NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3396-14T3
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
June 20, 2016
v.
APPELLATE DIVISION
DONNELL JONES,
Defendant-Appellant.
_____________________________________________________
Submitted May 3, 2016 – Decided June 20, 2016
Before Judges Fisher, Espinosa and
Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment Nos. 12-08-1286; 12-08-1290.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie Piderit,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
Defendant appeals the denial of his post-conviction relief
(PCR) petition, which asserted a denial of the effective
assistance of counsel because his attorney failed to file a
direct appeal from the judgment of conviction. Because the PCR
judge required — and found absent — proof that defendant was
prejudiced by his counsel's failure to file a direct appeal — in
essence drawing her own conclusion as to whether an appeal would
have been successful — we reverse. Defendant's sworn statement
that he directed his attorney to file an appeal was undisputed
and, in that circumstance, prejudice is presumed. Roe v. Flores-
Ortega, 528 U.S. 470, 484, 120 S. Ct. 1029, 1038-39, 145 L. Ed.
2d 985, 999-1000 (2000). Consequently, defendant is entitled to
the restoration of his right to file a direct appeal, ibid.,
which we now permit.
I
On March 14, 2013, defendant pleaded guilty to first-degree
armed robbery, N.J.S.A. 2C:15-1, and second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-4(a). On May 10, 2013,
defendant was sentenced to a fifteen-year prison term subject to
an eighty-five percent period of parole ineligibility pursuant
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. No
appeal was filed on his behalf.
On March 7, 2014, defendant filed a pro se PCR petition,
alleging he was deprived of the effective assistance of counsel.
Counsel was appointed and a brief filed on defendant's behalf.
Defendant argued trial counsel failed to raise a number of
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potential mitigating factors at sentencing, emphasizing counsel
made only the following statement on his behalf at sentencing:
This is a negotiated plea agreement. And
we're simply asking the [c]ourt to honor the
plea agreement and sentence [defendant]
accordingly.
Defendant also argued he was deprived of his Miranda1 rights when
interrogated by police. And he claims counsel failed to file an
appeal of the judgment of conviction. In support of this last
assertion, defendant filed a certification that asserted he
"told [his] attorney [he] wanted to file an appeal but he never
filed it."
On January 29, 2015, after hearing counsel's argument, the
PCR judge rejected defendant's contentions. Without conducting
an evidentiary hearing, the judge analyzed the urged mitigating
factors and held they would not have been applied2 and, in any
event, they were strongly outweighed by the aggravating factors.
And the judge found no merit in the Miranda contention.
The judge then rejected the argument that defendant was
deprived of the effective assistance of counsel because a direct
appeal was not filed. Without questioning defendant's undisputed
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2
The same judge presided at the plea, sentencing, and PCR
proceedings.
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assertion that he directed his attorney to file an appeal, the
judge concluded that defendant failed to present "any claim that
would have been meritorious on appeal." In appealing, defendant
argues the judge erred in her disposition of the ineffectiveness
claim regarding counsel's failure to file an appeal.
II
In determining whether counsel was constitutionally
ineffective in failing to file a notice of appeal, the PCR judge
concluded defendant was required to demonstrate the presence of
both prongs of the test enunciated in Strickland v. Washington,
466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed.
2d 674, 693, 698 (1984), i.e., that counsel's performance fell
below an objective standard of reasonableness (the first prong),
and that counsel's deficient performance prejudiced the
defendant (the second prong). See also State v. Fritz, 105 N.J.
42, 58 (1987).3 In defining the reach of the Sixth Amendment, the
Supreme Court has held that "a lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts
in a manner that is professionally unreasonable." Flores-Ortega,
3
For purposes of the state constitutional guarantee of the right
to counsel, N.J. Const. art. I, ¶ 10, the Fritz Court also
expressed its adherence to the Supreme Court's recognition in
United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039,
2046, 80 L. Ed. 2d 657, 667 (1984), of a presumption of
prejudice in some circumstances. See Fritz, supra, 105 N.J. at
53, 58.
4 A-3396-14T3
supra, 528 U.S. at 477, 120 S. Ct. at 1035, 145 L. Ed. 2d at
995. Such a failure cannot be labeled a strategic decision;
"filing a notice of appeal is a purely ministerial task, and the
failure to file reflects inattention to the defendant's wishes."
Ibid.
In denying relief, the PCR judge concentrated on the second
prong,4 concluding that defendant failed to show prejudice
because he did not present any claim that, in the judge's view,
would have been meritorious on appeal. The judge further
observed that defendant failed to assert he was innocent of the
charges.5
To be sure, most PCR petitions require consideration of the
facts asserted in support of both prongs without a presumption
as to either. In many cases, an attorney's error "even if
professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on
the judgment." Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct.
366, 369, 88 L. Ed. 2d 203, 209 (1985). But the error here did
4
The State did not dispute defendant's contention that he
directed his attorney to file an appeal, and the judge did not
express doubt about defendant's undisputed factual assertion.
We, therefore, conclude that the first prong was met.
