NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1779-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN A. DENOFA,
Defendant-Appellant. _________________________
Submitted April 9, 2019 – Decided April 22, 2019
Before Judges Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-05- 0600.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Scott A. Coffina, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM In November 2002, a jury convicted defendant of murder. On February
21, 2003, he was sentenced to life imprisonment with a thirty-year period of
parole ineligibility. Following his conviction, defendant has filed multiple
appeals and petitions for post-conviction relief (PCR). He now appeals from a
September 26, 2017 order denying his second petition for PCR. Because the
PCR court did not fully address the argument that the first PCR counsel was
ineffective, which defendant had raised in his pro se second petition, we reverse
and remand for consideration of those unaddressed claims.
On direct appeal in 2005, we reversed defendant's conviction, finding that
the trial court had failed to properly instruct the jury on the issue of territorial
jurisdiction. State v. Denofa, 375 N.J. Super. 373, 396 (App. Div. 2005). The
Supreme Court, however, reversed and reinstated the conviction. State v.
Denofa, 187 N.J. 24, 29 (2006).
On May 30, 2007, defendant filed his first PCR petition, alleging
ineffective assistance of trial and appellate counsel. In an order and thirty-five-
page written decision entered on November 13, 2008, the first PCR court denied
the petition. Defendant filed an appeal from that order.
In 2011, while defendant's appeal of the denial of his first PCR petition
was pending, defendant filed a second PCR petition alleging, among other
A-1779-17T4 2 things, ineffective assistance of his first PCR counsel. In support of the second
petition, defendant submitted a sworn certification dated January 26, 2011,
wherein he alleged that PCR counsel: failed to secure affidavits or certifications
from experts whose opinions were "crucial" to the defense; failed to argue that
trial counsel had withheld "valuable information" from defendant concerning
these same experts; filed a deficient notice of appeal; "ignored [defendant] for
approximately a year and a half"; and failed to raise other trial errors by counsel.
The Law Division dismissed defendant's second PCR petition without prejudice
because the appeal of the first petition was pending before us.
On September 19, 2012, we affirmed the denial of defendant's first PCR
petition. State v. Denofa, No. A-2006-08 (App. Div. Sept. 19, 2012). The
Supreme Court denied defendant's petition for certification "without prejudice
to defendant raising in a new petition for post-conviction relief the issue of
ineffective assistance of post-conviction relief counsel for failure to raise in this
post-conviction relief petition appropriate claims requested by defendant." State
v. Denofa, 215 N.J. 482, 482 (2013).
In October 2013, shortly after the Court denied certification on the initial
petition, defendant filed a motion in the Law Division to reinstate his previously
dismissed second PCR petition, in which he had argued that his initial PCR
A-1779-17T4 3 counsel was constitutionally ineffective.
The Law Division denied defendant's request for relief. We, however,
reversed, holding that the second PCR judge had inappropriately treated
defendant's motion to reactivate his second PCR as a substantive petition, that
claims of ineffective assistance of PCR counsel are "authorized" under our court
rules, and that defendant should be afforded the opportunity to "fully present"
those claims for adjudication. State v. Denofa, No. A-3081-13 (App. Div. Mar.
7, 2016) (slip op. at 2).
On June 14, 2016, on remand, defendant filed a pro se brief in support of
his second petition for PCR wherein he alleged that trial counsel lied in a
certification and that "PCR counsel neglected to cite the record to prove trial
counsel's certification [was] directly disproven." In his brief, defendant did not
reference his 2011 pro se petition or supporting certification, wherein he had
alleged additional claims of ineffective assistance of PCR counsel. Thereafter,
on February 17, 2017, defendant, through assigned counsel, filed an amended
brief in support of the second petition for PCR, which, again, neither raised nor
referenced the 2011 pro se petition and certification alleging ineffective
assistance of PCR counsel. Instead, the brief principally charged that trial
counsel, not PCR counsel, had committed several ethical violations.
