STATE OF NEW JERSEY v. JOHN A. DENOFA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN A. DENOFA,

Defendant-Appellant.

________________________________________________________________

March 7, 2016

Submitted December 15, 2015 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-05-0600.

John DeNofa, appellant pro se.

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted of the murder of a 21-year-old exotic dancer who was strangled at a Pennsylvania motel and fell from the second floor to the sidewalk below. Her body was found below a bridge in New Jersey. The State's theory was that she had not died as a result of the strangling and fall in Pennsylvania, but rather, as a result of injuries inflicted in New Jersey.

Among the issues defendant raised in his direct appeal was that it was plain error for the trial court to fail to instruct the jury on territorial jurisdiction. We agreed and reversed his conviction, but discerned no error in any of the other arguments raised by defendant. State v. DeNofa, 375 N.J. Super. 373, 377 (App. Div. 2005). The Supreme Court reversed and reinstated his conviction in the following year. 187 N.J. 24 (2006).

Defendant filed his first petition for post-conviction relief (PCR) in May 2007. After the petition was denied without an evidentiary hearing, defendant filed an appeal and, in January 2011, filed a "successive" PCR petition. The successive petition was denied without prejudice because defendant's appeal from the denial of his first petition was pending.

We affirmed the denial of the PCR petition. State v. DeNofa, Docket No. A-2006-08 (Sept. 19, 2012). The Supreme Court denied certification in an order that stated the denial was "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." 215 N.J. 482 (2013).

Approximately one month after the Supreme Court denied certification, defendant filed a motion to reactivate his successive PCR petition. In a letter to the PCR judge, defendant stated that there were several claims of ineffective assistance of PCR counsel raised in his supplemental pro se brief that were not addressed by the PCR judge in his decision. Defendant stated further that after the court ruled on his pending motion "to reactivate [his] successive PCR petition," he would raise additional claims with supporting documentation that had not been submitted to the Appellate Division regarding the ineffectiveness of PCR counsel.

The PCR judge directed the State to respond to defendant's motion, which he characterized as defendant's third PCR petition. The judge asked the State to address any procedural bars to the petition as well as the substantive claim regarding ineffective assistance of counsel. The judge stated that, upon receipt of the State's response, he would decide whether an evidentiary hearing was necessary.

Defendant responded to this letter, stating this was his second PCR petition, which he sought to reactivate because it was dismissed without prejudice while his appeal from the first denial was pending. He asserted further that procedural bars did not apply because his claims related to the ineffective assistance of PCR counsel.

The State called for the summary denial of defendant's claims. The State refuted defendant's claim of ineffective assistance regarding a failure to obtain an expert's affidavit, noting the affidavit was before the court and rejected in defendant's first PCR petition. The State contended claims of prosecutorial misconduct based upon comments made during trial were procedurally barred because they could have been raised on direct appeal. R. 3:22-4. The State argued defendant's claims regarding PCR counsel's failure to pursue various defenses and the remainder of defendant's claims, which addressed strategic decisions at trial, lacked merit. The State concluded that defendant failed to set forth a prima facie basis for relief on any of his claims.

In his reply, defendant asked the court to consider that he was "moving for leave to file a second PCR, which will be based on claims that are not fully before the Court"; he had "merely presented a trimmed-down version of what [he] intend[ed] to present"; and "still ha[d] not presented a full petition or brief."

In February 2014, the PCR judge issued a letter opinion in which he granted defendant's motion to file a second PCR petition and simultaneously proceeded to treat defendant's submission to the court as that second PCR petition. The judge found the petition procedurally barred by Rules 3:22-4 and -5, noting the claims set forth in defendant's "new petition" were addressed and adjudicated in the first PCR petition.

In his appeal from that order, defendant presents the following argument

DEFENDANT-APPELLANT, JOHN DENOFA'S APPEAL SHOULD BE GRANTED, BECAUSE HIS PETITION FOR PCR (POST-CONVICTION-RELIEF) WAS RULED UPON BEFORE APPELLANT EVER HAD A CHANCE TO FILE IT, THEREFORE, VIOLATING HIS CONSTITUTIONAL RIGHTS, PURSUANT TO THE UNITED STATES CONSTITUTION, AMENDMENT VI, AND XIV; AND THE NEW JERSEY CONSTITUTION OF 1947, ART. 1, 1, AND ART. 1, 10.

Although the PCR judge gave thoughtful consideration to the issues that had been identified in defendant's motion to reactivate his previously dismissed PCR petition, we are constrained to conclude the judge erred in treating defendant's motion as a substantive petition for PCR. Defendant repeatedly stated he would file a complete petition after the court ruled on his motion to "reactivate" his earlier PCR petition, and advance arguments not previously raised. The motion itself was entirely unnecessary as defendant was free to file a second petition, as noted in the Supreme Court order.

We therefore reverse the denial of defendant's "petition" and remand for further proceedings in which he may fully present claims available for adjudication as a second petition for post-conviction relief. We note that this petition is subject to Rule 3:22-4(b) and claims against PCR counsel are authorized under Rule 3:22-4(b)(2)(C). In assessing the performance of PCR counsel, however, it remains the case that claims of ineffective assistance of trial and appellate counsel and other alleged trial errors are subject to the procedural bars set forth in Rules 3:22-4(a) and -5.

Reversed and remanded. We do not retain jurisdiction.