On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 90-05-01013.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2011
Before Judges Payne and Hayden.
Defendant, James R. Holman, a/k/a Maha Mudra, appeals from the denial of his first petition for post-conviction relief (PCR). In a pro se brief, he argues:
DEFENDANT WAS DENIED HIS RIGHT TO APPELLATE REVIEW DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON HIS FIRST POST-CONVICTION PETITION.
POINT III DEFENDANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS WHEN TRIAL JUDGE PREVENTED HIM FROM PARTICIPATING IN HIS OWN TRIAL.
Because the record is inadequate to definitively determine this matter, we remand the case for further fact finding and legal analysis.
Following the death of Corey Grant, defendant was indicted for murder, N.J.S.A. 2C:11-3a(1) and (2), conspiracy to commit murder, N.J.S.A. 2C:11-3a(1) and (2) and N.J.S.A. 2C:5-2, possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. He was tried before a jury, convicted on all counts, and sentenced to an aggregate term of life in prison with thirty years of parole ineligibility. Defendant appealed, and we reversed his conviction for murder and conspiracy to commit murder in an unpublished decision. State v. Holman, No. A-1223-91 (App. Div. June 7, 1994). The State's petition for certification was denied. State v. Holman, 138 N.J. 265 (1994).
Upon retrial, for reasons that remain contested,*fn1 defendant refused to leave his cell, and trial was held in absentia. Defendant claims that his cell was uninhabitable because of a toilet backup and that he was denied proper clothing for trial. His trial counsel and the State claim that defendant purposefully backed up the toilet and refused to leave his cell, threatening to kill any guards who sought to remove him forcefully. Following trial, defendant was again found guilty of conspiracy and murder. He claims that he refused to attend his sentencing,*fn2 where a life sentence with thirty years of parole ineligibility was imposed on June 21, 1996.
No appeal was filed on defendant's behalf, and the record does not indicate whether defendant timely sought an appeal or was aware of the procedural steps necessary to perfect such an appeal. However, the record contains evidence of defendant's attempts, commencing on May 29, 2000, to obtain the transcripts of his second trial. In a letter to the Public Defender of that date, defendant wrote, in relevant part:
PLEASE BE ADVISED, that this is the third (3rd) letter that I have written to your office requesting my Transcripts from my trial of 1994.*fn3
Because your office has consistently refused to turn over my transcripts, I now face the prospect of being disallowed to file my appeal pursuant to the five (5) year statute of limitation.
The dates of defendant's two prior letters are unknown. However, defendant claims in his appellate brief that the earliest letter was sent in 1997, one year after sentencing.
The Public Defender responded on June 7, 2000, stating:
I am in receipt of your letter of May 29, 2000 requesting copies of your trial transcript from 1994. This office has no record of any trial proceedings on your indictment in 1994. Our records indicate that you were tried and sentenced in 1991. The transcripts ...