This matter is before me on a petition by defendant Clarence Allen for post-conviction relief pursuant to R.R. 3:10A. The petitioner was convicted of the crime of larceny in the Municipal Court of West Orange and on September 14, 1967 sentenced to serve a term of six months in the Essex County Penitentiary. He was represented by assigned counsel in that court.
In his initial petition defendant states in almost unintelligible language the facts upon which he bases his claim for relief.
"1. Co-defendent did not include me.
2. Complainee did not include me.
3. Circumstantial evidence which was beyond a believe doubt which is a violation of New Jersey State Statues."
As to these grounds, the court agrees with the State that they are the subject matter of an appeal and do not have the effect of depriving the defendant of fundamental fairness. Post-conviction relief proceedings may not be used as a substitute for an appeal. R.R. 3:10 A -3; State v. Smith, 43 N.J. 67, 74 (1964).
However, defendant states a more serious ground in a supplemental petition. He asserts that the judgment of conviction should be set aside because he neither was advised by his attorney nor by the court of his right to appeal from the judgment of conviction. The gravamen of this complaint essentially, is that he was denied the effective assistance of counsel in two respects. He contends that his counsel's failure to advise him of his right to appeal deprived him of the effective representation of trial counsel and moreover, of the Sixth Amendment's right to the assistance of counsel on appeal as established by the United States Supreme Court in Douglas v. People of State of California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2 d 811 (1963).
With respect to the propriety of the court hearing this matter on an application for post-conviction relief, the State argues that this matter is the subject matter of an appeal. R.R. 3:10 A -3; State v. Smith, supra. However, in cases such as this, where a defendant claims he did not know of his right to appeal and the time for filing an appeal has expired, the State's position would forever bar the defendant from obtaining judicial relief. See R.R. 3:22-4(f) and comment 2, Proposed Revision of the Rules Governing the Courts of New Jersey 236 (1966). If this defendant is entitled to relief, the denial of such relief upon the ground urged by the State would be contrary to fundamental justice. R.R. 3:10 A -5. Therefore, the court will proceed to determine the matter on its merits.
The State concedes that neither counsel nor the trial court advised defendant of his right to appeal at any time during the ten-day period within which to perfect an appeal after the imposition of sentence, R.R. 1:3-1(c), and that the reason counsel failed to do so was that after considering the entire case, he determined that any of the alleged grounds for appeal were without merit. However, the State contends that our State and Federal Constitutions do not require that a defendant be informed of his right to appeal and that counsel fulfills his obligation to his client if he studies the trial record and determines there are no appealable grounds. To hold otherwise would impose an impractical task on the judiciary, for such defendant would appeal from a judgment of conviction without regard to the merit of the claim.
The point raised by petitioner is a novel one in this jurisdiction. However, there are several federal ...