STATE OF NEW JERSEY v. JOHNNY BE JONES, III (14-05-1287, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 14, 2022
• Docket: A-2683-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2683-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHNNY BE JONES, III, a/k/a JOHNNY BE JONES, JOHNNY B. JONES, JOHNNY BERNARD JONES and JOHNNY BERNARD JONES III,

Defendant-Appellant.

Argued October 4, 2022 – Decided October 14, 2022

Before Judges Gilson and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-05-1287.

Alison Stanton Perrone, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Tamar Y. Lerer, Assistant Deputy Public Defender, of counsel and on the briefs).

Frank J. Ducoat, Special Deputy Attorney General/ Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Frank J. Ducoat, on the brief).

PER CURIAM

Defendant Johnny Be Jones, III filed a timely pro se petition for post-

conviction relief (PCR) and thereafter was assigned counsel by the Office of the

Public Defender's (OPD) Conviction Integrity Unit (CIU). The OPD failed to

provide the trial file to PCR counsel, eventually acknowledging the file could

not be located. The Essex County Prosecutor's Office (ECPO) refused PCR

counsel's request for all non-privileged pretrial discovery, which had been

provided to trial counsel. The PCR court denied defendant's ensuing motion to

compel discovery, finding defendant failed to demonstrate "good cause" for

production of discovery. We granted defendant leave to appeal from the PCR

court's March 28, 2022 order1 and now reverse.

I.

In February 2016, an Essex County jury convicted defendant of murder,

conspiracy, and related weapons offenses for his part in the stabbing death of a

strip club dancer. Defendant was sentenced to an aggregate sixty-year prison

1 The court's decision is dated March 28, 2022, and the accompanying order is dated March 25, 2022, neither copy provided on appeal sets forth the Law Division's filing date. A-2683-21 2 term, with an eighty-five percent parole disqualifier subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2, on the murder conviction. Defendant appealed

from his convictions and sentence, and we affirmed. State v. Jones, No. A-4707-

16 (slip op. at 24) (App. Div. Dec. 9, 2019), certif. denied, 241 N.J. 159 (2020).

The facts are detailed in our prior opinion. Jones, slip op. at 1-7. In

essence, the victim's body was found at a municipal dump site in January 2012,

two months after she was killed. Id. at 3. Witnesses placed defendant at the

strip club during the early morning hours of December 3, 2011, when the victim

was last seen alive. Ibid. DNA evidence implicated defendant and his co-

defendant, Brian Love, in the crime. Id. at 5. Thereafter, defendant and Love

were charged in the same indictment. Ibid. Love pled guilty to second-degree

manslaughter pursuant to a cooperating plea agreement and testified against

defendant at trial. Ibid.

Defendant filed his pro se PCR petition in November 2020, asserting trial

counsel was ineffective for failing to: (1) interview potential alibi witnesses;

and (2) request lesser-included offenses. In March 2021, PCR counsel was

assigned to represent defendant. The trial file was not included in the OPD's

"initial shipment of material" to PCR counsel. Thereafter, PCR counsel

repeatedly requested the missing file from the CIU. Each time, the CIU replied

A-2683-21 3 it had requested the trial file from the OPD's regional office but had received no

response.

Following the CIU's reply on June 14, 2021, and about one month after he

had filed a notice of appearance on behalf of defendant, PCR counsel sought a

copy of defendant's pretrial discovery from the State. In August 2021, the ECPO

located its closed trial file, consisting of three bankers boxes. According to PCR

counsel, the ECPO refused to "comply with [his] discovery request absent good

cause." To date, PCR counsel has not filed a supplemental brief or petition on

defendant's behalf.

Instead, in January 2022, PCR counsel filed a motion to compel discovery.

In his supporting brief, PCR counsel argued he was unable to "properly represent

[defendant] without reviewing discovery given the serious nature of this case."

For example, PCR counsel was unable to "properly evaluate" the raised

assertions in defendant's pro se petition. PCR counsel also stated that defendant

had asked him "to provide . . . discovery" and "submit an investigation on his

behalf regarding a state's witness."

Citing our Supreme Court's decision in State v. Szemple, 247 N.J. 82, 105

(2021), the State countered defendant failed to demonstrate "good cause

warranting the production of discovery." The State asserted each of defendant's

A-2683-21 4 proposed PCR contentions could be addressed via sources other than the trial

file. The State also argued production of the trial file would necessitate "an

enormous file review to remove any attorney work production, improperly

wasting the State's time and resources." During oral argument before us, the

State acknowledged production of the file would not be overly burdensome.

