On certification to the Superior Court, Appellate Division.
This appeal deals with the asserted inconsistency between Rule 3:22-6, the post-conviction relief rule (requiring counsel to advance any grounds on a PCR petition insisted upon by the defendant, regardless of whether counsel considers such grounds to have merit), and Rule of Professional Conduct ("RPC") 3.1 (prohibiting a lawyer from bringing or defending a frivolous proceeding and/or from asserting or controverting an issue in any proceeding, unless he or she knows or reasonably believes a non-frivolous basis exists for doing so).
Defendant, Dudley Rue, along with several co-defendants, was charged in Mercer County with first-degree murder, as well as with weapons and other charges. The charges stemmed from the alleged beating of Jeffrey Glanton on March 10, 1992, in Trenton. Glanton had been involved in an altercation with one of the co-defendants, Robert Dodson, who summoned Rue and the other co-defendants to the scene of the altercation to assist him. Ultimately, Glanton died of the injuries sustained in the beating.
Both before and during trial, several witnesses implicated Rue in the beating. During trial, Rue maintained that he had not participated in the beating, but rather remained in the vehicle in which he had traveled to the scene of the altercation, while all the other co-defendants participated in the beating of Glanton. No witnesses supported Glanton's version of events at trial, and the jury convicted him of the murder and weapons charges. He was sentenced to an aggregate custodial term of thirty years without parole.
Rue appealed. The Appellate Division affirmed his conviction. The Supreme Court denied his subsequent petition for certification. Thereafter, in 1998, Rue filed a pro se petition for post-conviction relief (PCR). In his supporting brief, he requested an evidentiary hearing on the issue of ineffective assistance of trial counsel. Specifically, he alleged that his trial counsel had failed to investigate and call his co-defendants and another witness to testify, who would have supported his version of the events.
Counsel was assigned pursuant to R. 3:22-6(a)(2). He filed a supplemental brief and appendix. In one section of his brief, assigned counsel advanced no argument in support of defendant's claims, but rather sought "clarification of the law in the situation in which PCR counsel believes the client's claims are legally meritless." In another section of the brief, he outlined the steps he had taken to investigate Rue's claim of ineffective assistance of counsel. He then addressed the merits of Rue's claims, pointing out all of their deficiencies and concluding that no meritorious issues existed on which to sustain Rue's petition.
At the subsequent PCR hearing, counsel reiterated his belief that Rue did not have a meritorious basis for his petition. The prosecutor offered little in addition, relying almost entirely on PCR counsel's arguments. The trial court denied relief, filing an opinion that made several references to PCR counsel's conclusions regarding the lack of merit of Rue's contentions.
Rue appealed. In an unpublished opinion, the Appellate Division reversed and remanded the matter for a new PCR hearing. The panel concluded that PCR counsel had not faithfully fulfilled his obligations under R. 3:22-6(d), and that instead of advancing Rue's claims, counsel had advanced the reasons for rejecting them.
The Supreme Court granted the State's petition for certification.
HELD: The post-conviction relief rule, which requires counsel to advance all grounds upon which the client insists, regardless of whether counsel considers them to be meritorious, and not RPC 3.1, which prohibits attorneys from advancing meritless claims, governs the performance of PCR counsel; if the standard of conduct imposed by the post-conviction rule is violated, a new PCR proceeding will be required.
1. Post-conviction relief, which is analogous to the federal writ of habeas corpus, is a safeguard to ensure that a defendant is not unfairly convicted and allows a defendant a final opportunity to raise constitutional errors that could not have been raised on direct appeal. (p. 16)
2. PCR counsel's conduct in dismantling each contention raised by Rue did not meet either the letter or the spirit underlying R. 3:22-6, which requires PCR counsel to advance any grounds insisted on by defendant, notwithstanding that counsel deems them without merit. (pp. 16-17)
3. The Court Rules are the equivalent of the New Jersey Rules of Professional Conduct in terms of weight of their authority - neither is entitled to primacy as a matter of law or practice, and they may require harmonization from time to time. (pp. 17-18)
4. To the extent that it can be read to suggest that PCR counsel has the option to bring to the PCR court's attention the meritlessness of the client's petition, instead of advancing the claim on the client's behalf, State v. Clark, 260 N.J. Super. 559 (App. Div. 1992), is inconsistent with R. 3:22-6(d) and thus is disapproved. (pp. 18-19)
5. For nearly forty years, and directly in the face of RPC 3.1, New Jersey's Rules have taken a unique position regarding PCR representation, which was motivated by the Court's view of the critical nature of faithful and robust representation of a defendant at a PCR proceeding. (pp. 19-24)
6. Although PCR counsel may choose to stand on his or her brief at the PCR hearing, and is not required to further engage in expository argument, he may not denigrate or dismiss the client's claims, negatively evaluate them, or render aid and support to the State's position. A trial court should never put PCR counsel in the position of having to assess the merits of his client's position. (p. 25)
7. Rue did not receive the representation guaranteed by the PCR rule because of counsel's characterization of each of his claims as meritless. Without such counsel, Rue's claims remain wholly unexplored. Thus, the judgment of the Appellate Division is affirmed and the matter is remanded for the assignment of counsel as if on a first PCR petition and for a new PCR hearing. The case should be assigned to a different trial court. (pp. 25-26)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE VERNIERO has filed a concurring opinion in which JUSTICE COLEMAN joins. Justice Verniero agrees with the Court's disposition based on the current text of Rule 3:22-6(d), but believes that the potential dilemma for PCR counsel posed by the Rule's apparent inconsistency with RPC 3.1 warrants further consideration of the rule in its current form. He believes that the Court should consider adopting procedures similar to those found at the federal level to enable defense counsel to discharge their obligations to their clients within the boundaries of the ethics rules.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, and JUDGE PRESSLER, temporarily assigned, join in JUSTICE LONG's opinion. JUSTICE VERNIERO has filed a separate concurring opinion in which JUSTICE COLEMAN joins.
