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State v. Ferrer


June 20, 2008


On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-04-0256.

Per curiam.


Submitted May 27, 2008

Before Judges Lintner and Sabatino.

Defendant, Nelson Ferrer, appeals the Law Division's March 7, 2007 order denying his petition for post-conviction relief ("PCR"). We vacate the order, and remand for an evidentiary hearing. For the reasons we shall explain, such a hearing is warranted to explore whether trial counsel consulted with defendant about potentially filing a direct appeal of his fourth-degree conviction for violating N.J.S.A. 2C:7-2(e).

Defendant has been employed for the past eighteen years as a custodian at the New Jersey Veterans Memorial Home. He has a prior conviction of a sex offense that requires him to register with the police under Megan's Law. Defendant duly registered and re-registered for four consecutive years in 2000 through 2003.

In 2004, defendant moved to Millville. He failed to reregister and notify the police that he had moved, in violation of the requirements of Megan's Law. Defendant claims that he overlooked his registration obligations because he was then having some marital difficulties.

Subsequently, a Cumberland County grand jury issued a two-count indictment against defendant. Count I charged defendant with violating N.J.S.A. 2C:7-2(e), for failing to re-register in 2004 as a convicted sex offender. Count II alleged that defendant simultaneously violated N.J.S.A. 2C:7-2(d), for failing to give the police at least ten days advance notice of his intention to move prior to his change of address to Millville. At the time of the indictment, both N.J.S.A. 2C:7- 2(e) and N.J.S.A. 2C:7-2(d) were believed to be classified as fourth-degree offenses.

On September 26, 2005, defendant reached a plea agreement in which the State agreed to dismiss Count II in exchange for a guilty plea to Count I. The State also agreed to recommend a sentence of probation, with a cap of 364 days in the County jail. The plea was presented in open court that same day.

Thereafter, on November 4, 2005, defendant appeared for sentencing and was sentenced to a three-year term of probation on Count I, plus various fines. The probation was designated as consecutive to the probation on an offense that defendant committed years earlier.

Defendant did not file a direct appeal of his judgment of conviction for the registration offense. The forty-five days to file such an appeal expired on December 19, 2005. See R. 2:4-1(b). Fifty-five days after defendant's sentencing, on December 29, 2005, the Supreme Court decided State v. Gyori, 185 N.J. 422 (2005). The Court reversed a prior 2-1 decision that we had issued on December 22, 2004, in State v. Gyori, 373 N.J. Super. 559 (App. Div. 2004). Adopting Judge Wecker's dissenting opinion from our court, the Supreme Court held that a violation of N.J.S.A. 2C:7-2(e) did not constitute a fourth-degree crime, because the statute did not adequately specify such a criminal exposure.*fn1 Gyori, supra, 185 N.J. at 422; see also Gyori, supra, 373 N.J. Super. at 567 (Wecker, J.A.D., dissenting).

Defendant argues that his trial counsel was ineffective in failing to file a direct appeal of his judgment of conviction. If such an appeal had been filed, defendant contends he would have been in the litigation pipeline and have obtained the benefit of the Supreme Court's ruling in Gyori. Alternatively, defendant contends that his counsel was at least ineffective in neglecting to confer with him and to advise him about the possibility of filing such an appeal. Defendant further asserts that his trial counsel was ineffective at sentencing, in failing to argue several mitigating factors.

After hearing oral argument, the PCR judge dismissed defendant's petition without conducting an evidentiary hearing. The judge held that even if the Supreme Court intended Gyori to have pipeline retroactivity, the new precedent would not apply to defendant because he did not file a direct appeal of his September 2005 conviction under N.J.S.A. 2C:7-2(e). The judge also ruled that trial counsel was not ineffective because, at the time of his client's conviction, the law of our State treated a violation of the statute as a fourth-degree offense. The judge made no finding as to whether or not defense counsel had consulted with his client about the prospect of appealing the judgment of conviction.

Additionally, the PCR judge noted that even if Count I had been stricken on appeal pursuant to the Supreme Court's opinion in Gyori, the charges in Count II involving N.J.S.A. 2C:7-2(d) would have been unaffected by that new case. Hence, the judge reasoned that Count II would have provided an alternate route to convict defendant of a fourth-degree crime, and concluded that defendant was not prejudiced by his attorney's failure to appeal.

On appeal, defendant argues that, at a minimum, he was at least entitled to an evidentiary hearing before the PCR judge dismissed his petition. We agree, in light of the particular and rather serendipitous chronology of this matter.

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

An evidentiary hearing is warranted on a PCR petition where a defendant has made a prima facie case that he may be entitled to relief. State v. Preciose, 129 N.J. 451, 462 (1992). Such a prima facie case has been presented here, at least with respect to defendant's claim relating to counsel's alleged failure to consult.

