STATE OF NEW JERSEY v. MARC A. JORDAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5661-07T45661-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARC A. JORDAN,

Defendant-Appellant.

_____________________________________

 

Submitted February 8, 2010 - Decided

Before Judges Rodr guez and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-04-0371.

Marc A. Jordan, appellant pro se.

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Thomas Cannavo, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Marc A. Jordan appeals from the denial of his motion to withdraw his guilty plea. The trial court denied the motion on the basis that it was barred by the doctrine of res judicata. We reverse and remand in order that the motion be heard on the merits.

Defendant pled guilty on Ocean County Indictment No. 97-04-0371 to first degree robbery, N.J.S.A. 2C:15-1(a)(2), and on June 25, 1999, the trial court sentenced him to thirteen years imprisonment, with three years of parole ineligibility. He was also required to make restitution in the sum of $2,625 and to pay the requisite monetary assessments and penalties. This conviction was one of the predicate convictions for two life sentences without parole under N.J.S.A. 2C:43-7.1(a) (the "three strikes" law) that defendant received thereafter on other charges.

The sentence on the Ocean County indictment was affirmed on appeal. State v. Jordan, Docket No. A-2602-01 (App. Div. Feb. 10, 2003). Defendant subsequently moved to withdraw his guilty plea or in the alternative to amend his first degree robbery conviction to a second degree conviction, challenging the factual basis for the plea. The motion was denied by the trial court, and that denial was affirmed on appeal. State v. Jordan, Docket No. A-1449-05 (App. Div. June 15, 2006).

On April 24, 2008, defendant filed another motion to withdraw his guilty plea, contending that the State had failed to disclose exculpatory discovery and that if he had that information at the time of the plea, he never would have pled guilty to this crime. Specifically, defendant maintained that in January 2008, he requested records from the Dover Township Police Department Records Bureau regarding this crime, and he received back a supplemental report dated November 13, 1996, that he had never seen before. He asserted that the report contains exculpatory information and that he would not have pleaded guilty if he had known then that this exculpatory material existed. The account by the victim set forth in this report differs in a number of material respects from her grand jury testimony.

The trial court denied defendant's application to withdraw the guilty plea on the basis that it was barred by the doctrine of res judicata because an earlier motion to withdraw the guilty plea had been denied. This ruling was in error. The doctrine of res judicata precludes "relitigation of the same controversy between the same parties." In re Estate of Gabrellian, 372 N.J. Super. 432, 446 (App. Div. 2004). For the doctrine to apply there must be a final judgment from a court of competent jurisdiction and an identity of issues, parties, and cause of action. Ibid. Here there is no identity of issues. The preceding motion was to withdraw the plea for lack of a factual basis. The motion involved in this appeal was to withdraw the plea due to a Brady violation which defendant maintains he discovered after the former motion was denied. These are two very different issues. Accordingly, we remand in order that the trial court consider the motion on its merits.

Reversed and remanded.

 

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 215 (1963).

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A-5661-07T4

March 5, 2010