was fearful of having a final order entered by the [c]court in a pro-forma proceeding with unknown counsel."
In a letter dated October 18, 2005, the PCR court denied defendant's motion. Its decision included the following:
This [c]court notes that Mr. Pennington's admittedly intentional failure to appear at the July 29, 2005 PCR hearing, at which he was represented by counsel, was the reason he missed the opportunity to meet with his counsel. Further, pursuant to [Rule] 3:22-12, Mr. Pennington's original
[p]etition was filed almost one year after the five-year time limit had expired. He has not satisfied the requirement that his
[p]etition allege facts supporting that his claim was not timely filed because of excusable neglect; much less that those facts and circumstances rise to an exceptional level.
Defendant filed a notice of appeal nunc pro tunc on January 4, 2006, which we denied without prejudice on January 27, 2006. But on March 28, 2006, we granted defendant's motion for reconsideration and we ...