SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1276-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANKLIN D. NICOLOUDAKIS,

Defendant-Appellant.

______________________________

Argued May 17, 2017 – Decided

Before Judges Accurso and Lisa.

On appeal from Superior Court of New Jersey, 

Law Division, Mercer County, Indictment No. 

07-08-0842.

Frank D. Nicoloudakis, appellant, argued the 

cause pro se.

Olivia M. Mills, Assistant Prosecutor, argued 

the cause for respondent (Angelo J. Onofri, 

Mercer County Prosecutor, attorney; Laura 

Sunyak, Assistant Prosecutor, of counsel and 

on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

June 29, 2017
2 A-1276-14T4

Defendant appeals the September 29, 2014 order denying his 

motion for reconsideration of the August 14, 2014 order dismissing 

his Post-Conviction Relief (PCR) petition without prejudice. For 

the reasons that follow, we reverse.

Defendant pled guilty to fourth-degree stalking, N.J.S.A.

2C:12-10b, for which he was sentenced on March 31, 2008 to a fiveyear term of probation. Defendant filed a direct appeal, and we 

affirmed in an unpublished opinion. State v. Nicoloudakis, No. 

A-0383-08 (App. Div. Aug. 16, 2010). 

On the last day allowed to meet the five-year limitation 

period for filing a PCR petition, see Rule 3:22-12(a)(1), defendant 

filed his PCR petition on April 1, 2013.1 On July 20, 2013, 

defendant filed an amended petition. He filed both the original 

and amended petitions as a pro se party. 

The criminal case management office sent three letters to 

defendant dated August 20, 2013, October 17, 2013, and January 8, 

2014. Defendant does not dispute that he received these letters. 

We have not been provided with the letters in the appellate record. 

From the information we have, which defendant also does not 

dispute, the letters directed him to inform the court whether he 

wished to be assigned a public defender, whether he obtained 

 

1 The five-year anniversary, March 31, 2013, fell on a Sunday, 

as a result of which his filing the next day was timely. 
3 A-1276-14T4

private counsel, or whether he would proceed pro se. There is no 

indication in the record before us that the letters informed 

defendant of any particular consequence that would flow from his 

failure to respond.

Defendant did not respond to any of the letters. He contends 

that his reason for not responding was that he believed "Criminal 

Case Management" was an arm of the prosecutor's office, not of the 

court, and he had no obligation to respond to a communication 

coming from the prosecutor's office. Whether or not that 

contention is credible is not dispositive of this appeal.

On August 14, 2014, the trial court issued a sua sponte order 

dismissing defendant's petition "without prejudice due to 

Defendant's failure to either submit an affidavit of indigency or 

inform the Court as to whether or not he will proceed pro se or 

with private counsel." An accompanying letter by the court set 

forth a statement of reasons as follows:

This Court is in receipt of your postconviction relief application filed on July 

20, 2013. Pursuant to R. 3:22-6(a) ". . . a 

defendant who wants to be represented by the 

Office of the Public Defender may annex 

thereto a sworn statement alleging indigency 

in the form prescribed by the Administrative 

Director of the Courts. . ." As this is your 

first post-conviction relief application, you 

are entitled to assignment of counsel. In 

letters dated August 20, 2013; October 17, 

2013 and January 8, 2014, you were directed 

to inform the Court as to whether or not you 
4 A-1276-14T4

wished to be assigned a public defender 

however you still have not submitted an 

affidavit of indigency nor in the alternative, 

any documents stating that you have obtained 

private counsel or will be proceeding pro se. 

Therefore, this post-conviction relief 

application is dismissed without prejudice.

Defendant filed a timely motion for reconsideration on 

September 3, 2014, accompanied by a brief. He filed these 

documents in his pro se capacity. He expressed his regrets for 

not responding to the letters from criminal case management and 

explained his reason, as we have set forth above. He also stated 

that "the requests for designation of representation never set a 

time limit for reply or indicated that without a response, the 

entire petition and opportunity for having the issues reviewed 

would be summarily dismissed." He expressed concern that, because 

he was now beyond the five-year limitation period, refiling might 

not be a viable alternative. 

Defendant contended that the exhibits he attached, which 

included the first page of his original and amended petitions, 

identified the fact that he was acting pro se. He contended that 

these designations constituted an unequivocal assertion on his 

part that he was proceeding pro se and "[t]here was no legitimate 

reason for the office staff [in the criminal case management 

office] to ignore those declarations." He concluded that the 
5 A-1276-14T4

court "either did not consider, or failed to appreciate the 

significance of probative, competent evidence." He requested that 

the court reverse its decision of August 14, 2014, and reinstate 

his PCR petition.

