MFC RESOURCES, INC. VS. JUERGEN HOMANN(L-9612-13, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3566-14T2
STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM DYKEMAN,

Defendant-Appellant.
_________________________________

Argued March 13, 2017 – Decided March 23, 2017

Before Judges Nugent, Haas and Currier.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 03-
05-0435.

Steven M. Gilson, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Mr. Gilson, on the
brief).

Kimberly L. Donnelly, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Grace H. Park,
Acting Union County Prosecutor, attorney;
Bryan S. Tiscia, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant William Dykeman appeals from the August 25, 2014

Law Division order denying his petition for post-conviction relief

("PCR") without oral argument or an evidentiary hearing. We

reverse and remand for oral argument and further consideration of

the merits of defendant's position.

The facts developed at defendant's trial are set forth at

length in our decision on defendant's direct appeal of his

conviction and sentence. State v. Dykeman ("Dykeman I"), No. A-

0445-05 (App. Div. Mar. 4, 2009), certif. denied, 199 N.J. 542

(2009). Therefore, only a brief summary is necessary here.

In a seventeen-count indictment, a grand jury charged

defendant with committing various offenses against four separate

women. Id. at 1. Following a jury trial, defendant was convicted

of three counts of second-degree sexual assault by committing an

act of sexual penetration using physical force or coercion,

N.J.S.A. 2C:14-2(c)(1) (counts one, eight, and fifteen); three

counts of third-degree criminal restraint, N.J.S.A. 2C:13-2(a)

(counts two, five, and twelve); two counts of third-degree

terroristic threats, N.J.S.A. 2C:12-3(b) (counts four and nine);

and two counts of fourth-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(d) (counts eleven and seventeen). Id. at 1-2.

The jury found defendant not guilty of the remaining charges. Id.

at 2.

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 The trial judge sentenced defendant to a nine-year prison

term, subject to the 85% parole ineligibility provisions of the

No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on counts one,

eight, and fifteen to be served consecutively to each other; a

consecutive four-year term on count two, and concurrent terms on

the remaining counts. Id. at 2. Accordingly, defendant received

an aggregate sentence of thirty-one years, subject to twenty-seven

years of parole ineligibility under NERA. Ibid.

Defendant appealed his conviction and sentence. Ibid. We

affirmed defendant's conviction, but remanded the matter for

resentencing under State v. Natale, 184 N.J. 458 (2005). Id. at

14.

On remand, the trial judge reimposed the original sentence.

Defendant filed another direct appeal, and we affirmed the

sentence. State v. Dykeman ("Dykeman II"), No. A-6044-08 (App.

Div. Feb. 7, 2012), certif. denied, 212 N.J. 462 (2012).

In August 2009, defendant filed a petition for PCR. In the

brief prepared on defendant's behalf by his PCR counsel, and in

his own pro se submissions, defendant presented approximately

twenty-four points for the trial court's review. Among other

things, defendant argued that: (1) the trial judge made incorrect

evidentiary rulings; (2) the indictment should have been

dismissed; (3) various counts of the indictment should have been

3 A-3566-14T2
severed for purposes of trial; (4) the prosecutor engaged in

misconduct; and (5) he needed additional discovery to present more

PCR challenges.

Defendant also asserted that his trial attorney was

ineffective because he did not: (1) file various motions that

defendant believed should have been filed; (2) include certain

arguments in his summation; and (3) arrange for replacement counsel

for defendant because their relationship "had deteriorated to the

point where effective representation was impossible." Defendant

requested oral argument in connection with the trial court's

consideration of his petition for PCR.

The trial judge denied defendant's petition in a written

decision without conducting oral argument. The judge found that

many of defendant's arguments had been raised and rejected on

direct appeal, or could have been raised during those proceedings.

Thus, the judge ruled that these claims were procedurally barred

by Rule 3:22-4(a) and Rule 3:22-5.

With regard to defendant's claims of ineffective assistance

by his trial and appellate attorneys, the judge concluded that

defendant failed to satisfy the two-prong test of Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.

2d 674, 693 (1984), which requires a showing that counsel's

4 A-3566-14T2
performance was deficient and that, but for the deficient

performance, the result would have been different.1

Citing State v. Parker, 212 N.J. 269, 282-83 (2012), the

trial judge acknowledged that oral argument on a petition for PCR

should ordinarily be granted. However, the judge stated at the

conclusion of his written decision that "oral argument would not

have been helpful because defendant fail[ed] to establish a prima

facie case in favor of relief." This appeal followed.

On appeal, defendant raises the following contentions in the

brief submitted by his attorney:

POINT I

DEFENDANT'S CONVICTIONS MUST BE REVERSED
BECAUSE APPELLATE AND PCR COUNSEL WERE
INEFFECTIVE FOR FAILING TO PURSUE DEFENDANT'S
BEING DEPRIVED OF HIS RIGHT TO SECURE HIS
CHOICE OF COUNSEL; IN THE ALTERNATIVE, THIS
MATTER MUST BE REMANDED BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF COUNSELS'
INEFFECTIVENESS. (NOT RAISED BELOW).