5
The judge stated in her oral decision the following: "As to
trial counsel's failure to file an appeal, I did not read any
claim of innocence in [his] brief."
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not lead "to a judicial proceeding of disputed reliability"; it
led to a "forfeiture of the proceeding itself." Flores-Ortega,
supra, 528 U.S. at 483, 120 S. Ct. at 1038, 145 L. Ed. 2d at
999. This circumstance "demands a presumption of prejudice."
Ibid.; see also Peguero v. United States, 526 U.S. 23, 28, 119
S. Ct. 961, 965, 143 L. Ed. 2d 18, 24 (1999); Hodge v. United
States, 554 F.3d 372, 380 (3d Cir. 2009). Consequently, the
Flores-Ortega Court concluded that a defendant who has requested
an appeal is not required to show he "might have prevailed" in
his forfeited appeal, 528 U.S. at 484, 120 S. Ct. at 1038, 145
L. Ed. 2d at 999, and held that:
when counsel's constitutionally deficient
performance deprives a defendant of an
appeal that he otherwise would have taken,
the defendant has made out a successful
ineffective assistance of counsel entitling
him to an appeal.
[Id. at 484, 120 S. Ct. at 1039, 145 L. Ed.
2d at 1000.]
In short, it is only when a defendant has not conveyed his
wishes regarding the filing of an appeal that we consider
"'whether counsel's assistance was reasonable considering all
the circumstances,'" id. at 478, 120 S. Ct. at 1035, 145 L. Ed.
2d at 995 (quoting Strickland, supra, 466 U.S. at 688, 104 S.
Ct. at 2065, 80 L. Ed. 2d at 694), and whether counsel's
deficient performance "actually cause[d] the forfeiture of the
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defendant's appeal," id. at 484, 120 S. Ct. at 1038, 145 L. Ed.
2d at 999. Because the prosecution did not dispute that
defendant directed his attorney to file an appeal and because
the PCR judge did not apply Flores-Ortega's presumption of
prejudice in light of that undisputed fact, we reverse.
III
Although we believe Flores-Ortega's presumption of
prejudice when applied here ends our inquiry, the Court's
additional comments may have clouded the matter. The Court, for
example, stated that "whether a given defendant has made the
requisite showing will turn on the facts of a particular case,"
and observed that evidence of "nonfrivolous grounds for appeal
or that the defendant in question promptly expressed a desire to
appeal will often be highly relevant in making this
determination." Id. at 485, 120 S. Ct. at 1039, 145 L. Ed. 2d at
1000 (emphasis added).
These comments arguably suggest that some defendants may be
required to demonstrate "nonfrivolous grounds for appeal" to
succeed on an ineffectiveness claim. By the same token, even as
it repeated the phrase "nonfrivolous grounds for appeal"
throughout its continued discussion, the Court in Flores-Ortega,
supra, 528 U.S. at 486, 120 S. Ct. at 1039-40, 145 L. Ed. 2d at
1001, emphasized its earlier holding in Rodriquez v. United
7 A-3396-14T3
States, 395 U.S. 327, 330, 89 S. Ct. 1715, 1717, 23 L. Ed. 2d
340, 344 (1969), which recognized that defendants whose
attorneys have frustrated their right to appeal "should be
treated exactly like any other appellants" and "not be given an
additional hurdle to clear just because their rights were
violated at some earlier stage in the proceedings." Yet, in
downplaying the significance of whether a defendant has
presented "nonfrivolous grounds for appeal," the Court explained
that it would be "unfair to require an indigent, perhaps pro se,
defendant to demonstrate that his hypothetical appeal might have
had merit before any advocate has ever reviewed the record . . .
in search of potentially meritorious grounds for appeal," while
simultaneously reiterating its holding that the defendant need
only "demonstrate that, but for counsel's deficient conduct, he
would have appealed." Flores-Ortega, supra, 528 U.S. at 486, 120
S. Ct. at 1039-40, 145 L. Ed. 2d at 1001.
We cannot ignore the fact that the Court's additional
comments could be interpreted as shifting from "a presumption of
prejudice" in all cases where a defendant has requested but not
obtained a direct appeal to, on the other hand, requiring an
inquiry into the merits of the forfeited appeal if a defendant
is not "indigent" or "perhaps" not "pro se." Ibid. Unlike the
defendant referred to in this part of the Flores-Ortega Court's
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opinion, defendant here only briefly represented himself; once
his PCR petition was filed, an attorney was appointed and given
the opportunity to review and supplement the record — the things
that the Flores-Ortega Court found lacking in most cases when it
adopted its presumption of prejudice standard.
All this generates concern for us about whether it is
enough for a defendant, who has been given the assistance of PCR
counsel, to rely solely on the undisputed fact that he requested
the filing of a direct appeal that was not instituted.