The court issued an order on September 29, 2014, denying 

defendant's motion "because there is not a sufficient showing of 

plainly incorrect reasoning, a failure to consider evidence or new 

information to be considered pursuant to Rule 4:49-2." In the 

judge's accompanying letter stating reasons for denial of the 

motion, he stated: "Initially, when a defendant petitions for 

Post-Conviction Relief pro se, the defendant subsequently requests 

for an attorney, or responds to inquiries stating that they will 

continue pro se." Relying on State v. Figueroa, 186 N.J. 589 

(2006), the judge stated that defendant's failure to respond to 

the letters did not constitute a clear and unequivocal request to 

represent himself. The judge concluded that because this was 

defendant's first PCR petition, he was "free to refile at [his] 

earliest convenience and the Court will consider all circumstances 

regarding your filing date." 

In Figueroa, a capital murder prosecution, the trial court 

denied the defendant's motion for self-representation. Id. at 

592. He was convicted of non-capital murder and other offenses. 

Ibid. This court reversed, concluding that the defendant had been 
6 A-1276-14T4

denied his right of self-representation. Ibid. The Supreme Court 

affirmed and reiterated the probing inquiry that must be made of 

a defendant requesting the right of self-representation at a trial, 

and particularly, differentiating between complete selfrepresentation (for which there is a constitutional right) and 

hybrid representation (for which there is no constitutional right 

but is discretionary with the court). Id. at 593-97. Only through 

such a probing inquiry, can a proper decision be made as to whether 

the assertion of the right to self-representation is knowing, 

voluntary, and unequivocal. Ibid. 

The circumstances here were quite different. A PCR petitioner 

"who wants to be represented by the Office of the Public Defender 

may annex [to his or her petition] a sworn statement alleging 

indigency in the form prescribed by the Administrative Director 

of the Courts, which form shall be furnished to the defendant by 

the criminal division manager's office." R. 3:22-6(a). There is 

no indication in this record that defendant was ever furnished 

with such a form. He was never directed to come to court for an 

in-person inquiry by a judge on the subject. Defendant has 

consistently maintained that he does not want to be represented 

by the public defender. Whatever doubt might have been caused by 

his non-response to the letters was clarified in defendant's

reconsideration motion. 
7 A-1276-14T4

Rule 4:49-2, authorizing reconsideration motions, requires a 

showing that the court's decision was based on plainly incorrect 

reasoning, the court failed to consider evidence, or there is a 

good reason for it to consider new information submitted with the 

reconsideration motion. Cummings v. Bahr, 295 N.J. Super. 374, 

384-85 (App. Div. 1996). The rule is especially significant and 

useful where the initial order was issued without having been 

litigated or argued, as in this case. Calcaterra v. Calcaterra, 

206 N.J. Super. 398, 403-04 (App. Div. 1986). 

Relying on Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. 

Div. 2010), the State argues that reconsideration "is not 

appropriate merely because a litigant is dissatisfied with a 

decision of the court or wishes to reargue a motion." However, 

in this case, there was no motion and there was no argument. 

Defendant's reconsideration motion was made in response to a sua 

sponte order issued without prior notice or opportunity to be 

heard in writing or orally. Defendant's reconsideration motion 

was his first opportunity to state his position as to why his PCR 

petition should not be dismissed on the sole ground that he did 

not advise the court of his wish to proceed pro se. Having made 

his position clearly known in his reconsideration motion, the sole 

basis underpinning the dismissal order no longer existed. Because 

of the lack of prior notice of the potential dismissal, there was 
8 A-1276-14T4

indeed good reason for the court to consider the new information 

submitted. In these circumstances, due process requires as much. 

Failure to do so constituted an abuse of discretion.

We note that the rule permitting PCR dismissal without 

prejudice and allowing refiling within ninety days, even beyond 

the five-year limitation period, applies only when the dismissal 

is on the basis that the petition is not cognizable under Rule

3:22-2, or fails to contain the necessary contents or verification 

required by Rule 3:22-8. R. 3:22-12(a)(4). Neither of those 

circumstances provided a basis for the dismissal order in this 

case. Defendant's concern that refiling within ninety days of the 

dismissal order, but outside the five-year limitation period,

might not be viable was not unjustified. Rule 3:22-12(a)(4) does 

not appear to apply, and the judge's letter to defendant stating 

that he was free to refile "at his earliest convenience and the 

Court will consider all circumstances regarding your refiling 

date" was not an indication of an automatic right to refile. 

One final note. In his appeal, defendant has contended that 

the judge dismissed his petition and denied his reconsideration 

motion based on personal animus arising out of some previous 

interactions between defendant and the judge in unrelated matters. 

The record contains no evidence to support this contention, which 

we deem to be unfounded and purely speculative. This contention 
9 A-1276-14T4

plays no part in our decision. Further, we have no view as to the 

merits of defendant's PCR petition. Indeed, the record before us 

contains nothing more than the first page of his original and 

amended petitions, and we are not even aware of the grounds for 

relief he asserts.

The September 29, 2014 order denying defendant's 

reconsideration motion is reversed. The August 14, 2014 order 

dismissing defendant's PCR petition is vacated. The PCR petition 

is reinstated. 

Reversed and remanded for further proceedings. We do not 

retain jurisdiction.