August 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARTIN L. ROGERS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-09-2887.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 6, 2010
Before Judges Stern and Skillman.
On August 11, 2006, designated counsel on defendant's petition for post conviction relief told the court she was not ready to proceed because her mother had recently passed away in Florida. The final illness commenced the prior May and, apparently for that reason, counsel filed nothing in support of the petition or in response to the court's scheduling order of May 9, 2006 or letter of July 26, 2006.
In a comprehensive opinion, the PCR judge denied the pro se petition requesting relief and gave counsel until October 17, 2007, five years after sentencing on remand, to "file a new PCR raising issues other than the three limited issues" disposed of in the opinion. PCR counsel consented to this procedure.
In State v. Rue, 175 N.J. 1 (2002) and State v. Webster, 187 N.J. 254 (2006) our Supreme Court detailed the obligations of PCR counsel to communicate with defendant, investigate the claims urged by the client and determine whether there are additional claims that should be brought forward. Webster, supra, 187 N.J. at 257. Counsel must also submit a brief and advance the arguments that may be made in support of the petition and list or incorporate any other contentions raised by defendant. Counsel did not perform any of these obligations, and we now remand for reconsideration of the petition after counsel has an opportunity to review the matter and prepare any amendments as well as a supporting brief, as required by the 2009 amendments to Rule 3:22-6.
We understand the frustration of Law Division judges who seek to dispose of petitions in a timely fashion, and hopefully the recent amendments to Rule 3:22 will help solve the problem. Moreover, the PCR counsel consented to the procedure employed by the judge whose dismissal was without prejudice with respect to new claims. However, we believe a remand is a more appropriate procedure. First, although counsel agreed to file the second PCR as defendant's counsel, we are not sure it was filed, and the assignment of counsel is required only on a first petition.
R. 3:22-6(a). See State v. King, 117 N.J. Super. 109 (App. Div. 1971); State v. Picciotti, 231 N.J. Super. 111 (App. Div. 1989). Second, one of the reasons counsel is assigned on the first petition is so that he or she can examine the claims, amend them and come up with meritorious arguments where possible. See R. 3:22-6(a). The order under review precludes that approach with respect to issues decided in the August 11, 2006 letter.
We recommend the appointment of new counsel for the remand proceedings.
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