                                NOT FOR PUBLICATION WITHOUT THE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-1779-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN A. DENOFA,

     Defendant-Appellant.
_________________________

                    Submitted April 9, 2019 – Decided April 22, 2019

                    Before Judges Rothstadt and Gilson.

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

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Steven M. Gilson, Designated Counsel, on
                    the brief).

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Alexis R. Agre, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      In November 2002, a jury convicted defendant of murder. On February

21, 2003, he was sentenced to life imprisonment with a thirty-year period of

parole ineligibility. Following his conviction, defendant has filed multiple

appeals and petitions for post-conviction relief (PCR). He now appeals from a

September 26, 2017 order denying his second petition for PCR. Because the

PCR court did not fully address the argument that the first PCR counsel was

ineffective, which defendant had raised in his pro se second petition, we reverse

and remand for consideration of those unaddressed claims.

      On direct appeal in 2005, we reversed defendant's conviction, finding that

the trial court had failed to properly instruct the jury on the issue of territorial

jurisdiction. State v. Denofa, 375 N.J. Super. 373, 396 (App. Div. 2005). The

Supreme Court, however, reversed and reinstated the conviction.            State v.

Denofa, 187 N.J. 24, 29 (2006).

      On May 30, 2007, defendant filed his first PCR petition, alleging

ineffective assistance of trial and appellate counsel. In an order and thirty-five-

page written decision entered on November 13, 2008, the first PCR court denied

the petition. Defendant filed an appeal from that order.

      In 2011, while defendant's appeal of the denial of his first PCR petition

was pending, defendant filed a second PCR petition alleging, among other


                                                                            A-1779-17T4
                                         2
things, ineffective assistance of his first PCR counsel. In support of the second

petition, defendant submitted a sworn certification dated January 26, 2011,

wherein he alleged that PCR counsel: failed to secure affidavits or certifications

from experts whose opinions were "crucial" to the defense; failed to argue that

trial counsel had withheld "valuable information" from defendant concerning

these same experts; filed a deficient notice of appeal; "ignored [defendant] for

approximately a year and a half"; and failed to raise other trial errors by counsel.

The Law Division dismissed defendant's second PCR petition without prejudice

because the appeal of the first petition was pending before us.

      On September 19, 2012, we affirmed the denial of defendant's first PCR

petition. State v. Denofa, No. A-2006-08 (App. Div. Sept. 19, 2012). The

Supreme Court denied defendant's petition for certification "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." State

v. Denofa, 215 N.J. 482, 482 (2013).

      In October 2013, shortly after the Court denied certification on the initial

petition, defendant filed a motion in the Law Division to reinstate his previously

dismissed second PCR petition, in which he had argued that his initial PCR


                                                                             A-1779-17T4
                                         3
counsel was constitutionally ineffective.

      The Law Division denied defendant's request for relief. We, however,

reversed, holding that the second PCR judge had inappropriately treated

defendant's motion to reactivate his second PCR as a substantive petition, that

claims of ineffective assistance of PCR counsel are "authorized" under our court

rules, and that defendant should be afforded the opportunity to "fully present"

those claims for adjudication. State v. Denofa, No. A-3081-13 (App. Div. Mar.

7, 2016) (slip op. at 2).

      On June 14, 2016, on remand, defendant filed a pro se brief in support of

his second petition for PCR wherein he alleged that trial counsel lied in a

certification and that "PCR counsel neglected to cite the record to prove trial

counsel's certification [was] directly disproven." In his brief, defendant did not

reference his 2011 pro se petition or supporting certification, wherein he had

alleged additional claims of ineffective assistance of PCR counsel. Thereafter,

on February 17, 2017, defendant, through assigned counsel, filed an amended

brief in support of the second petition for PCR, which, again, neither raised nor

referenced the 2011 pro se petition and certification alleging ineffective

assistance of PCR counsel. Instead, the brief principally charged that trial

counsel, not PCR counsel, had committed several ethical violations.


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                                        4
      The PCR court initially ordered an evidentiary hearing, but the State

moved for reconsideration. At oral argument, defendant's counsel incorporated

by reference "all of the argument that my client has made in all of his filings and

the other filings that have been submitted to the [c]ourt on his behalf" and

"ask[ed] the [c]ourt to make a determination on everything that's raised."

Counsel, however, did not specifically reference defendant's 2011 pro se petition

or the certification filed in conjunction with it. Instead, counsel directed his

presentation to the allegations raised in his brief in support of the second

petition—that all pertained to trial counsel. Counsel made only one ambiguous

reference to defendant's first PCR counsel:

            [O]ne of the important things to take a look at and
            where it goes beyond anything that may have been
            available to my client in the first P.C.R. was failed to
            have been raised [sic] by his original P.C.R. attorney,
            which is also an issue, which, again, permits my client
            to raise it within this forum[.]

      Following oral argument, the PCR court denied the second petition

without an evidentiary hearing, finding on the record that defendant's claims

regarding trial counsel's alleged conflicts of interest and other errors were

procedurally barred. The PCR court reasoned that

            the issues raised here about trial counsel's conduct,
            conflict of interest during the course of the trial,
            choices, strategy or not, and trial proceedings all could

                                                                           A-1779-17T4
                                        5
            have been raised in the past, because it's all based on
            information that either was, in fact, available or could
            have become available through reasonable diligence.

