STATE OF NEW JERSEY v. JOHNNY BE JONES, III (14-05-1287, ESSEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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.
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