A-1779-17T4 4 The PCR court initially ordered an evidentiary hearing, but the State
moved for reconsideration. At oral argument, defendant's counsel incorporated
by reference "all of the argument that my client has made in all of his filings and
the other filings that have been submitted to the [c]ourt on his behalf" and
"ask[ed] the [c]ourt to make a determination on everything that's raised."
Counsel, however, did not specifically reference defendant's 2011 pro se petition
or the certification filed in conjunction with it. Instead, counsel directed his
presentation to the allegations raised in his brief in support of the second
petition—that all pertained to trial counsel. Counsel made only one ambiguous
reference to defendant's first PCR counsel:
[O]ne of the important things to take a look at and where it goes beyond anything that may have been available to my client in the first P.C.R. was failed to have been raised [sic] by his original P.C.R. attorney, which is also an issue, which, again, permits my client to raise it within this forum[.]
Following oral argument, the PCR court denied the second petition
without an evidentiary hearing, finding on the record that defendant's claims
regarding trial counsel's alleged conflicts of interest and other errors were
procedurally barred. The PCR court reasoned that
the issues raised here about trial counsel's conduct, conflict of interest during the course of the trial, choices, strategy or not, and trial proceedings all could
A-1779-17T4 5 have been raised in the past, because it's all based on information that either was, in fact, available or could have become available through reasonable diligence.
On this appeal, defendant makes one argument, which he articulates as
follows:
THE PCR COURT ERRED BY PROCEDURALLY BARRING DEFENDANT'S [SECOND] PETITION; THERFORE, THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO ADDRESS THE SUBSTANTIVE MERITS OF DEFENDANT'S CLAIMS.
Initially, we clarify the scope of this appeal. Defendant has not challenged
the PCR court's procedural dismissal of his claims of ineffective assistance of
trial counsel.
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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-1779-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN A. DENOFA,
Defendant-Appellant. _________________________
Submitted April 9, 2019 – Decided April 22, 2019
Before Judges Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-05- 0600.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Scott A. Coffina, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM In November 2002, a jury convicted defendant of murder. On February
21, 2003, he was sentenced to life imprisonment with a thirty-year period of
parole ineligibility. Following his conviction, defendant has filed multiple
appeals and petitions for post-conviction relief (PCR). He now appeals from a
September 26, 2017 order denying his second petition for PCR. Because the
PCR court did not fully address the argument that the first PCR counsel was
ineffective, which defendant had raised in his pro se second petition, we reverse
and remand for consideration of those unaddressed claims.
On direct appeal in 2005, we reversed defendant's conviction, finding that
the trial court had failed to properly instruct the jury on the issue of territorial
jurisdiction. State v. Denofa, 375 N.J. Super. 373, 396 (App. Div. 2005). The
Supreme Court, however, reversed and reinstated the conviction. State v.
Denofa, 187 N.J. 24, 29 (2006).
On May 30, 2007, defendant filed his first PCR petition, alleging
ineffective assistance of trial and appellate counsel. In an order and thirty-five-
page written decision entered on November 13, 2008, the first PCR court denied
the petition. Defendant filed an appeal from that order.
In 2011, while defendant's appeal of the denial of his first PCR petition
was pending, defendant filed a second PCR petition alleging, among other
A-1779-17T4 2 things, ineffective assistance of his first PCR counsel. In support of the second
petition, defendant submitted a sworn certification dated January 26, 2011,
wherein he alleged that PCR counsel: failed to secure affidavits or certifications
from experts whose opinions were "crucial" to the defense; failed to argue that
trial counsel had withheld "valuable information" from defendant concerning
these same experts; filed a deficient notice of appeal; "ignored [defendant] for
approximately a year and a half"; and failed to raise other trial errors by counsel.
The Law Division dismissed defendant's second PCR petition without prejudice
because the appeal of the first petition was pending before us.