Ultimately, however, we view the Court's added explanation as
bearing on a situation not present here; the Flores-Ortega
Court's additional language should be viewed as the Court's
response to lower federal courts that had held it per se
unreasonable for an attorney not to file a direct appeal unless
it could be shown the defendant instructed the attorney not to
appeal. See Hodge, supra, 554 F.3d at 379. As suggested by
Hodge, consideration of matters such as whether the defendant
was "indigent, perhaps pro se," Flores-Ortega, supra, 528 U.S.
at 486, 120 S. Ct. at 1040, 145 L. Ed. 2d at 1001, and whether
the defendant could present "nonfrivolous grounds for appeal,"
id. at 485, 120 S. Ct. at 1039, 145 L. Ed. 2d at 1000, are
considerations for cases "where the defendant neither instructs
counsel to file an appeal nor asks that an appeal not be taken,"
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id. at 478, 120 S. Ct. at 1035, 145 L. Ed. 2d at 995. See Hodge,
supra, 554 F.3d at 379.
Because the prosecution did not dispute defendant's sworn
statement that he told his attorney to file an appeal, we
conclude that the Court's additional discussion about whether a
defendant may, at times, need to show he was indigent, or pro
se, or possessed "nonfrivolous grounds for appeal," is
inapplicable here.
IV
We would also add that Flores-Ortega is limited to the
application of the Sixth Amendment to the matter at hand; that
decision does not preclude our courts from determining that the
state constitutional right to counsel, N.J. Const. art. I, ¶ 10,
provides greater rights or a more liberal allowance of post-
conviction relief in similar circumstances. We would note,
however, that our state jurisprudence has closely adhered to the
Sixth Amendment's contours. See Fritz, supra, 105 N.J. at 58
(concluding that "[e]ven if we are not constitutionally
compelled to adopt the Strickland-Cronic test, the development
of the law in this area impels" recognition of "the soundness
and efficacy of both the substance and formulation of this
federal Constitutional standard in defining our own State
Constitutional guarantee of effective assistance of counsel").
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In short, there is no existing evidence that our Supreme
Court would do other than follow Flores-Ortega.6 And defendant
has not argued that an approach more liberal than that described
in Flores-Ortega should be applied to the extent his PCR
petition rested on state constitutional grounds. Despite the
uncertainty arising from the Flores-Ortega Court's comments
about whether a defendant must present "nonfrivolous grounds for
appeal" in these or similar circumstances, we ultimately rest
our decision on the Court's clear and broad holding that
prejudice is presumed when counsel has failed to file an appeal
requested by a defendant; in our view, Flores-Ortega holds that
the Sixth Amendment alone demands that the defendant receive the
appeal to which he was entitled but which was forfeited because
6
We are mindful the Supreme Court recently granted certification
to consider the ineffectiveness standard in a similar setting.
See State v. Carson, __ N.J. __ (2016). Certainly, state courts
cannot apply a more constricted standard than that set forth in
Flores-Ortega; the nation's highest court establishes "the floor
of constitutional protection." State v. Hempele, 120 N.J. 182,
197 (1990). A state court, however, may apply a more expansive
view when interpreting its own constitution and, when it does,
"manifest[s] no disrespect for" the United States Supreme Court
"but merely honor[s] our 'obligation to uphold [our] own
constitution.'" Ibid. (quoting Justice Pollock's concurring
opinion in State v. Lund, 119 N.J. 35, 53 (1990)). Because our
Supreme Court will soon consider these issues, because the issue
was not briefed, and because its resolution is not necessary for
today's decision, we withhold consideration of whether our state
constitution imposes a per se presumption of prejudice when an
appeal is not filed on behalf of a defendant prosecuted in our
courts.
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his trial attorney failed to heed his direction. 528 U.S. at
484, 120 S. Ct. at 1039, 145 L. Ed. 2d at 1000.
V
Because the PCR judge did not apply the principles
enunciated in Flores-Ortega, we reverse the denial of post-
conviction relief7 and exercise original jurisdiction in
permitting defendant the right to file a notice of appeal,
seeking review of the judgment of conviction, within forty-five
days from today's date.
7
Even if Flores-Ortega could be interpreted as imposing on
defendant a burden of presenting "nonfrivolous grounds for
appeal," this is not the standard the PCR judge applied. The
judge instead found defendant's arguments lacking in merit; an
argument that is without merit is not necessarily a frivolous
argument. Perhaps this circumstance alone demonstrates that a
per se rule of prejudice is the more salutary approach. In that
case, the direct appeal would be permitted and this court would
consider that appeal on its merits, rather than adding a layer
or two of litigation that would require the trial judge's
determination of whether a defendant was "indigent, perhaps pro
se" and, if so, whether he possessed "nonfrivolous grounds for
appeal," and then an appeal for our review of those threshold
determinations. Only then, if the defendant's presentation
passed muster, would the right to appeal the judgment of
conviction be restored. We fail to see how the fair and
efficient administration of justice would be furthered if we
were to insist on these threshold determinations before simply
allowing the forfeited appeal to be filed and considered on its
merits. And we would lastly observe that even if the merit of
the forfeited appeal is to be considered prior to granting post-
conviction relief, in this particular case we would remand for
further development of the issues defendant would pursue on
direct appeal since the record does not permit a full
understanding of defendant's contentions.
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