STATE OF NEW JERSEY VS. FRANKLIN D. NICOLOUDAKIS(07-08-0842, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1276-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANKLIN D. NICOLOUDAKIS,
Defendant-Appellant.
______________________________
Argued May 17, 2017 – Decided June 29, 2017
Before Judges Accurso and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
07-08-0842.
Frank D. Nicoloudakis, appellant, argued the
cause pro se.
Olivia M. Mills, Assistant Prosecutor, argued
the cause for respondent (Angelo J. Onofri,
Mercer County Prosecutor, attorney; Laura
Sunyak, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant appeals the September 29, 2014 order denying his
motion for reconsideration of the August 14, 2014 order dismissing
his Post-Conviction Relief (PCR) petition without prejudice. For
the reasons that follow, we reverse.
Defendant pled guilty to fourth-degree stalking, N.J.S.A.
2C:12-10b, for which he was sentenced on March 31, 2008 to a five-
year term of probation. Defendant filed a direct appeal, and we
affirmed in an unpublished opinion. State v. Nicoloudakis, No.
A-0383-08 (App. Div. Aug. 16, 2010).
On the last day allowed to meet the five-year limitation
period for filing a PCR petition, see Rule 3:22-12(a)(1), defendant
filed his PCR petition on April 1, 2013.1 On July 20, 2013,
defendant filed an amended petition. He filed both the original
and amended petitions as a pro se party.
The criminal case management office sent three letters to
defendant dated August 20, 2013, October 17, 2013, and January 8,
2014. Defendant does not dispute that he received these letters.
We have not been provided with the letters in the appellate record.
From the information we have, which defendant also does not
dispute, the letters directed him to inform the court whether he
wished to be assigned a public defender, whether he obtained
1
The five-year anniversary, March 31, 2013, fell on a Sunday,
as a result of which his filing the next day was timely.
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private counsel, or whether he would proceed pro se. There is no
indication in the record before us that the letters informed
defendant of any particular consequence that would flow from his
failure to respond.
Defendant did not respond to any of the letters. He contends
that his reason for not responding was that he believed "Criminal
Case Management" was an arm of the prosecutor's office, not of the
court, and he had no obligation to respond to a communication
coming from the prosecutor's office. Whether or not that
contention is credible is not dispositive of this appeal.
On August 14, 2014, the trial court issued a sua sponte order
dismissing defendant's petition "without prejudice due to
Defendant's failure to either submit an affidavit of indigency or
inform the Court as to whether or not he will proceed pro se or
with private counsel." An accompanying letter by the court set
forth a statement of reasons as follows:
This Court is in receipt of your post-
conviction relief application filed on July
20, 2013. Pursuant to R. 3:22-6(a) ". . . a
defendant who wants to be represented by the
Office of the Public Defender may annex
thereto a sworn statement alleging indigency
in the form prescribed by the Administrative
Director of the Courts. . ." As this is your
first post-conviction relief application, you
are entitled to assignment of counsel. In
letters dated August 20, 2013; October 17,
2013 and January 8, 2014, you were directed
to inform the Court as to whether or not you
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wished to be assigned a public defender
however you still have not submitted an
affidavit of indigency nor in the alternative,
any documents stating that you have obtained
private counsel or will be proceeding pro se.
Therefore, this post-conviction relief
application is dismissed without prejudice.
Defendant filed a timely motion for reconsideration on
September 3, 2014, accompanied by a brief. He filed these
documents in his pro se capacity. He expressed his regrets for
not responding to the letters from criminal case management and
explained his reason, as we have set forth above. He also stated
that "the requests for designation of representation never set a
time limit for reply or indicated that without a response, the
entire petition and opportunity for having the issues reviewed
would be summarily dismissed." He expressed concern that, because
he was now beyond the five-year limitation period, refiling might
not be a viable alternative.
Defendant contended that the exhibits he attached, which
included the first page of his original and amended petitions,
identified the fact that he was acting pro se. He contended that
these designations constituted an unequivocal assertion on his
part that he was proceeding pro se and "[t]here was no legitimate
reason for the office staff [in the criminal case management
office] to ignore those declarations." He concluded that the
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court "either did not consider, or failed to appreciate the
significance of probative, competent evidence." He requested that
the court reverse its decision of August 14, 2014, and reinstate
his PCR petition.