Instead, the State maintained defendant had not demonstrated good cause under

Szemple and State v. Marshall, 148 N.J. 89 (1997).

In his reply brief, PCR counsel noted defendant wished to assert a PCR

claim, contending trial counsel was ineffective for failing to advise defendant

about his potential sentencing exposure if convicted after trial. Before the return

date for the motion, PCR counsel provided to the court and the State the OPD's

February 16, 2022 correspondence, confirming "all efforts to locate the closed

trial file ha[d] been exhausted."2

Following oral argument on March 14, 2022, the PCR court reserved

decision. Thereafter, the court issued a written opinion, denying defendant's

motion. The court was persuaded defendant failed to demonstrate good cause

under the governing law. Noting defendant "essentially asked for all discovery

2 Apparently, the State had requested a signed certification from an OPD representative, indicating the file had been lost. The PCR court accepted counsel's representation that the trial file was lost. A-2683-21 5 that would have been provided prior to trial," the court concluded defendant's

request was "exactly like the generic demand that was discussed in Szemple."

Addressing defendant's pro se arguments, the court was convinced each

contention could be supported by other sources within defendant's knowledge

and control. As one example, the PCR court found defendant "knows more than

the State about potential individuals who were with him during the incident."

We granted defendant's ensuing motion to appeal. Defendant now raises

a single point for our consideration, reprising the contentions he asserted before

the PCR court:

THE STATE MUST PROVIDE DEFENDANT WITH A COPY OF THE DISCOVERY PROVIDED AT TRIAL BECAUSE NO MEANINGFUL [PCR] PROCEEDING CAN OCCUR WITHOUT THAT DISCOVERY.

More particularly, defendant argues trial discovery "is a fundamental starting

point for any post-conviction review." Accordingly, defendant argues PCR

counsel must first review the trial discovery before he can "meet . . . his

professional and ethical obligations," thereby providing effective

representation.

A-2683-21 6 II.

We review a decision on a motion for discovery prior to a PCR hearing

under an abuse of discretion standard. See Szemple, 247 N.J. at 94; Marshall,

148 N.J. at 271. Similar to our review of the trial court's discovery decision

made prior to or during trial, we "generally defer to a trial court's resolution of

a discovery matter, provided its determination is not so wide of the mark or is

not 'based on a mistaken understanding of the applicable law.'" State ex rel.

A.B., 219 N.J. 542, 554 (2014) (quoting Pomerantz Paper Corp. v. New Cmty.

Corp., 207 N.J. 344, 371 (2011)). The trial court's legal conclusions are

reviewed de novo. State v. Nash, 212 N.J. 518, 540-41 (2013).

Post-conviction discovery requests are "not granted automatically."

Szemple, 247 N.J. at 97. An "analysis of any motion for such discovery must

therefore necessarily consider the proposed use to which the discovery would

be put." Id. at 103. "[T]he State is not required post-conviction to allow

defendants to '"fish" through official files for belated grounds of attack on the

judgment, or to confirm mere speculation or hope that a basis for collateral relief

may exist.'" Id. at 107 (quoting Marshall, 148 N.J. at 270). "In most cases, a

post-conviction petitioner will be fully informed of the documentary source of

the errors that he brings to the PCR court's attention." Marshall, 148 N.J. at 270.

A-2683-21 7 PCR discovery "is not a device for investigating possible claims, but a means

for vindicating actual claims." Ibid. (quoting People v. Gonzalez, 275 Cal. Rptr.

729, 776 (1990)).

Nonetheless, "New Jersey courts have 'the inherent power to order

discovery when justice so requires.'" Id. at 269 (quoting State ex rel. W.C., 85

N.J. 218, 221 (1981)). This power may be invoked in a post-conviction

proceeding, but discovery should be allowed "only in the unusual case." Id. at

270. "[W]here a defendant presents the PCR court with good cause to order the

State to supply the defendant with discovery that is relevant to the defendant's

case and not privileged, the court has the discretionary authority to grant relief."

Ibid. "[A]ny PCR discovery order should be appropriately narrow and limited."

Ibid.

Because the PCR court's decision in this case impacts PCR counsel's

ability to adequately represent defendant, we summarize well-established

principles that underscore the significance of PCR and PCR counsel's role in the

proceeding. Our Supreme Court has long recognized the "rules governing [PCR]

provide a built-in 'safeguard that ensures that a defendant was not unjustly

convicted.'" Nash, 212 N.J. at 540 (quoting State v. McQuaid, 147 N.J. 464,

482 (1997)). Indeed, "[PCR] is a defendant's last opportunity to raise a

A-2683-21 8 constitutional challenge to the fairness and reliability of a criminal verdict in

our state system." State v. Feaster, 184 N.J. 235, 249 (2005).

