STATE OF NEW JERSEY VS. ANDRE DEMELO(12-11-2782, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-3903-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE DeMELO,

Defendant-Appellant.
_____________________________________________

Argued April 25, 2017 – Decided May 22, 2017

Before Judges Espinosa and Grall.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 12-11-2782.

James H. Maynard argued the cause for
appellant (Maynard & Sumner, LLC, attorneys;
Mr. Maynard, on the briefs).

Tiffany M. Russo, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney;
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).

PER CURIAM
 Defendant Andre DeMelo appeals the denial of a motion for

post-conviction discovery that he filed in anticipation of

filing a petition for post-conviction relief (PCR). The Rules

of Court do not authorize an order compelling discovery in this

context, and defendant did not make a showing of good cause and

relevance required for an exercise of the judge's inherent

authority to compel discovery when justice requires. R. 3:13-2;

R. 3:13-3; R. 3:13-4; see State v. Marshall, 148 N.J. 89, 268-

70, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88

(1997). Finding no abuse of discretion, we affirm. In re

Custodian of Records, Criminal Div. Manager, 214 N.J. 147, 163

(2013); Marshall, supra, 148 N.J. at 270.

On May 20, 2013, defendant pled guilty to one count of an

Essex County Indictment charging him with endangering the

welfare of a child as prohibited by N.J.S.A. 2C:24-4(b)(4), a

second-degree crime. On August 14, 2013, the judge sentenced

defendant as a third-degree offender to a three-year term of

imprisonment and dismissed the second count of the indictment.

Defendant did not file a direct appeal, but two years after

entry of the judgment, he retained an attorney "to determine

whether he ha[d] a plausible post-conviction relief claim,

pursuant to Rule 3:22-2." The attorney wrote the Essex County

Prosecutor's Office and requested "a complete copy of any/all

2 A-3903-15T2
discovery related to" his client's case.1 In a subsequent phone

call, the attorney was told the request was denied because the

case was closed.

On January 29, 2016, relying on Rules 3:13-2 through 3:13-

4, counsel moved for an order "permit[ting] discovery in this

post-conviction matter . . . as provided by the New Jersey Rules

of Court and State v. Marshall." In his certification

accompanying the motion, counsel represented that he asked for

the "original discovery," which is slightly narrower than the

request he made in the letter.

Counsel asserted three justifications in support of the

motion:

1) seeking discovery from [d]efendant's
former trial attorney . . . could create a
potential conflict of interest . . . ; 2)
the [d]efendant has requested that our
office not contact his former attorney; and
3) this office cannot properly consider
[d]efendant's PCR options, conduct a trial
analysis, and advise [d]efendant without the
surety of receiving the complete original
discovery . . . that was provided to defense
counsel.

Defense counsel and the Essex County Prosecutor's Office

briefed the issues, and on April 8, 2016, the trial court heard

1
The appendix on appeal includes the attorney's letter and a
certification submitted to the trial court with his motion. The
scope of counsel's engagement is stated in the brief submitted
on appeal.

3 A-3903-15T2
oral argument. During the argument, defense counsel

acknowledged that he had not contacted his client's former

attorney. He also advised that he routinely requests and

receives such discovery from other prosecutor's offices under

the same circumstances and has only been required to obtain an

order compelling production in a few cases. Counsel stressed

that he was not seeking production of the prosecutor's notes or

anything beyond discovery required by Rule 3:13-3. At the

conclusion of the argument, the judge delivered an oral opinion

stating his reasons for denying the motion. The judge relied on

Marshall.

On appeal counsel argues:

POINT I

THE MARSHALL COURT HELD THAT PCR PETITIONERS
ARE ENTITLED TO ORIGINAL GENERAL DISCOVERY.

POINT II

IN THE ABSENCE OF STATUTORY AUTHORITY, THE
COURT SHALL SET PROCEDURAL GUIDELINES.

POINT III

APPELLANT SHOULD HAVE THE RIGHT TO OBTAIN A
COMPLETE, UNADULTERATED RECORD OF THE
ORIGINAL, GENERAL DISCOVERY FROM THE
PROSECUTOR'S OFFICE.

Defendant's reliance on Rules 3:13-2 through 3:13-4 is

misplaced. Two of the Rules have no application. Rule 3:13-2

4 A-3903-15T2
addresses depositions when "a complaint, indictment or

accusation is pending," and Rule 3:13-4 addresses discovery in

capital cases.

Rule 3:13-3 addresses discovery prior to conviction.

