On appeal from the Superior Court of New Jersey, Law Division, Sussex County.
Seidman, Michels and Furman. The opinion of the court was delivered by Michels, J.A.D.
Defendant Joseph Fletcher appeals from an order of the Law Division denying his petition for post-conviction relief wherein he sought leave to appeal nunc pro tunc his convictions for rape and armed robbery. The critical issue posed on this appeal is whether the trial judge's failure to advise defendant, after imposing sentence, of his right to appeal, and, if indigent, of his right to appeal as an indigent, both required by R. 3:21-4(f), constitutes sufficient justification to permit defendant to appeal out of time even though he may have been advised of his right to do so by his trial attorney.
In April 1977 defendant was found guilty by a jury of raping his grandmother. In June 1977 his motion for a new trial was denied, and he was sentenced to State Prison for 8 to 12 years. After imposing sentence, the trial judge advised defendant only of his right to appeal within 45 days. He did not advise defendant of his right to appeal as an indigent even though defendant was represented at trial by an attorney from the Public Defender's office. Thereafter, in July 1977 defendant pleaded guilty to unrelated armed robberies and was sentenced to concurrent State Prison terms aggregating 8 to 12 years. These sentences were to be served concurrently with the sentence imposed upon defendant for rape. The trial judge did not advise defendant of his right to appeal following the imposition of these sentences nor did he advise defendant of his right to be represented on the appeal by the Public Defender, if indigent.
In September 1979 defendant filed a petition for post-conviction relief, seeking leave to appeal nunc pro tunc from these convictions. Defendant claimed that his trial attorney failed to inform him of his right to appeal or of his right to counsel to prosecute an appeal. At the conclusion of the post-conviction relief hearing, the trial judge denied defendant's petition for the following reasons:
I am satisfied beyond any question of a doubt that Mr. Fletcher was advised of his right to appeal both the conviction after a trial by jury of the rape of his grandmother, and that he was aware of his right to appeal the sentence of the Court on his voluntary plea to the subsequent charge. I have no reason whatsoever to even question the evidence under oath of [defense counsel] that she not only advised Mr. Fletcher of his right to appeal, but urged his appeal . . .
I am satisfied beyond any question of a doubt that Mr. Fletcher was advised by the Court of his right to appeal and he was urged by [defense counsel] to appeal and that, perhaps for reasons of his own conscience at the time, which is consistent with his statements made to Chief Duke that he did not wish to take advantage of his right to appeal, that his contention at the present time is nothing more than afterthought. For all of the foregoing reasons, this Court will dismiss the application of Mr. Fletcher.
Defendant appeals, contending that the trial judge's failure to inform him of his right to appeal and to the assistance of counsel in accordance with R. 3:21-4(f) requires that he be permitted to appeal nunc pro tunc. Even though defendant did not make this argument at the hearing below, we have decided to consider the issue because the omission was "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. See State v. LaPorte , 62 N.J. 312, 318 (1973); State v. Macon , 57 N.J. 325, 336 (1971); State v. Hock , 54 N.J. 526, 538 (1969).
The application rule, R. 3:21-4(f), provides:
After imposing sentence, whether following the defendant's plea of guilty or a finding of guilty after trial, the court shall advise the defendant of his right to appeal and, if he is indigent, of his right to appeal as an indigent.
This rule is designed to insure that a convicted defendant is advised precisely of his right to appeal and, if indigent, of his right to appeal as an indigent. The rule places the burden of advising a defendant of these rights squarely upon the trial judge. It is also intended to produce a record establishing that after the imposition of sentence defendant was advised of these rights, so that there will be no question as to whether a defendant was apprised of these substantial rights. Strict compliance with the rule by the trial judge will tend to discourage untimely appeals as well as post-conviction ...