STATE OF NEW JERSEY VS. CHRISTOPHER H. BLANK (06-08-1914, ATLANTIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1060-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER H. BLANK,
Defendant-Appellant.
_________________________
Submitted December 14, 2021 – Decided March 25, 2021
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
06-08-1914.
Christopher H. Blank, appellant pro se.
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Mario C. Formica, Deputy First
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from an October 17, 2019 order denying his second
petition for post-conviction relief (PCR). Defendant, who is self-represented,
argues that the prosecutor impermissibly withheld exculpatory evidence in the
form of a hospital toxicology report that revealed the presence of cocaine in
defendant's blood. Defendant also raises a procedural argument, claiming the
PCR court erred by not granting his request for oral argument. Our review of
the record confirms that defendant's request for oral argument was overlooked
and that the PCR court offered no reasons for denying that request. The State's
appellate brief, moreover, fails to address defendant's procedural argument even
though it is clearly set forth in a point heading in defendant's brief. In these
circumstances, we are constrained to remand the matter for the PCR court to
conduct an oral argument.
I.
Because we deem it necessary to remand on the procedural issue, we need
only briefly summarize the circumstances leading to this appeal. Defendant was
convicted by a jury of twelve counts including three counts of first -degree
attempted murder of law enforcement officers and three counts of second-degree
aggravated assault of those officers. At trial, the State presented evidence that
defendant resisted arrest when officers attempted to execute an outstanding
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warrant. During the struggle, defendant wrested a gun from one of the officers
and shot her multiple times beneath her bullet-proof vest.
Defendant was sentenced to an aggregate 85-year term of imprisonment
subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed
his conviction and sentence on direct appeal. State v. Blank, A-5815-07T1
(App. Div. Apr. 13, 2011). The Supreme Court denied certification. State v.
Blank, 208 N.J. 339 (2011). We affirmed the denial of defendant's first petition
for PCR, which alleged ineffective assistance of counsel. State v. Blank, A-
4717-12T4 (App. Div. Nov. 20, 2014). The Supreme Court again denied
certification. State v. Blank, 221 N.J. 287 (2015).
Defendant thereafter filed a second PCR petition, which is the matter
before us. Defendant now contends that the prosecutor withheld allegedly
exculpatory evidence in the form of a hospital toxicology report that showed
cocaine in defendant's blood. Defendant claims that withholding this evidence
deprived him the opportunity to mount an intoxication or diminished capacity
defense. The PCR court wrote a letter to defendant explaining that it would treat
the motion as a motion for a new trial based on newly discovered evidence under
Rule 3:20-1, noting that a newly discovered toxicology report fell outside the
scope of post-conviction relief. The court denied defendant's claim for relief
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after applying the three-part test for newly discovered evidence set forth in State
v. Carter, 85 N.J. 300 (1981). The court reasoned that the toxicology report was
not "new" evidence but merely corroborated other evidence of defendant's
substance abuse. The court also found that defendant failed to establish that the
prosecutor was aware of the hospital toxicology report. Defendant thus failed
to establish that the State had the report in its possession and breached its duty
to turn it over in discovery.
Defendant raises the following contentions for our consideration:
POINT I
THE IMPROMPTU DISMISSAL OF DEFENDANT'S
CARTER AND BRADY CLAIMS AT THE
PLEADING STAGE WAS ERRONEOUS, AS
DEFENDANT'S PETITION COMPLIED WITH
PROCEDURAL/TIMELINESS REQUIREMENTS
AND HAD PRIMA FACIE MERIT
POINT II
THE ADJUDICATIVE PROCESS EMPLOYED WAS
FUNDAMENTALLY UNFAIR, AS DEFENDANT
LACKED AN ASSIGNED ATTORNEY AND HAD
NO OPPORTUNITY TO ENGAGE IN FACTUAL
SUBSTANTIATION, BRIEFING, AND ORAL
ARGUMENT
II.
Rule 3:22 generally explains the procedures for handling PCR petitions.
The Rules are silent, however, with respect to whether and in what
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circumstances a defendant is entitled to oral argument. In State v. Flores we
stated:
Initially, we find nothing in R. 3:22-1 et seq. requiring
that a hearing be conducted on a post-conviction relief
petition. Specifically, our court rules are barren of any
provision mandating that oral argument be heard
whenever a petition is filed. Instead, R. 3:22-10 states
that "[a] defendant in custody may be present in court"
in the exercise of the judge's discretion and is "entitled
to be present when oral testimony is adduced on a
material issue of fact within his personal knowledge."
In the context of the facts present here, we perceive no
abuse of the trial court's discretion in disposing of
defendant's petition on the papers submitted. We
emphasize that resolution of the issues raised by
defendant did not require the taking of oral testimony.
While we do not doubt that it was within the power of
the court to require oral argument, we discern no
statutory or procedural provision compelling it to adopt
this course. See R. 3:22-11.
[228 N.J. Super. 586, 589–90 (App. Div. 1988)
(alteration in original).]