On September 19, 2012, we affirmed the denial of defendant's first PCR
petition. State v. Denofa, No. A-2006-08 (App. Div. Sept. 19, 2012). The
Supreme Court denied defendant's petition for certification "without prejudice
to defendant raising in a new petition for post-conviction relief the issue of
ineffective assistance of post-conviction relief counsel for failure to raise in this
post-conviction relief petition appropriate claims requested by defendant." State
v. Denofa, 215 N.J. 482, 482 (2013).
In October 2013, shortly after the Court denied certification on the initial
petition, defendant filed a motion in the Law Division to reinstate his previously
dismissed second PCR petition, in which he had argued that his initial PCR
A-1779-17T4 3 counsel was constitutionally ineffective.
The Law Division denied defendant's request for relief. We, however,
reversed, holding that the second PCR judge had inappropriately treated
defendant's motion to reactivate his second PCR as a substantive petition, that
claims of ineffective assistance of PCR counsel are "authorized" under our court
rules, and that defendant should be afforded the opportunity to "fully present"
those claims for adjudication. State v. Denofa, No. A-3081-13 (App. Div. Mar.
7, 2016) (slip op. at 2).
On June 14, 2016, on remand, defendant filed a pro se brief in support of
his second petition for PCR wherein he alleged that trial counsel lied in a
certification and that "PCR counsel neglected to cite the record to prove trial
counsel's certification [was] directly disproven." In his brief, defendant did not
reference his 2011 pro se petition or supporting certification, wherein he had
alleged additional claims of ineffective assistance of PCR counsel. Thereafter,
on February 17, 2017, defendant, through assigned counsel, filed an amended
brief in support of the second petition for PCR, which, again, neither raised nor
referenced the 2011 pro se petition and certification alleging ineffective
assistance of PCR counsel. Instead, the brief principally charged that trial
counsel, not PCR counsel, had committed several ethical violations.
A-1779-17T4 4 The PCR court initially ordered an evidentiary hearing, but the State
moved for reconsideration. At oral argument, defendant's counsel incorporated
by reference "all of the argument that my client has made in all of his filings and
the other filings that have been submitted to the [c]ourt on his behalf" and
"ask[ed] the [c]ourt to make a determination on everything that's raised."
Counsel, however, did not specifically reference defendant's 2011 pro se petition
or the certification filed in conjunction with it. Instead, counsel directed his
presentation to the allegations raised in his brief in support of the second
petition—that all pertained to trial counsel. Counsel made only one ambiguous
reference to defendant's first PCR counsel:
[O]ne of the important things to take a look at and where it goes beyond anything that may have been available to my client in the first P.C.R. was failed to have been raised [sic] by his original P.C.R. attorney, which is also an issue, which, again, permits my client to raise it within this forum[.]
Following oral argument, the PCR court denied the second petition
without an evidentiary hearing, finding on the record that defendant's claims
regarding trial counsel's alleged conflicts of interest and other errors were
procedurally barred. The PCR court reasoned that
the issues raised here about trial counsel's conduct, conflict of interest during the course of the trial, choices, strategy or not, and trial proceedings all could
A-1779-17T4 5 have been raised in the past, because it's all based on information that either was, in fact, available or could have become available through reasonable diligence.
On this appeal, defendant makes one argument, which he articulates as
follows:
THE PCR COURT ERRED BY PROCEDURALLY BARRING DEFENDANT'S [SECOND] PETITION; THERFORE, THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO ADDRESS THE SUBSTANTIVE MERITS OF DEFENDANT'S CLAIMS.
Initially, we clarify the scope of this appeal. Defendant has not challenged
the PCR court's procedural dismissal of his claims of ineffective assistance of
trial counsel. Instead, defendant argues that the PCR court erred by ignoring the
"exhaustive litany of his first PCR counsel's ineffective assistance" that he had
previously set forth in his 2011 pro se certification and petition. Thus, defendant
seeks a remand for a ruling on the unaddressed issues.
"[S]ince this is the only issue briefed, all other issues"—including the
ineffective assistance of trial counsel claims that had been dismissed as
procedurally barred—"are deemed abandoned" on appeal. Comprehensive
Psychology Sys., P.C. v. Prince, 375 N.J. Super. 273, 274 n.1 (App. Div. 2005).
