On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This appeal addresses the obligations of counsel under Rule 3:22-6(d) to advance defendant's arguments in support of a post-conviction relief (PCR) petition.
Webster was convicted of first-degree murder and second-degree possession of a weapon for an unlawful purpose, and sentenced to a term of life with thirty years of parole ineligibility. His conviction was affirmed on appeal and this Court denied his petition for certification. In June 2002, Webster filed an amended PCR petition, arguing that he was denied effective assistance of counsel. The petition identified nine issues relating to the deficiencies of Webster's trial counsel and which his appellate counsel failed to raise on appeal.
An assistant deputy public defender submitted a brief in support of the PCR petition. The only argument included in that brief was that trial counsel was ineffective for failing to raise the defense of diminished capacity. This was not one of the issues identified by Webster in his pro se petition. A PCR hearing was held at which the diminished capacity issue was the only argument advanced. The trial judge denied the petition and Webster appealed.
In an unpublished per curiam opinion, the Appellate Division affirmed, declaring that Webster's arguments were without sufficient merit to warrant discussion. This Court granted Webster's petition for certification, limited to the issue of whether PCR counsel violated Rule 3:22-6(d) by failing to advance all issues raised by Webster. The Court granted the motions submitted by the Attorney General and the Association of Criminal Defense Lawyers of New Jersey to participate as amicus curiae.
HELD: PCR counsel must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference, so that the judge may consider them.
1. Rule 3:22-6(d) provides that assigned counsel on a PCR petition "should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit." In State v. Rue, 175 N.J. 1 (2002), this Court interpreted the Rule to require that counsel communicate with the client, investigate the claims, and, based on that communication and investigation, fashion the most effective arguments possible. Reduced to its essence, Rue requires that any brief filed by PCR counsel must advance the arguments that can be made in support of the petition and include a defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them. (pp. 4-6)
2. The brief filed by PCR counsel in this case did not refer to or incorporate the arguments contained in Webster's pro se petition, and only raised the diminished capacity issue in the context of the claim of ineffective assistance of counsel. Because the judge did not comment in any way on Webster's remaining claims, it is not clear that the judge, in fact, considered them. The matter must be remanded to the trial judge for a determination of the issues advanced in Webster's pro se brief. The Court also commends the matter to the Criminal Practice Committee to propose a revision of Rule 3:22-6(d) to reflect the views expressed in this opinion. (p. 6)
Judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO join in this per curiam opinion.
Defendant, Clayton Webster, was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(2), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and was sentenced to a custodial term of life with thirty years of parole ineligibility. His conviction ...