In State v. Mayron, we re-affirmed that the decision to grant or deny oral
argument rests within the discretion of the PCR court. 344 N.J. Super. 382, 386
(App. Div. 2001). We noted, however, that "there should be a significant
presumption in favor of oral argument. In light of what is at stake for a
defendant, a safeguard designed to ensure that a defendant was not unjustly
convicted should be provided in a meaningful manner." Id. at 387–88. We
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identified a list of circumstances a PCR court should consider in exercising its
discretion, including
the apparent merits and complexity of the issues raised,
whether the petition is an initial application,[1] whether
argument of counsel will add to the written positions
that have been submitted, and in general, whether the
goals and purposes of the post-conviction procedure are
furthered by oral argument.
[Id. at 387]
We remanded for oral argument on the defendant's petition. Id. at 388.
We did not retain jurisdiction. Ibid.In State v. Parker, our Supreme Court provided additional guidance on
when a request for oral argument should granted. 212 N.J. 269 (2012). The
defendant in that case was charged with murder after repeatedly stabbing the
victim and pled guilty to aggravated manslaughter. Id. at 273–74. He did not
file a direct appeal but later filed a petition for PCR claiming ineffective
assistance of counsel. Id. at 275. The PCR court reviewed the papers and denied
the defendant's petition without convening an oral argument. On appeal, we
affirmed the denial in an unpublished opinion, noting that the decision to grant
1
We note that the list of relevant considerations set forth in Mayron suggests
that oral argument could be appropriate in a second or subsequent PCR petition.
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oral argument is discretionary and there was no basis upon which to second-
guess the PCR court's exercise of that discretion. Id. at 276–77.
The Supreme Court, noting it was "unable to agree fully with either
party['s contention that oral argument should be granted as of right or should
rest soundly within the discretion of the PCR court,]" remanded for the PCR
court to convene oral argument. Id. at 278. The Court explained that, "[w]hile
we decline to hold as a matter of law that each defendant has a right to present
oral argument to the trial judge in support of a petition for post-conviction relief,
we are also satisfied that this defendant was entitled to oral argument, and we
thus reverse and remand[.]" Id. at 278. The Court recognized that PCR judges
have discretion in weighing the Mayron factors but stressed that the
considerations "should be approached with the view that oral argument should
be granted." Id. at 282.
Importantly for purposes of the present appeal, the Court added that if the
PCR judge determines the arguments presented in the papers do not warrant oral
argument, "the judge should provide a statement of reasons that is tailored to the
particular application, stating why the judge considers oral argument
unnecessary." Id. at 282–83. As in Mayron, the Court in Parker ordered a
remand for oral argument and did not retain jurisdiction. Id. at 284.
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In the matter before us, the PCR court did not provide a statement of
reasons for denying defendant's request for oral argument. Indeed, the record
fails to indicate that the PCR court even considered that request. We cannot
give deference to the PCR court's exercise of discretion where the record does
not show that such discretion was exercised.
It may well be true in this case that nothing that might be said at oral
argument would change the result. It is not our place, however, to draw that
conclusion on our own initiative. The lesson we glean from Parker and Mayron
is that a reviewing court should not assume that oral argument would be a
perfunctory ritual. Rather, the decision whether to grant or deny a request for
oral argument must be made by the PCR court on a case-by-case basis. And, if
the PCR court denies the request, it should supply a statement of reasons
explaining its determination.
In this instance, the problem is compounded by the State's failure to
acknowledge this procedural issue in its response brief. We can appreciate that
the PCR court's failure to consider defendant's request for oral argument may
have been an unintentional oversight. The court ruled on the papers and may
have missed the request for oral argument in the spate of filed documents. The
State on appeal, however, was put on notice of the issue by defendant's
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unambiguous point heading, and yet ignored it. We can only presume the State
was at a loss to explain and justify the PCR court's tacit decision to deny oral
argument.
By ignoring an issue that was clearly raised on appeal, we deem the State
to have waived making arguments such as, for example, this matter should not
be deemed to be an appeal from a denial of PCR because the court treated it as
a motion for a new trial based on newly discovered evidence. See note 1, supra.
We recognize it is conceivable that cogent arguments might have been presented
to explain why defendant is not entitled to an oral argument. But again, it is not
our place to speculate on what those arguments might be, much less to decide
them as if we were exercising original jurisdiction.
III.
We reject defendant's contention that he should have been provided
counsel to assist with his second petition for PCR. Rule 3:22-6 addresses the
assignment of counsel for subsequent PCR petitions and provides that "the
matter shall be assigned to the Office of the Public Defender only upon
application therefor and showing of good cause." R. 3:22-6(b). The record
before us shows that defendant did not apply for a public defender in accordance
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with Rule 3:22-6(b). Rather, defendant only made a request for representation
in his PCR petition.
IV.
We remand and instruct the PCR court to convene oral argument within
sixty days. We leave to the discretion of the court whether to conduct the oral
argument virtually by videoconferencing or by telephone.
Because this matter must be remanded for oral argument, we do not
address defendant's substantive contention that he is entitled to a new trial and
we offer no opinion on the merits of that contention.
Vacated and remanded for further proceedings consistent with the
opinion. We do not retain jurisdiction.
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