On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-10-2525.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Fuentes and Simonelli.
Defendant Jamal Muhammad appeals from the denial of his petition for post conviction relief (PCR) grounded on ineffective assistance of trial and PCR counsel. Based on the record before us, we are compelled to remand this matter for a new PCR hearing.
A jury convicted defendant of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count three); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count four); first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1), (2) (count five); and second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count six).
At sentencing, the trial judge merged felony murder with murder, and imposed a sentence of life imprisonment with a thirty-year period of parole ineligibility. The judge also merged count two with counts three and six, and imposed the following sentences, all concurrent to the murder sentence: five years on count one; twenty years with a ten-year Graves Act parole disqualifier, N.J.S.A. 2C:43-6c, on count three; and ten years on count six.
Defendant filed a direct appeal challenging his conviction. We affirmed, and our Supreme Court denied certification. State v. Muhammad, 359 N.J. Super. 316 (App. Div.), certif. denied, 178 N.J. 36 (2003).
It is unclear from the record when and who filed defendant's PCR petition. Nevertheless, the Office of the Public Defender assigned counsel (PCR counsel) to represent defendant in the prosecution of the petition. Defendant claims that he wrote to assigned counsel, requesting that she raise three issues relating to trial counsel's deficiencies: (1) trial counsel failed to request jury charges on the lesser-included offenses of aggravated manslaughter and reckless manslaughter or to have the murder count dismissed; (2) trial counsel failed to seek dismissal of the robbery and felony murder charges; and (3) trial counsel failed to request a Hampton/Kociolek*fn1 jury instruction. Defendant also requested that PCR counsel meet or speak with him.
Apparently without consulting defendant, PCR counsel submitted a brief, which did not include the issues defendant allegedly requested. PCR counsel primarily relied on that brief at oral argument. The trial judge denied the petition without a hearing.
Defendant appeals, contending that he was constructively denied his right to counsel at his PCR hearing because PCR counsel did not consult with him, failed to raise the issues he requested, and submitted a brief so deficient that PCR counsel appeared to be arguing the facts of a case other than his case. For example, PCR counsel wrote in the brief that "[n]o statements were collected from the victims, there were no interviews conducted of people who witnessed the alleged crime, and there were [no] statements taken from the victim indicating that she was not injured from the actions of [defendant]." However, there was only one victim in this case, the victim was a male, and he died as a result of the incident. PCR counsel also raised issues not supported by the record, i.e., that defendant should have received rehabilitation, rather than prison, for a murder conviction.
PCR "[c]counsel should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit." Rule 3:22-6(d)*fn2 "Because of the importance of the role of counsel, this mandate must be strictly construed by our courts." State v. Hicks, 411 N.J. Super. 370, 375 (App. Div. 2010).
PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief 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. [State v. Webster, 187 N.J. 254, 257 (2006).]
"The remedy for counsel's failure to meet the requirements imposed by Rule 3:22-6(d) is a new PCR proceeding." Hicks, supra, 411 N.J. Super. at 376. "This relief is not predicated upon a finding of ineffective assistance of counsel under the relevant constitutional standard." Ibid. (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987)). Rule 3:22-6(d) imposes an ...