      On this appeal, defendant makes one argument, which he articulates as

follows:

            THE PCR COURT ERRED BY PROCEDURALLY
            BARRING DEFENDANT'S [SECOND] PETITION;
            THERFORE,  THIS   MATTER    MUST    BE
            REMANDED FOR THE PCR COURT TO ADDRESS
            THE SUBSTANTIVE MERITS OF DEFENDANT'S
            CLAIMS.

      Initially, we clarify the scope of this appeal. Defendant has not challenged

the PCR court's procedural dismissal of his claims of ineffective assistance of

trial counsel. Instead, defendant argues that the PCR court erred by ignoring the

"exhaustive litany of his first PCR counsel's ineffective assistance" that he had

previously set forth in his 2011 pro se certification and petition. Thus, defendant

seeks a remand for a ruling on the unaddressed issues.

      "[S]ince this is the only issue briefed, all other issues"—including the

ineffective assistance of trial counsel claims that had been dismissed as

procedurally barred—"are deemed abandoned" on appeal.             Comprehensive

Psychology Sys., P.C. v. Prince, 375 N.J. Super. 273, 274 n.1 (App. Div. 2005).

Accord State v. Bulu, 234 N.J. Super. 331, 337 n.1 (App. Div. 1989).

Consequently, we will not consider defendant's allegations of ineffective

                                                                           A-1779-17T4
                                        6
assistance of trial counsel. Those issue have not been appealed, and, as the PCR

court ruled, are procedurally barred.

      We therefore focus on defendant's claim that his first PCR counsel was

ineffective. 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). PCR

counsel must "advance all of the legitimate arguments requested by the

defendant that the record will support," R. 3:22-6(d), and "make the best

available arguments in support of them." Rue, 175 N.J. at 19. Even if counsel

deems the claims to be meritless, counsel must still "list such claims in the

petition or amended petition or incorporate them by reference." R. 3:22-6(d).

Accord State v. Webster, 187 N.J. 254, 257-58 (2006).

      Here, the PCR court, in its decision issued in September 2017, did not

address all of defendant's claims that his first PCR counsel was ineffective in

assisting him. Rather, the court stated only:

            The last potential ground for P.C.R. relief on a second
            petition is that the petition alleges a prima facie case of
            ineffective assistance of counsel that represented the
            defendant on the first P.C.R. The allegations about trial
            counsel's conduct and allegedly false affidavits
            submitted in connection with the first P.C.R. is not an
            allegation         that      P.C.R.       counsel      was
            ineffective. . . . [A]llegations that trial counsel lied in
            the first P.C.R. is not a basis for alleging that P.C.R.
            counsel was ineffective.

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                                        7
We can appreciate the court's oversight as to the additional claims that PCR

counsel was ineffective probably resulted from defendant's second PCR counsel

making only fleeting and vague references to the claims of ineffective PCR

counsel. Nevertheless, defendant has the right to have those issued addressed.

See R. 3:22-6(d); Webster, 187 N.J. at 258.

      Indeed, both we and the Supreme Court have previously stated that

defendant has a right to have those issues addressed. In remanding this second

PCR petition in our decision issued on March 7, 2016, we stated that defendant's

allegations of ineffective assistance of his first PCR counsel should be

"assess[ed]" on remand.       Denofa, slip op. at 2.      Similarly, in denying

certification, the Supreme Court stated that its denial was "without prejudice to

defendant raising in a new petition . . . [the] failure to raise in this post-

conviction relief petition appropriate claims requested by defendant." Denofa,

215 N.J. at 482.

      As in Webster, defendant's second PCR counsel failed to raise all the

issues of ineffective assistance of defendant's first PCR counsel in his brief. See

187 N.J. at 258. Instead, counsel only incorporated defendant's 2011 pro se

arguments on the record during oral argument when he asked that the court

incorporate "all of the argument[s] that [defendant] has made in all of his

                                                                           A-1779-17T4
                                        8
filings." Also, as in Webster, the court's silence on the ineffective assistance of

PCR counsel issues raised in defendant's pro se filings implies that the court did

not consider those allegations. Ibid. ("Because the judge did not comment in

any way on defendant's remaining claims, it is not clear to us that he, in fact,

considered them."). Indeed, the basis of the court's procedural denial was that

"the issues raised here about trial counsel's conduct . . . and trial proceedings all

could have been raised in the past[.]"

      In summary, on this appeal, defendant did not challenge the PCR court's

ruling that his claims regarding his trial counsel providing ineffective assistance

are procedurally barred. Thus, that portion of the September 26, 2017 order

remains unchanged. Likewise, defendant did not challenge the PCR court's

ruling on his claim regarding ineffective assistance of PCR counsel based on

allegedly false affidavits provided by trial counsel.       Thus, that ruling also

remains unchanged. Nonetheless, because the PCR court did not address the

merits of all of defendant's claims that his first PCR counsel was ineffective,

which defendant had raised in his 2011 pro se petition and certification, that

portion of the September 26, 2017 order is reversed and remanded for

consideration of only those unaddressed claims.          No new claims shall be

presented or considered on remand.           Finally, we note that we have not


                                                                             A-1779-17T4
                                         9
considered the merits of defendant's unaddressed claims; instead, we leave that

evaluation for the PCR court on remand.

      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




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