Accord State v. Bulu, 234 N.J. Super. 331, 337 n.1 (App. Div. 1989).
Consequently, we will not consider defendant's allegations of ineffective
A-1779-17T4 6 assistance of trial counsel. Those issue have not been appealed, and, as the PCR
court ruled, are procedurally barred.
We therefore focus on defendant's claim that his first PCR counsel was
ineffective. 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). PCR
counsel must "advance all of the legitimate arguments requested by the
defendant that the record will support," R. 3:22-6(d), and "make the best
available arguments in support of them." Rue, 175 N.J. at 19. Even if counsel
deems the claims to be meritless, counsel must still "list such claims in the
petition or amended petition or incorporate them by reference." R. 3:22-6(d).
Accord State v. Webster, 187 N.J. 254, 257-58 (2006).
Here, the PCR court, in its decision issued in September 2017, did not
address all of defendant's claims that his first PCR counsel was ineffective in
assisting him. Rather, the court stated only:
The last potential ground for P.C.R. relief on a second petition is that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first P.C.R. The allegations about trial counsel's conduct and allegedly false affidavits submitted in connection with the first P.C.R. is not an allegation that P.C.R. counsel was ineffective. . . . [A]llegations that trial counsel lied in the first P.C.R. is not a basis for alleging that P.C.R. counsel was ineffective.
A-1779-17T4 7 We can appreciate the court's oversight as to the additional claims that PCR
counsel was ineffective probably resulted from defendant's second PCR counsel
making only fleeting and vague references to the claims of ineffective PCR
counsel. Nevertheless, defendant has the right to have those issued addressed.
See R. 3:22-6(d); Webster, 187 N.J. at 258.
Indeed, both we and the Supreme Court have previously stated that
defendant has a right to have those issues addressed. In remanding this second
PCR petition in our decision issued on March 7, 2016, we stated that defendant's
allegations of ineffective assistance of his first PCR counsel should be
"assess[ed]" on remand. Denofa, slip op. at 2. Similarly, in denying
certification, the Supreme Court stated that its denial was "without prejudice to
defendant raising in a new petition . . . [the] failure to raise in this post-
conviction relief petition appropriate claims requested by defendant." Denofa,
215 N.J. at 482.
As in Webster, defendant's second PCR counsel failed to raise all the
issues of ineffective assistance of defendant's first PCR counsel in his brief. See
187 N.J. at 258. Instead, counsel only incorporated defendant's 2011 pro se
arguments on the record during oral argument when he asked that the court
incorporate "all of the argument[s] that [defendant] has made in all of his
A-1779-17T4 8 filings." Also, as in Webster, the court's silence on the ineffective assistance of
PCR counsel issues raised in defendant's pro se filings implies that the court did
not consider those allegations. Ibid. ("Because the judge did not comment in
any way on defendant's remaining claims, it is not clear to us that he, in fact,
considered them."). Indeed, the basis of the court's procedural denial was that
"the issues raised here about trial counsel's conduct . . . and trial proceedings all
could have been raised in the past[.]"
In summary, on this appeal, defendant did not challenge the PCR court's
ruling that his claims regarding his trial counsel providing ineffective assistance
are procedurally barred. Thus, that portion of the September 26, 2017 order
remains unchanged. Likewise, defendant did not challenge the PCR court's
ruling on his claim regarding ineffective assistance of PCR counsel based on
allegedly false affidavits provided by trial counsel. Thus, that ruling also
remains unchanged. Nonetheless, because the PCR court did not address the
merits of all of defendant's claims that his first PCR counsel was ineffective,
which defendant had raised in his 2011 pro se petition and certification, that
portion of the September 26, 2017 order is reversed and remanded for
consideration of only those unaddressed claims. No new claims shall be
presented or considered on remand. Finally, we note that we have not
A-1779-17T4 9 considered the merits of defendant's unaddressed claims; instead, we leave that
evaluation for the PCR court on remand.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
A-1779-17T4 10