On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-05-2057.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 2, 2009
Before Judges Reisner and Alvarez.
Defendant Brandon Parker appeals from an August 24, 2007 order denying his petition for post-conviction relief (PCR). Because we conclude that the PCR court either was unaware of, or misconstrued, our earlier order preserving defendant's right to file a PCR petition concerning the issues raised here, we reverse the August 24, 2007 order and remand this matter for further proceedings.
In connection with a fatal accident in which three people were killed, defendant, who was eighteen years old, pled guilty to three counts of second-degree death by auto, N.J.S.A. 2C:11-5a. According to the State, the accident occurred because defendant was driving in excess of seventy miles an hour in a twenty-five mile an hour zone; his car hit a bump, became airborne and landed in the opposite lane, causing a head-on crash with another vehicle. Consistent with the plea agreement, defendant received an aggregate sentence of ten years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant filed an appeal, which was heard on an Excessive Sentence Oral Argument (ESOA) calendar, on August 2, 2006.
Prior to the ESOA hearing, defendant's counsel submitted to us a letter from defendant raising essentially the same issues he would later seek to raise in his PCR petition. Defendant contended that his trial attorney had rendered ineffective assistance and had taken advantage of defendant's state of depression by "manipulating" defendant into pleading guilty. Defendant contended that he could have presented a defense and, in particular, that an accident reconstruction expert hired by the defense had opined that defendant's car was not traveling as fast as the prosecution claimed. In our order dated August 3, 2006, denying the ESOA appeal, we affirmed the sentence without prejudice to defendant's "right to seek post-conviction relief, including the argument that he received ineffective assistance at the trial level."
Consistent with our order, defendant filed the PCR petition that gave rise to this appeal. In support of his petition, defendant submitted an affidavit attesting that he was suffering from post-traumatic stress disorder and depression at the time of the plea. He also relied on the existence of the defense expert report, although his PCR attorney had been unable to obtain a copy from defendant's former trial attorney. At the PCR hearing, defendant's attorney made a proffer that defendant's girlfriend would testify to his depressed emotional state at the time of the plea, although she was not available on the day of the PCR hearing. Defendant's PCR counsel asked for additional time to produce the girlfriend's testimony, and also so that he could obtain a copy of the expert report from former trial counsel, who was uncooperative. The judge denied these requests, stating, "I don't like supplementals."
In an oral opinion placed on the record on August 13, 2007, the PCR judge denied the petition as barred by Rule 3:22-3, because he concluded that the issues defendant sought to raise could and should have been raised on direct appeal. However, he also found that defendant had failed to present a prima facie case of ineffective assistance and denied that claim "without prejudice" to defendant supplementing his pleadings with affidavits or certifications in a future PCR filing. The same language was repeated in the order denying the PCR petition. It appears from the judge's oral opinion of August 13, 2007, that he intended the "without prejudice" language to be a ruling in the alternative, in the event we reversed on appeal his decision on the Rule 3:22-3 issue.
We cannot agree with the PCR judge's conclusion that the petition was barred by Rule 3:22-3, which precludes a defendant from raising in a PCR petition issues that can still be raised on direct appeal. Defendant sought to raise the same issues on direct appeal, but we would not entertain them, because they involved matters outside the record. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Recognizing this to be the case, our 2006 ESOA order specifically preserved this defendant's right to file a PCR petition raising his ineffective assistance claims.
Accordingly, we reverse the PCR court's order dismissing the petition under Rule 3:22-3.*fn1
Turning next to the PCR judge's alternative disposition of dismissal without prejudice, we conclude that defendant should have been given an opportunity to supplement his presentation as his attorney requested. Other than not liking supplemental submissions, the judge did not explain why the matter could not be adjourned for a short time; we infer that the adjournment was denied primarily because the court had already decided to dismiss the petition under Rule 3:22-3. We reverse that dismissal as well, and remand the case to the trial court to allow defendant to supplement his petition and, if necessary, to subpoena the information and witnesses he was unable to obtain in time for the PCR hearing on August 13, 2007.