The opinion of the court was delivered by: Long, J.
This appeal stems from the claim of defendant, Dudley Rue, that the lawyer assigned to represent him on his first post- conviction relief (PCR) petition essentially jettisoned his case by pointing out its deficiencies to the trial court and characterizing it as "without merit." He contends that his attorney's conduct violated Rule 3:22-6 which provides in relevant part: (1) on a first PCR petition, counsel should be assigned; (2) counsel may not withdraw on the ground of lack of merit of the petition; and (3) he or she "should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit." The State counters that, in underscoring the lack of merit in Rue's petition, his counsel abided by the terms of RPC 3.1, which enunciates a general standard of ethical behavior for lawyers and provides:
A lawyer shall not bring or defend a proceeding, nor assert or controvert an issue therein unless the lawyer knows or reasonably believes that there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
Alternatively, the State urges us to address what it perceives to be a disconnection between Rule 3:22-6 and RPC 3.1.
We hold that Rule 3:22-6, and not RPC 3.1, governs the performance of PCR counsel and that if the standard of conduct imposed by that rule is violated, a new PCR proceeding will be required.
Defendant, Dudley Rue, was charged in Mercer County Indictment, 92-07-0827-I, along with co-defendants Rory Bryson, Robert Dodson, Robert Williams, and Tyrone Williams, with first- degree murder in violation of N.J.S.A. 2C:11-3(a)(1)(2) and N.J.S.A. 2C:2-6 (count one); second degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39- 4(a) and N.J.S.A. 2C:2-6 (count two); third degree unlawful possession of a weapon without a permit in violation of N.J.S.A. 2C:39-5(b) (count three); and third degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:2-6 (count four).
Defendant was tried alone. At his trial, the State presented the following evidence. On March 10, 1992, at 3:30 p.m., Robert Dodson, a/k/a "Silk", had an altercation with Jeffrey Glanton, a/k/a "Newark", on East Hanover Street in Trenton. Shinnette Williams, Harriette Stephens and Terrence Darnell Williams witnessed the incident. Believing that Glanton had stolen money and drugs from a girlfriend, Dodson struck Glanton with an aluminum baseball bat. Glanton then grabbed the bat as it slipped out of Dodson's hands and hit Dodson on the leg with it. Dodson limped around the corner, placed a call from a pay phone, and asked Terrence Williams to call "Bones" (Tyrone Williams) to "get over here" because he and Glanton were fighting.
Tyrone Williams soon appeared carrying a blue bag. Harriette Stephens pointed Glanton out to him at which time Williams walked up to Glanton and hit him with his fist. A blue Hyundai drove up and the occupants, four African-American men, jumped out at the same time and ambushed Glanton. The men, each armed with a handgun, used the guns to beat Glanton. One of the assailants was later identified as defendant, Dudley Rue, by Shinette Williams and Hariette Stephens.
According to the witnesses, Glanton was essentially defenseless, and his head was split "wide open." During the beating, one of the hand guns discharged, apparently accidentally. The sound of the gunfire attracted the attention of Trenton Police Officers Jeremiah Maldonado and Luis Medina, who were on routine patrol. The assailants continued to beat Glanton until they saw the police car, at which point they scattered.
According to Officers Maldonado and Medina, Rue and another of the assailants, Rory Bryson, walked "very quickly" toward the unoccupied blue Hyundai. Both "appeared to be very nervous." The officers testified that they noticed a distinctive patch of discolored skin measuring four inches long and one and three- quarter inches wide beneath Rue's left eye and that Rue was carrying a gun in his left hand, pointed at the ground. Officer Maldonado informed Medina that Rue was armed, and both officers alighted from their car. Maldonado grabbed Bryson before he could enter the Hyundai. Bryson was in possession of an operable, ...