Paragraph (a) governs pre-indictment discovery when the

"prosecutor has made a pre-indictment plea offer"; paragraph

(b)(1) governs the State's post-indictment discovery

obligations; and paragraph (f) imposes a continuing duty to

disclose. But in Marshall, the Supreme Court explained:

[O]ur Court Rules concerning petitions for
PCR, see R. 3:22-1 to -12 [now R. 3:22-1 to -
22], do not contain any provision authorizing
discovery in PCR proceedings. Moreover, the
general discovery obligations contained in the
Rules Governing Criminal Practice, see R.
3:13-2 to -4, do not extend to post-conviction
proceedings. Defendant relies on Rule 3:13-
3(g) [now Rule 3:13-3(f)], which refers to
parties' "[c]ontinuing [d]uty to [d]isclose"
discoverable materials. However, that
obligation continues only "during trial."
Thus, our Court Rules do not explicitly
authorize the discovery requested by defendant
in this case.

[148 N.J. at 268.]

However, the Court made it clear that the absence of

express authority to grant discovery related to PCR does not end

the inquiry. Courts have "'inherent power to order discovery

when justice so requires.'" Id. at 269 (emphasis added)

(quoting State ex rel. W.C., 85 N.J. 218, 221 (1981)); see id.

5 A-3903-15T2
at 268-70 (citing and discussing illustrative decisions by

courts of this State and other jurisdictions). Marshall allows

exercise of that inherent authority in PCR proceedings. Id. at

270.

The Court provided guidance on proper exercise of the

inherent power to require discovery in PCR proceedings. The

Court expected trial courts to invoke it only in the "unusual"

PCR case and only on a showing of "good cause" and relevance to

"defendant's case." Ibid. With that guidance, the Court made

it clear that this "inherent authority" is not generalized, but

rather it is dependent on the case before the court. Id. at

269-70. If there were any room for doubt, the Court closed the

space by stressing, "PCR 'is not a device for investigating

possible claims, but a means for vindicating actual claims.'"

Id. at 270 (quoting People v. Gonzalez, 800 P.2d 1159, 1206

(Cal. 1990), cert. denied, 502 U.S. 835, 112 S. Ct. 117, 116 L.

Ed. 2d 85 (1991)).

A grant of counsel's generalized request for pre-petition

PCR discovery to assess defendant's options for PCR would be in

direct conflict with the authorization and guidance the Supreme

Court so clearly provided in Marshall. This request is nothing

other than one to compel the prosecutor to provide information

from which a lawyer might identify possible claims. It is not

6 A-3903-15T2
tethered to any fact, evidence or argument particular to this

case. Instead, it is based on broad assertions of policy, such

as avoidance of possible conflicts of interest and unfounded PCR

claims. Thus, this discovery request falls squarely within the

class the Court disapproved in Marshall.

The foregoing is not intended to suggest that the procedure

counsel recommends is unworthy of consideration. Nor is it

intended to suggest that a prosecutor's office may not routinely

and uniformly comply with such requests. Those matters are not

before us, because they are outside the scope of a court's case-

specific inherent authority. Many years have passed since

Marshall was decided. Although the Rules governing discovery

and PCR have been amended, they have not been supplemented to

require the State to reproduce its initial discovery in order to

facilitate the filing of PCR-petitions.

Defense counsel takes issue with the State's and the trial

court's reliance on statements in Marshall that are not part of

the Court's holding. But the Court did not hold, as defendant

argues, that Rule 3:13-3 applies in PCR matters; the Court

explained that courts exercising inherent authority "may reason

by analogy to existing discovery rules, see R. 3:13-2 to -4, in

designing an appropriate PCR discovery order." Marshall, supra,

148 N.J. at 271; see, e.g., State v. Ball, 381 N.J. Super. 545,

7 A-3903-15T2
562 (App. Div. 2005) ("see[ing] no difference between a

defendant's right to post-indictment, pre-trial discovery

pursuant to R. 3:13-3 and post-conviction discovery relevant to

racial profiling," because a defendant must "present a colorable

claim of racial profiling to qualify for discovery") (internal

quotation marks omitted). Moreover, even if the passages from

Marshall discussed above could be characterized as dicta, this

court should follow the Supreme Court's guidance. State v.

Rawls, 219 N.J. 185, 198 (2014) (quoting State v. Dabas, 215

N.J. 114, 136-37 (2013)).

Defendant's arguments are thoughtful and persuasively

presented, but they are generalized — that is, divorced from the

evidence and issues in this case. The proper exercise of

judicial discretion involved in use of the inherent power to

grant discovery must be guided by the law and the specific case

before the court. See State v. Madan, 366 N.J. Super. 98, 108-

110 (App. Div. 2004) (providing an extensive discussion of

judicial discretion and cases addressing its proper exercise).

There was no abuse of discretion here.

Affirmed.

8 A-3903-15T2