STATE OF NEW JERSEY v. ANDREW ALSTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3037-02T53037-02T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW ALSTON,

Defendant-Appellant.

_________________________________

 

Submitted February 16, 2006 - Decided April 13, 2006

Before Judges Wefing and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Mercer County,

No. 88-12-1459.

Appellant submitted a pro se brief.

Joseph L. Bocchini, Jr., Mercer County

Prosecutor, attorney for respondent

(Dorothy Hersh, Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Defendant Andrew Alston appeals from the denial of his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we remand for further proceedings.

Because of the length of time that has elapsed since defendant's convictions, and the fact that defendant was indicted twice, fairly close together, once by a Mercer County grand jury and once by a State grand jury for similar offenses, as well as the somewhat disjointed nature of the record presented to us, it is difficult to state the exact sequence of what has occurred. It is apparent that the passage of time and the state of the record also led to similar difficulties on the part of the trial court. From the record before us, we glean the following.

Defendant was indicted under Indictment 88-12-1459 for possession of cocaine, possession of cocaine with intent to distribute, and possession of cocaine with intent to distribute in a school zone. Tried to a jury, he was convicted in 1991 of these offenses. He was sentenced to an aggregate term of fourteen years in prison, with a mandatory minimum term of six and one-half years. Defendant appealed his convictions and sentence, and we affirmed. State v. Alston, No. A-393-91 (App. Div. Jan. 28, 1993). Defendant did not seek certification from the Supreme Court. He did, however, file a petition for PCR, which the trial court denied. Defendant appealed from that denial, and we affirmed. State v. Alston, No. A-2329-95 (App. Div. May 8, 1997).

Subsequent to his 1991 convictions, defendant was also convicted of a number of additional narcotics-related offenses under Indictment SGJ 276-91-5 and sentenced to an aggregate thirty years in prison, to be served consecutive to the sentence imposed for his 1991 convictions. Defendant appealed these convictions and sentence, and we affirmed. State v. Alston, No. A-5912-91 (App. Div. Aug. 17, 1994). Defendant sought certification, which the Supreme Court denied. State v. Alston, 138 N.J. 271 (1994).

Thereafter, defendant filed a petition seeking PCR in connection with these latter convictions. The trial court denied his petition in 1998, and we affirmed that denial. State v. Alston, No. A-1980-98 (App. Div. July 5, 2000).

In April 2002, defendant filed a second petition for PCR. Defendant sought representation from the Office of the Public Defender in connection with this second petition. He was initially informed that he appeared to qualify for such representation. When the Public Defender's Office reviewed its files in greater detail, however, it realized that defendant was filing his second petition for PCR and that under its established policies, defendant would not qualify for legal representation by the Public Defender absent "good cause."

Unfortunately, defendant was not advised of that until after the trial court had considered the merits of defendant's pro se papers. In addition, although defendant had filed petitions seeking PCR in connection with his convictions under both indictments, 88-12-1459 and SGJ 276-91-5, and raised separate issues as to each, it appears that the trial court treated both petitions as relating to 88-12-1459.

Defendant has appealed from the trial court's order. On appeal, he raises the following contentions.

POINT I THE LAW DIVISION ERRED BY DECIDING THE MATTER ON DEFENDANT'S MOVING PAPERS, WITH NO RESPONSE FROM THE STATE AND WITHOUT MAKING A "GOOD CAUSE" DETERMINATION ON THE REQUEST FOR APPOINTMENT OF COUNSEL, OR WITHOUT ANY INPUT BY THE PUBLIC DEFENDER AFTER THE MATTER WAS ALREADY ASSIGNED.

POINT II DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT UNDER THE SIXTH AMENDMENT TO REPRESENT HIMSELF, WHEREFORE, POST-CONVICTION RELIEF MUST BE GRANTED.

