April 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HORACE GLENN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, Nos. 94-12-1780.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 25, 2008
Before Judges C.S. Fisher and C.L. Miniman.
Defendant Horace Glenn appeals from a final order of November 3, 2006, in which the judge denied defendant's motion for an order compelling the Office of the Public Defender, Middlesex County Region, to provide full discovery of the material and documents contained in the Public Defender's file respecting the judgment of conviction in this matter for which a sentence of thirty-two years was imposed on December 13, 1996.
By pleading guilty on April 15, 1996, under Indictment No. I-1780-12-94, defendant was convicted of first-degree armed robbery, first-degree aggravated sexual assault, third-degree criminal restraint, third-degree terroristic threats, third-degree possession of a weapon for unlawful purposes, fourth-degree aggravated assault and fourth-degree resisting arrest. He also pled guilty the same day under Accusation No. A-9604-00-89 to second-degree conspiracy to have aggravated criminal sexual contact.
Defendant was sentenced to sixteen years in State prison for the first-degree armed robbery with eight years of parole ineligibility. He was also sentenced to sixteen years with eight years of parole ineligibility on the first-degree aggravated sexual assault, which was to run consecutively to the armed-robbery sentence, but this term was to be served at the Adult Diagnostic and Treatment Center in Avenel. Various sentences from eighteen months to five years were imposed on all other offenses, all to run concurrent to the sixteen-year sentence for the armed robbery. Defendant was also sentenced to ten years with five years of parole ineligibility on the conviction of second-degree conspiracy, which was to run concurrently with the armed-robbery sentence.
Sometime between February 14, 2005, and August 2, 2006, defendant was released from East Jersey State Prison in Rahway and transferred to Avenel. However, before he was transferred, an electrical fire broke out on February 25, 2004, in the 6-North wing of East Jersey State Prison and all of the documents he possessed respecting his conviction and sentence were lost in the fire, as well as all of his other possessions.
In an effort to obtain duplicates of those records, defendant and a paralegal assistant at Avenel turned to the Public Defender. The paralegal wrote to a private attorney in New Brunswick who represented defendant at the request of the Public Defender. On August 8, 2006, that attorney's office advised that the file had been turned over to the Public Defender's office sometime previously. The paralegal assistant then wrote to the Deputy Public Defender in New Brunswick seeking copies of the various documents and materials.
When no answer was received by September 22, 2006, defendant filed a notice of motion returnable on October 13, 2006, under the indictment and accusation numbers seeking an order compelling the Deputy Public Defender to provide him with copies of the following documents:
1. Complaint/warrant, 2. Police reports,
3. Affidavit in support of complaint/ warrant,
4. Miranda*fn1 rights documents,
5. Complete grand jury colloquy,
6. Grand jury voting records,
7. Grand jury attendance sheet,
8. Avenel diagnostic evaluation report,
9. Pre-sentence investigation report,
10. Plea Hearing transcript,
11. Sentencing transcript,
12. All DNA laboratory reports,
13. Victim's hospital examination reports,
14. Victim's audio/video transcript statement,
15. Transcripts of all court proceedings of the above-captioned indictment and accusation,
16. Judgment of conviction,
17. All documents and statements made by defendant,
18. Copy of indictment,
19. Any and all other related documents concerning this action to be utilized as discoverable evidence that is in the prosecutor's or attorney's possession, and
20. Copies of statements and/or documents from all parties engaged or not engaged in this matter.
In defendant's supporting certification he stated that his discovery materials had been lost in a fire at East Jersey State Prison and he related the efforts he had made to secure copies. Defendant filed a letter brief in support of his motion, but he did not explain his current need for the materials.
It was not until October 3, 2006, that the Deputy Public Defender responded. She advised defendant that a different attorney had represented him than the attorney to whom the paralegal assistant wrote and suggested that he contact that attorney because the Deputy Public Defender could not locate his file, the case having been closed on January 6, 1997. Defendant responded that the first attorney to whom he wrote represented him initially and shared an office with the second attorney.
The motion judge denied defendant's motion on November 3, 2006, explaining her reasoning in a letter opinion of even date.
Defendant asks this court to order the Office of the Public Defender to supply the defendant with discovery materials from his case in order to provide a complete defense on direct appeal pursuant to Rule 3:13-3. This court is not inclined to grant this request for several reasons. First, the defendant's time in which a direct appeal may be filed passed several years ago. See Rule 2:4-1. Second the Public Defender's Office has stated in its correspondence dated October 3, 2006, that it does not have the defendant's file despite an exhaustive search. Finally, Rule 3:13-3 covers discovery prior to the indictment and immediately after, this rule does not give the court power to demand discovery years after the conviction of a defendant.
This appeal followed the entry of the order.
Defendant presents the following issues for our consideration:
POINT I -- NEW JERSEY COURT RULE 3:13-3(b) PROVIDES THAT A DEFENDANT BE PROVIDED WITH [H]IS POST[-]INDICTMENT DISCOVERY MATERIALS.
POINT II -- N.J.S.A. 30:27-24, NEW JERSEY SEXUALLY VIOLENT PREDATOR ACT WAS NOT EXPLAINED TO APPELLANT UPON SENTENCE NOR WAS APPELLANT MADE AWARE THAT HE WAS EXPOSED TO POTENTIAL FURTHER LOSS OF LIBERTY AS A RESULT OF SAME. [(Not Raised Below)]
As to the first issue, we find little fault with the motion judge's conclusions.*fn2 Clearly, the time to appeal the conviction and sentence lapsed in 1997. R. 2:4-1. It is equally clear that a court cannot order an attorney to produce a file that he or she never had or does not now have. Lakewood Trust Co. v. Fid. & Deposit Co., 81 N.J. Super. 329, 339 (Law Div. 1963) ("[T]he movant must show that the papers demanded are in the custody or control of the persons upon whom the demand is made."). Thus, we affirm the order entered for the reasons stated by the motion judge.
However, it is equally clear that defendant is entitled to the documents and evidence he requested and that he has a right to seek post-conviction relief so long as he can demonstrate that he is entitled to relief from the bars to such relief specified in Rule 3:22. As a consequence, our affirmance of the order entered by the motion judge is without prejudice to a subsequent motion to compel the Attorney General or the Middlesex County Prosecutor to provide defendant with copies of the requested documents. See State v. Ball, 381 N.J. Super. 545, 562 (App. Div. 2005) (holding that Rule 3:13-3 applies to post-conviction discovery).
With respect to the second issue raised on appeal,
It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." [Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]
We comment only that the issue raised may present a ground for post-conviction relief and that defendant cannot present such a petition without at least some of the documents he requests.
If defendant files a new motion, it should be heard by this motion judge to be certain that any subsequent motion for production of the requested documents will be heard by her as she will be familiar with the prior proceedings and our opinion.