STATE OF NEW JERSEY VS. ANTIONETT E. PELZER (12-11-2561, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-0334-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTIONETT E. PELZER,

Defendant-Appellant.
_______________________________

Submitted October 31, 2017 – Decided November 13, 2017

Before Judges Reisner and Mayer.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
12-11-2561.

Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).

Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (John J. Lafferty, IV,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
 Defendant Antoinette E. Pelzer appeals from a July 6, 2016

order denying her petition for post-conviction relief (PCR). On

her appeal, she presents the following points of argument:

POINT ONE: THIS MATTER MUST BE REMANDED
BECAUSE THE PCR COURT DENIED RELIEF WITHOUT
STATING FINDINGS OF FACT OR CONCLUSIONS OF
LAW.

POINT TWO: MS. PELZER IS ENTITLED TO AN
EVIDENTIARY HEARING ON HER CLAIM THAT [HER]
ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL.

POINT THREE: THE PCR COURT ERRONEOUSLY RULED
THAT MS. PELZER'S PETITION WAS PROCEDURALLY
BARRED.

We affirm the order insofar as the PCR court rejected

defendant's counseled PCR arguments. However, because the PCR

court did not address defendant's pro se PCR arguments, we remand

the case to the PCR court for the purpose of considering and

deciding those issues.

Defendant was charged with stabbing two women to death in

an unprovoked attack, which was captured on video and witnessed

by several bystanders. Defendant pled guilty to two counts of

first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2), and was sentenced

to an aggregate term of eighty years in prison subject to the No

Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed the sentence

on an excessive sentencing calendar, noting the brutality of the

murders and the sentencing judge's cogent statement of reasons.

2 A-0334-16T1
State v. Pelzer, No. A-4722-13 (App. Div. Dec. 4, 2014), certif.

denied, 221 N.J. 566 (2015).

Defendant filed a pro se PCR petition dated June 15, 2015,1

contending that her guilty plea was not "knowing and intelligent,"

because her trial attorney did not explain to her "the terms and

ramifications" of the State's plea offer or the "elements of the

crimes to which petitioner was to plead guilty." She also

contended that her trial attorney failed to effectively argue that

aggravating factor one, N.J.S.A. 2C:44-1(a)(1) (the nature and

circumstances of the offense), should not apply. Defendant's PCR

assigned counsel submitted a formal brief contending that

defendant's trial counsel failed to effectively argue - in favor

of mitigating factor eight - that the crimes were the result of

circumstances unlikely to recur, because a prison term of life

with thirty years of parole ineligibility would prevent defendant

from committing future murders. See N.J.S.A. 2C:44-1(b)(8).

We agree with the PCR judge that the latter argument, even

if raised by trial counsel, would have been without merit and

would have made no difference to the sentence imposed. As a

result, defendant failed to satisfy both prongs of the test set

forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct.

1
Defendant's brief advises that the petition was filed on July 7,
2015.

3 A-0334-16T1
2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and was not entitled

to an evidentiary hearing on that PCR claim. See State v.

Preciose, 129 N.J. 451, 463-64 (1992).

However, the judge did not address defendant's pro se

arguments, perhaps because PCR counsel did not include a reference

to them in his formal brief and did not mention them at oral

argument. PCR counsel had an obligation to bring to the court's

attention defendant's pro se arguments, and the court had an

obligation to consider them. See R. 3:22-6(d); State v. Webster,

187 N.J. 254, 258 (2006); State v. Rue, 175 N.J. 1, 4 (2002).

Because this did not occur, we must remand this matter to the PCR

court to consider the arguments raised in defendant's pro se PCR

filing. We do not retain jurisdiction.

Affirmed in part, remanded in part.

4 A-0334-16T1