A criminal defendant's right to counsel includes the right to adequate legal advice. Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692; State v. Allah, 170 N.J. 269, 283 (2002). In a situation where counsel has not filed an appeal that might have produced a benefit to the defendant, the court must consider whether the lawyer consulted the client about such a potential appeal, or had received instructions from the client to not appeal. Roe v. Flores-Ortega, 528 U.S. 470, 478, 120 S.Ct. 1029, 1035, 145 L.Ed. 2d 985, 995-96 (2000). The term "consult" in this context signifies "advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes." Ibid.

If the attorney so consults with defendant, then he or she must follow the client's wishes. Ibid. If, on the other hand, the attorney does not consult with the defendant, then the court has to determine whether that failure is deficient. Ibid. Such a deficiency exists if there are rational grounds to believe that a defendant in the circumstances would have wanted to appeal, or if the defendant otherwise had reasonably demonstrated that he or she was interested in appealing. Id. at 480, 120 S.Ct. at 1036, 145 L.Ed. 2d at 997. The court's inquiry requires an assessment of what counsel knew or should have known. Ibid.

Here, there was a rational basis for a person in defendant's shoes to have wanted his attorney to file a direct appeal, at least as a protective measure, of the November 4, 2005 judgment of conviction under N.J.S.A. 2C:7-2(e). At that time, there was a published dissent in Gyori in the Appellate Division, declaring that the statute does not allow for a fourth-degree criminal penalty. The Supreme Court had already announced on May 25, 2005 that it would be hearing Gyori's appeal as of right under Rule 2:2-1(a), by virtue of the dissent below. See State v. Gyori, 183 N.J. 582 (2005) (granting appeal). Oral argument before the Supreme Court in Gyori took place on November 7, 2005, three days after the present defendant was sentenced.

A prudent defense attorney should have recognized that filing a protective appeal -- to get the benefit of whatever possible favorable ruling in Gyori came down from the Supreme Court -- was worth discussing with his client.

Assuming, for the sake of argument, that no such consultation took place, we discern that the resulting absence of an appeal could have caused real prejudice to defendant. That is so because we strongly suspect that the Supreme Court would accord pipeline retroactivity of the holding in Gyori to any defendant who had an appeal pending on December 29, 2005, the day Gyori was decided. See State v. Feal, 194 N.J. 293, 308 (2008) (reciting the well-established standards for pipeline retroactivity of a criminal precedent).

Gyori announced a new rule of law concerning the scope of N.J.S.A. 2C:7-2(e), one that was foreshadowed by Judge Wecker in her dissent in the Appellate Division. Once that dissent was published and it was clear the case was heading to the Supreme Court, prosecutors and defendants would have less reason to rely upon the old rule with confidence. This lessened reliance interest, coupled with Gyori's aim to honor the legislative intent of the statute, plus considerations of the overall fair administration of justice, signals that Gyori should be given pipeline retroactivity. Feal, supra, 194 N.J. at 308-10.

We do not share the PCR judge's assumption that defendant suffered no prejudice here because he inevitably would have been convicted of Count II, also a fourth-degree offense. If only one count of the indictment, Count II, remained in the case after Gyori, it is by no means certain that defendant would have pled to that sole count without a sentencing downgrade or some other form of concession from the State. Although the proofs of non-registration are strong, we cannot be sure that a jury would have convicted defendant of Count II beyond a reasonable doubt. In short, there are too many unknowns here to presume lack of prejudice.

At the oral argument on the PCR petition, defense counsel urged the court to have an evidentiary hearing "where we could sit down with [defendant's trial counsel] and . . . listen to him and . . . hear what he has to say in reference to [the Gyori] decision, when he saw the decision, [and] what its ramifications were." Such a hearing also would enable the court to verify the truth of defendant's claim that his attorney never discussed an appeal with him. In this regard, we find it noteworthy that the record contains no certification from trial counsel attesting that such consultation had, in fact, transpired. An evidentiary hearing would afford the PCR judge a chance to sort through these pivotal credibility issues. Preciose, supra, 129 N.J. at 462.

Consequently, we must vacate the Law Division's order and remand for a plenary hearing on whether trial counsel did or did not discuss with defendant taking an appeal while Gyori was pending before the Supreme Court. If such consultation took place, however, and defendant instructed counsel to not bother filing an appeal, no ineffectiveness existed. An opposite conclusion would pertain if consultation was absent, or if defendant had directed his counsel to appeal. These factual issues must be sorted out on remand, with appropriate testimony to be taken, if feasible, from defendant and from his former attorney.

We have duly considered the remaining arguments raised by defendant, including his assertions about the pertinent sentencing factors, and conclude that they lack sufficient merit to discuss in this written opinion. R. 2:11-3(e)(2).

Vacated and remanded. We do not retain jurisdiction.

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