POINT III DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS OF A FAIR TRIAL BY THE ADMISSION OF A CRIMINAL CONVICTION THAT WAS THEN PENDING APPEAL TO BE USED TO IMPEACH HIS CREDIBILITY, WHEREFORE, A BE TRIAL SHOULD BE GRANTED.

POINT IV DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE ON HIS DIRECT APPEAL WHEN APPELLATE COUNSEL FAILED TO RAISE THE ISSUE OF HIS CONSTITUTIONAL RIGHT TO REPRESENT HIMSELF AND WHEN APPELLATE COUNSEL FAILED TO RAISE THE ISSUE OF IMPROPER IMPEACHMENT BY A CONVICTION THAT WAS PENDING DIRECT APPEAL.

POINT V DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL DURING HIS ORIGINAL PCR, WHEREFORE, THE MATTER SHOULD BE REMANDED AND CONDUCTED ANEW.

POINT VI DEFENDANT WAS DEPRIVED OF DUE PROCESS BY THE STATE'S CONCEALMENT OF THE STATEMENT OF IRENE UPSHUR, WHO TOLD THE POLICE THAT SHE KNEW DEFENDANT AND HE WAS NOT THE PERSON WHO FLED FROM POLICE.

It is apparent that the procedural confusion which plagued this matter below has continued on appeal. The Office of the Mercer County Prosecutor has filed a responding brief in which it declines to address Points II through V raised in appellant's brief on the basis that they involve an indictment returned by a State Grand Jury, as opposed to a Mercer County Grand Jury. Defendant, however, in his reply brief includes a letter from the Chief of the Appellate Bureau of the Attorney General's Office to the Mercer County Prosecutor referring the matter to that office for handling in its entirety. We reject defendant's request that in light of this procedural misstep by the prosecutor's office, we treat those points in his brief as unopposed.

As we noted earlier, defendant in these petitions for PCR raised separate issues in connection with each indictment. For his convictions under Indictment 88-12-1459, defendant alleged a Brady violation, Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), not a claim of ineffective assistance of counsel. For his convictions under SGJ 276-91-5, defendant sought relief based upon an allegation of ineffective assistance of counsel.

The trial court issued a letter opinion dated October 9, 2002, which stated it referred to defendant's petition under 88-12-1459, but the body of the letter opinion contained no mention of defendant's allegation of a Brady violation. Further, it contained procedural details of the proceedings under SGJ 276-91-5, not 88-12-1459. It denied defendant's petition for procedural reasons, citing the passage of time, R. 3:22-12, and that defendant was raising issues that had either been addressed before, R. 3:22-5, or could have been raised on direct appeal, R. 3:22-4. It did not, however, tie these general principles into the specific claims defendant was attempting to raise.

From the record before us, it is not possible to determine when defendant should be chargeable with notice of the alleged Brady violation, the grounds for relief asserted under 88-12-1459. And, while it is true that defendant had previously asserted ineffectiveness of trial counsel in connection with SGJ 276-91-5, we cannot determine from the record before us whether defendant previously raised his contention that the trial court in that proceeding violated his right to represent himself, Faretta v. California, 423 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), or that his original appellate counsel was ineffective for failing to argue that on his initial direct appeal.

Because of these uncertainties, we decline to address these issues at this time. We remand this matter to the trial court for further proceedings, in which both the procedural and the substantive issues may be addressed. Further, in light of the fact that defendant will not be represented by the Public Defender's Office, he should be afforded the opportunity to file a supplemental brief relating to each of the two indictments at issue before the trial court rules on the merits of his contentions. The trial court should, of course, set a reasonable deadline for the submission of these supplemental papers.

Remanded for further proceedings. We do not retain jurisdiction.

 

Defendant in his brief to us and the trial court in its letter opinions refer to a filing date of April 2002. The record before us does not contain a petition for PCR filed in April 2002; it does contain a petition for PCR filed in October 2001.

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A-3037-02T53037-02T5

April 13, 2006