The court issued an order on September 29, 2014, denying
defendant's motion "because there is not a sufficient showing of
plainly incorrect reasoning, a failure to consider evidence or new
information to be considered pursuant to Rule 4:49-2." In the
judge's accompanying letter stating reasons for denial of the
motion, he stated: "Initially, when a defendant petitions for
Post-Conviction Relief pro se, the defendant subsequently requests
for an attorney, or responds to inquiries stating that they will
continue pro se." Relying on State v. Figueroa, 186 N.J. 589(2006), the judge stated that defendant's failure to respond to
the letters did not constitute a clear and unequivocal request to
represent himself. The judge concluded that because this was
defendant's first PCR petition, he was "free to refile at [his]
earliest convenience and the Court will consider all circumstances
regarding your filing date."
In Figueroa, a capital murder prosecution, the trial court
denied the defendant's motion for self-representation. Id. at
592. He was convicted of non-capital murder and other offenses.
Ibid. This court reversed, concluding that the defendant had been
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denied his right of self-representation. Ibid. The Supreme Court
affirmed and reiterated the probing inquiry that must be made of
a defendant requesting the right of self-representation at a trial,
and particularly, differentiating between complete self-
representation (for which there is a constitutional right) and
hybrid representation (for which there is no constitutional right
but is discretionary with the court). Id. at 593-97. Only through
such a probing inquiry, can a proper decision be made as to whether
the assertion of the right to self-representation is knowing,
voluntary, and unequivocal. Ibid.The circumstances here were quite different. A PCR petitioner
"who wants to be represented by the Office of the Public Defender
may annex [to his or her petition] a sworn statement alleging
indigency in the form prescribed by the Administrative Director
of the Courts, which form shall be furnished to the defendant by
the criminal division manager's office." R. 3:22-6(a). There is
no indication in this record that defendant was ever furnished
with such a form. He was never directed to come to court for an
in-person inquiry by a judge on the subject. Defendant has
consistently maintained that he does not want to be represented
by the public defender. Whatever doubt might have been caused by
his non-response to the letters was clarified in defendant's
reconsideration motion.
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Rule 4:49-2, authorizing reconsideration motions, requires a
showing that the court's decision was based on plainly incorrect
reasoning, the court failed to consider evidence, or there is a
good reason for it to consider new information submitted with the
reconsideration motion. Cummings v. Bahr, 295 N.J. Super. 374,
384-85 (App. Div. 1996). The rule is especially significant and
useful where the initial order was issued without having been
litigated or argued, as in this case. Calcaterra v. Calcaterra,
206 N.J. Super. 398, 403-04 (App. Div. 1986).
Relying on Palombi v. Palombi, 414 N.J. Super. 274, 288 (App.
Div. 2010), the State argues that reconsideration "is not
appropriate merely because a litigant is dissatisfied with a
decision of the court or wishes to reargue a motion." However,
in this case, there was no motion and there was no argument.
Defendant's reconsideration motion was made in response to a sua
sponte order issued without prior notice or opportunity to be
heard in writing or orally. Defendant's reconsideration motion
was his first opportunity to state his position as to why his PCR
petition should not be dismissed on the sole ground that he did
not advise the court of his wish to proceed pro se. Having made
his position clearly known in his reconsideration motion, the sole
basis underpinning the dismissal order no longer existed. Because
of the lack of prior notice of the potential dismissal, there was
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indeed good reason for the court to consider the new information
submitted. In these circumstances, due process requires as much.
Failure to do so constituted an abuse of discretion.
We note that the rule permitting PCR dismissal without
prejudice and allowing refiling within ninety days, even beyond
the five-year limitation period, applies only when the dismissal
is on the basis that the petition is not cognizable under Rule
3:22-2, or fails to contain the necessary contents or verification
required by Rule 3:22-8. R. 3:22-12(a)(4). Neither of those
circumstances provided a basis for the dismissal order in this
case. Defendant's concern that refiling within ninety days of the
dismissal order, but outside the five-year limitation period,
might not be viable was not unjustified. Rule 3:22-12(a)(4) does
not appear to apply, and the judge's letter to defendant stating
that he was free to refile "at his earliest convenience and the
Court will consider all circumstances regarding your refiling
date" was not an indication of an automatic right to refile.
One final note. In his appeal, defendant has contended that
the judge dismissed his petition and denied his reconsideration
motion based on personal animus arising out of some previous
interactions between defendant and the judge in unrelated matters.
The record contains no evidence to support this contention, which
we deem to be unfounded and purely speculative. This contention
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plays no part in our decision. Further, we have no view as to the
merits of defendant's PCR petition. Indeed, the record before us
contains nothing more than the first page of his original and
amended petitions, and we are not even aware of the grounds for
relief he asserts.
The September 29, 2014 order denying defendant's
reconsideration motion is reversed. The August 14, 2014 order
dismissing defendant's PCR petition is vacated. The PCR petition
is reinstated.
Reversed and remanded for further proceedings. We do not
retain jurisdiction.
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