NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

The singular task before us in this appeal is to interpret our Supreme Court's May 2, 2013 order directing the trial court to conduct "a hearing" on defendant's petition for post-conviction relief ("PCR"). The trial court construed the Court's order to require only oral argument on defendant's petition. After listening to PCR counsel's oral argument, the court dismissed the petition without an evidentiary hearing. For the reasons that follow, we agree with defendant that the court misconstrued the Court's order and therefore remand for an evidentiary hearing.

This is the pertinent background. In 1997, defendant was tried before a jury and convicted of first-degree armed robbery. Prior to trial the State offered him a plea arrangement in which it would recommend an eighteen-year custodial sentence with a six-year period of parole ineligibility. The plea offer stated, in three somewhat conclusory words, "waive extended term." The phrase signified that if defendant agreed to the plea offer, the State would not seek to have the court impose an extended prison term despite defendant's record of persistent offenses.

Defendant rejected the plea offer. He went to trial and was found guilty. At sentencing, the court imposed an extended term of fifty years with a twenty-year parole disqualifier.

Defendant's conviction and sentence were upheld on direct appeal in January 2000. State v. Murphy, No. A-2573-98 (App. Div. Jan. 20, 2000). The Supreme Court denied certification. State v. Murphy, 164 N.J. 560 (2000).

Defendant then filed a PCR petition alleging that he had been denied effective assistance of counsel by the two successive attorneys who represented him before and at trial. He contended in a certification that they did not properly advise him before trial of his potential exposure to a discretionary extended-term sentence. As part of those sworn contentions, defendant certified that his second attorney told him about a month before trial that the most severe sentence he would get if he were found guilty would be twenty years with a ten-year parole disqualifier, but that he probably would receive eighteen years with a nine-year disqualifier.

Defendant claims that had he not received this alleged mistaken advice, he would not have decided to risk his chances of conviction at trial. His PCR attorney submitted a supporting certification stating that he had spoken with the second trial attorney, who related that he "must have" discussed defendant's extended-term exposure with him before trial. However, no such documentation of that discussion was reflected in the case file. PCR counsel did locate a July 25, 1997 post-trial letter to defendant from the second trial attorney, in which the attorney described the extended-term concept to defendant and indicated that he would "discuss the law in detail when you [defendant] are sentenced."

The first PCR judge rejected defendant's contentions of ineffective assistance of counsel and dismissed the PCR petition without hearing oral argument or conducting an evidentiary hearing. That judge concluded that the assertion from defendant's trial counsel indicating that he "must have" explained to defendant his extended-term exposure before trial, plus the language of the plea offer itself, was sufficient to overcome defendant's claim that he had received improper advice.

Defendant appealed the PCR denial to this court. In an unpublished opinion, we affirmed the denial. State v. Murphy, No. A-1678-10 (App. Div. Oct. 24, 2012).

Defendant then filed a petition for certification with the Supreme Court, arguing that the PCR court erred in denying him both oral argument on his PCR application and an evidentiary hearing. In the meantime, the Court issued its opinion in State v. Parker, 212 N.J. 269, 282 (2012), instructing that oral argument on PCR applications, where requested, should generally be granted by the trial courts.

On May 2, 2013, the Court then issued a one-page order in this case directing that "the petition for certification is granted and the matter is summarily reversed and remanded to the trial court for a hearing on defendant's post-conviction relief petition." State v. Murphy, 213 N.J. 533 (2013) (emphasis added). The Court did not elaborate further or retain jurisdiction.

The PCR matter returned to the trial court where a different judge ("the second PCR judge") considered the matter. That judge permitted oral argument by defendant's PCR counsel. However, the judge determined that no evidentiary hearing was required, essentially for the same reasons previously noted by the first PCR judge in 2008.

Defendant now appeals, contending that the trial court disobeyed the Supreme Court's order because it did not provide him with an evidentiary hearing. He raises the following points:

The State counters that if the Supreme Court wanted the trial court to conduct more than oral argument, it would have specified that explicitly in its order.

We agree with defendant's interpretation of the Court's order. The Court had squarely before it the analysis of the first PCR judge, which was upheld by a panel of this court, concluding that defendant had not shown a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992).

It is logically implicit in the Court's order that it disagreed with the first PCR judge and this court as to the non-necessity for an evidentiary hearing, presumably because of the conflicting proofs amassed thus far concerning what defendant had been advised before trial about his exposure to an extended term. We do not presume that the Court intended the remand to the trial court to be a perfunctory exercise to simply allow oral argument on a foregone legal conclusion.

We thus read the word "hearing" in the Court's May 2, 2013 order to mean an "evidentiary hearing" at which witnesses — including defendant and perhaps one or both of his former trial attorneys1 — will testify, and after which the PCR court will make related credibility findings. We must remand the matter to complete such a hearing.

Vacated and remanded. We do not retain jurisdiction.