POINT II

THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO HAVE
KEY WITNESSES TESTIFY.

1
The trial judge noted that defendant had also submitted
"voluminous briefs and exhibits which either raise[d] meritless,
frivolous legal arguments, or [did] not articulate any discernable
argument[.]" Therefore, the judge found that these matters did
"not merit any further discussion."

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 POINT III

DEFENDANT'S CONVICTIONS MUST BE REVERSED
BECAUSE TRIAL, APPELLATE, AND PCR COUNSEL WERE
INEFFECTIVE FOR FAILING TO PURSUE THE
PROSECUTOR'S UNDULY PREJUDICIAL AND
CUMULATIVE COMMENTS, WHICH EMPLOYED EPITHETS
TO DEMEAN DEFENDANT, BOLSTERED THE CREDIBILITY
OF THE ALLEGED VICTIMS, AND INJECTED HIS
PERSONAL BELIEF REGARDING DEFENDANT'S GUILT;
IN THE ALTERNATIVE, THIS MATTER MUST BE
REMANDED FOR AN EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF
COUNSELS' INEFFECTIVENESS. (PARTIALLY RAISED
BELOW).

POINT IV

THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
COUNSEL'S INEFFECTIVENESS REGARDING
INADEQUATE INVESTIGATION AND INADEQUATE
CONSULTATION.

POINT V

THIS MATTER MUST BE REMANDED BECAUSE DEFENDANT
WAS NOT AFFORDED LEGAL ARGUMENT. (NOT RAISED
BELOW).

Defendant raises the following arguments in a supplemental

pro se submission:

POINT I

THE TRIAL COURT ERRONEOUSLY DEPRIVED
[DEFENDANT] OF THE SIXTH AMENDMENT RIGHT TO
COUNSEL OF CHOICE, NOT SUBJECT TO HARMLESS-
ERROR ANALYSIS, AND IS SO CLEARLY IN VIOLATION
OF THE CONTROLLING LAW SO AS TO BE PROPERLY
TREATED AS A SUMMARY DISPOSITION MATTER UNDER
U.S. V. GONZALEZ-LOPEZ AS WELL AS WELL SETTLED

6 A-3566-14T2
 THIRD CIRCUIT AND U.S. SUPREME COURT CASE LAW
DIRECTLY ON POINT.

(A)(1) HISTORICAL RELEVANT FACTS.

(A)(2) HISTORY – WERE THE PARTIES READY FOR
TRIAL?

(A)(3) EFFORTS TO SECURE NEW COUNSEL.

(A)(4) EFFORTS TO COMMUNICATE WITH [THE
TRIAL JUDGE].

(A)(5) LEGAL ARGUMENT AND ANALYSIS BASED ON
THE FAILURE TO CONDUCT ANY BALANCING
TEST OR TO ASCERTAIN WHAT WAS REALLY
GOING ON WITH DEFENSE COUNSEL . . .
IN 2003 AND 2004.

Because we agree with defendant's contention in Point V of

his attorney's brief that the trial judge should have conducted

oral argument before deciding defendant's petition for PCR, we are

constrained to reverse the judge's decision.

We initially note that although "[t]here is no court rule

that specifically permits oral argument on a petition for [PCR],"

State v. Mayron, 344 N.J. Super. 382, 385-87 (App. Div. 2001),

there is a presumption in favor of oral argument. Parker, supra,

212 N.J. at 282. Moreover, a trial judge is vested with the

discretion to disallow it. Id. at 281 (citing State v. Mayron,

supra, 344 N.J. Super. at 386-87).

However, if a judge eschews oral argument, he or she must

"provide a statement of reasons that is tailored to the particular

7 A-3566-14T2
application, stating why the judge considers oral argument

unnecessary." Id. at 282. In determining whether to grant oral

argument, the trial judge should consider "the apparent merits and

complexity of the issues . . . , whether argument of counsel

[would] add to the written positions . . . , and in general,

whether the goals and purposes of the post-conviction procedure

are furthered by oral argument." Id. at 282 (alterations in

original) (quoting Mayron, supra, 344 N.J. Super. at 387).

In his written decision, the trial judge did not consider any

of the Parker factors. Instead, the judge merely stated that

defendant "fail[ed] to establish a prima facie case in favor of

relief" and, therefore, oral argument was not necessary. This

terse explanation was insufficient to meet the requirements of

Parker. Given the apparent complexity of the many issues raised

by defendant and his attorney, we are convinced that the judge

should have conducted oral argument before deciding defendant's

petition.

Accordingly, we reverse the August 25, 2014 order denying

defendant's petition for PCR and remand to the Law Division for

oral argument on the petition and a new decision on the merits.

Reversed and remanded. We do not retain jurisdiction.

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