In New Jersey, the right to the effective assistance of counsel extends to

PCR counsel. See State v. Rue, 175 N.J. 1, 18-19 (2002). In addition to the

constitutional right to counsel, "Rule 3:22-6(d) imposes an independent standard

of professional conduct upon an attorney representing a defendant in a PCR

proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010). The

Rule provides, in pertinent part:

Counsel should advance all of the legitimate arguments requested by the defendant that the record will support. If [the] defendant insists upon the assertion of any grounds for relief that counsel deems to be without merit, counsel shall list such claims in the petition or amended petition or incorporate them by reference. Pro se briefs can also be submitted.

[R. 3:22-6(d).]

Accordingly, "PCR counsel must communicate with the client, investigate

the claims urged by the client, and determine whether there are additional claims

that should be brought forward. Thereafter, counsel should advance all of the

legitimate arguments that the record will support." State v. Webster, 187 N.J.

254, 257 (2006) (emphasis added); see also State v. Velez, 329 N.J. Super. 128,

134 (App. Div. 2000) (recognizing PCR counsel's obligation to conduct "an

A-2683-21 9 exhaustive examination of the entire trial record" to "determine[] whether a

viable attack might have been made on the underlying conviction").

For example, a defendant may suffer from ineffective assistance of

counsel if his trial lawyer "fail[ed] to conduct an adequate pretrial

investigation." State v. Porter, 216 N.J. 343, 352 (2013); see also State v. Pierre,

223 N.J. 560, 583 (2015) (concluding trial counsel's performance was deficient

where "counsel chose to forego evidence that could have reinforced [the

defendant's] alibi"). Thus, PCR counsel's review of the client's pretrial

discovery is essential to determine whether trial counsel disregarded evidence

that could have supported a defense. The appropriate remedy for an attorney's

failure to provide effective assistance on PCR is a remand for a new PCR

hearing. Hicks, 411 N.J. Super. at 376.

In the present matter, the PCR court determined defendant failed to

demonstrate good cause for his pretrial discovery based, in part, on defendant's

overly broad request, contrary to the principles articulated by our Supreme Court

in Szemple. The circumstances here, however, are vastly different from those

presented in that case.

In Szemple, the defendant sought post-conviction discovery in

anticipation of a motion for a new trial almost thirty years after his conviction

A-2683-21 10 and forty-three years after the victim was killed. 247 N.J. at 87-88.

Acknowledging the defendant's request was limited, the Court nonetheless

concluded the defendant "failed to support his discovery request with any

explanation of his failure to raise the present issue before the trial court, during

direct appeal, or at the time of his first PCR." Id. at 109. Accordingly, the Court

concluded the defendant "fail[ed] to make the necessary showing of good cause

under Marshall." Id. at 110.

Conversely, here, defendant's discovery request is not tethered to a

potential claim of newly discovered evidence. The request was initiated by PCR

counsel after defendant pro se asserted timely ineffective assistance of counsel

claims against his trial attorney. Moreover, PCR counsel seeks production of

defendant's pretrial discovery – all of which had been previously provided to

trial counsel – so that PCR counsel can properly confer with defendant,

investigate his pro se assertions, and "determine whether there are additional

claims that should be brought forward." Webster, 187 N.J. at 257. PCR counsel

should not be hamstrung by a narrow reading of Szemple. Even if the good

cause standard under Szemple and Marshall applies here, however, we conclude

the circumstances presented here satisfy that standard.

Further, the State should have undertaken a less restrictive position

A-2683-21 11 consistent with its "primary duty," which "is not to obtain convictions, but to

see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012); see also

State v. Garcia, 245 N.J. 412, 418 (2021) ("Prosecutors are required to turn

square corners because their overriding duty is to do justice." ). Indeed, the

production of a defendant's lost pretrial discovery in a PCR matter is not

unprecedented. See State v. Hannah, 248 N.J. 148, 167 (2021) (noting the

prosecutor's office had forwarded to the defendant a replacement copy of his

"case file, including trial discovery and transcripts," which had been lost during

a prison lockdown).

Accordingly, we vacate the order under review and remand the matter to

the PCR court to enter a scheduling order for: the State to produce all non-

privileged pretrial discovery, which was previously provided to trial counsel;

PCR counsel to file his supplemental submission; the State to file its responding

brief; and defendant to file a reply brief, if any. All costs of production shall be

borne by the OPD. We express no opinion on the merits of defendant's PCR

claims.

Reversed and remanded. We do not retain jurisdiction.

A-2683-21 12