NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited.
Defendant Edward Humphrey appeals from the dismissal of his petition for post-conviction relief (PCR), contending he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing, and that the court abused its discretion in conducting argument on the petition in his absence. We affirm.
Defendant, a home improvement contractor, was indicted on a charge of second-degree theft by deception,
Prior to sentencing, defendant moved to withdraw his plea and dismiss the indictment. He withdrew both motions in favor of a renegotiated plea to a third-degree charge of theft from one victim in exchange for the State's recommendation of a time-served sentence and restitution of $138,000. As part of the plea, defendant agreed the State could auction his possessions and apply the proceeds to the restitution amount. He was thereafter sentenced in accordance with the new plea agreement.
Defendant appealed his sentence, which we reviewed on a sentencing calendar,
At the date appointed for oral argument, defendant was incarcerated in Pennsylvania, having been released to authorities in that State at the conclusion of his New Jersey sentence.
The judge consequently heard argument and denied the petition. In an oral opinion, the judge noted defendant's claim his counsel failed to review the discovery with him was belied by defendant's statements made under oath in the plea colloquies. As to the claim his second counsel was unprepared for trial, the judge noted that no trial date had been set at the time of the renegotiated plea, as the case was before the court on motions. The judge further found "no indication at all that the outcome would have been different here" and thus that "the second prong is met as to either of these allegations." Accordingly, the judge found defendant could not establish ineffective assistance of his counsel in connection with his plea under the test established by the United States Supreme Court in
Although entering a final order denying the petition, the judge also advised counsel that if there was "a reason that [defendant] should have been here" or "there's something that he would have presented here and he wants to, in effect, have his day in court, himself. . . . You can always prepare a motion for reconsideration." No motion for reconsideration was made.
Defendant renews those arguments on appeal and adds that his petition should not have been argued without him or dismissed without an evidentiary hearing. He frames the issues as follows:
Our review of the record convinces us that Judge Moynihan carefully considered defendant's claims. We agree defendant failed to demonstrate the performance of his counsel was substandard or that but for the alleged errors, he would not have pled guilty and instead would have insisted on going to trial.
We also reject defendant's argument that the judge should not have proceeded to hear oral argument without him and should have held an evidentiary hearing on the petition.
As it was clear the court could not compel Pennsylvania authorities to produce defendant, and his counsel expressed defendant's clear preference that the hearing on the petition proceed, we do not find the judge abused his discretion in conducting oral argument in defendant's absence. No evidentiary hearing was required because defendant failed to establish a prima facie case for relief.