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State v. Gannone

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 10, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANCIS GANNONE, JR., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 99-02-0085.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 3, 2010

Before Judges Baxter and Coburn.

Defendant appeals from the denial of his petition for post-conviction relief ("PCR"). Because defendant was entirely denied the effective assistance of counsel in pursuit of his PCR, we reverse and remand for a proper PCR hearing.

I.

In 2001, defendant was tried to a jury, convicted of murder, and sentenced to life imprisonment with thirty years to be served without parole. On direct appeal, we affirmed, State v. Gannone, No. A-0407-01T4 (App. Div. March 19, 2004), and the Supreme Court denied certification. State v. Gannone, 180 N.J. 453 (2004).

Defendant, acting pro se, filed his PCR petition in May 2005. The Public Defender sent him a letter on August 29, 2005, advising that he would be represented by a named attorney. Despite numerous efforts by the defendant, the attorney never came to the state prison to speak with defendant or even communicated with him by mail. As a result of defendant's complaints, the Public Defender wrote to the attorney on October 13, 2006, instructing the attorney to contact the defendant. In February 2007, after further unsuccessful efforts to reach the assigned attorney, defendant asked the Public Defender for new counsel.

Four days later, defendant was brought to court without any notice indicating the nature of the planned proceedings. The attorney conferred with the defendant in court for about ten minutes. Upon learning that it was to be his PCR hearing, defendant complained to his assigned attorney that he did not have his paperwork with him and was completely unprepared to proceed. The attorney took responsibility for his client's unpreparedness and asked for an adjournment, which was denied. He admitted that he had not visited defendant in prison, while asserting that he had sent defendant a copy of his brief. Defendant denied receiving anything from the attorney.

The attorney's brief was three pages long. It made one argument that was procedurally barred because it had already been rejected on direct appeal by the Appellate Division. Although the judge found that defendant had received proper notice, there is no evidence to support that finding.

A discussion ensued regarding defendant's claims of ineffective assistance of counsel during the trial. Defendant's PCR attorney then said this: "Judge, if I may say something, I did have some of those points. I beg to differ with the merits of some of those points, and that's why I didn't include them." (Emphasis added).

After some further discussion, the judge said that defendant and his counsel could submit further briefs. The attorney said he would submit a brief. Later, defendant asked for the attorney's assistance on his pro se brief, but received no help. Defendant filed his pro se brief without the attorney's assistance, and it appears that the attorney filed nothing more with the trial court.

On September 18, 2007, the trial court entered an order denying relief, while also indicating that defendant could file another PCR petition asserting ineffective assistance of counsel on the first PCR petition. The trial court's opinion rejected defendant's claims of ineffective assistance of trial counsel without discussing them in detail.

II.

On appeal, defendant asserts that his PCR counsel was ineffective. Relying on Rule 3:22-6(d) (the "Rule"), he asks for a new PCR hearing.

At the time of the PCR hearing in this case, the Rule required that PCR "[c]counsel should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit." That mandate has been "strictly construed" because of the "importance of the role of counsel" in pursuing PCR. State v. Hicks, 411 N.J. Super. 370, 375 (App. Div. 2010). The representation must be "faithful and robust." State v. Rue, 175 N.J. 1, 18 (2002). Furthermore, when a lawyer is representing a defendant pursuant to the Rule, he or she "must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward." State v. Webster, 187 N.J. 254, 257 (2006). Even arguments proffered by defendant that the attorney believes are meritless must at least be incorporated by reference in the PCR brief. Ibid. And in no case is the attorney permitted to "denigrate or dismiss the client's claims, to negatively evaluate them, or to render aid and support to the state's opposition." Rue, supra, 175 N.J. at 19.

If a defendant shows that his PCR attorney's representation was deficient under the standards imposed by the Rule, the Strickland*fn1 test is irrelevant. Id. at 4; Hicks, supra, 411 N.J. Super. at 366.

In short, defendant asserts that his PCR attorney violated the Rule because he did not communicate with him in any substantial way before the hearing, failed to advance defendant's arguments or explore other possible arguments, limited his brief to one argument that had no merit whatsoever, and even went so far as to denigrate those arguments that defendant had wanted made.

The State's brief does not even cite or discuss the Rule, relying instead on a Strickland analysis.

As noted, Strickland is irrelevant in this context. The only question is whether defendant received the services to which he was entitled under the Rule. Unquestionably, he did not.

In Rue, the Court provided the remedy for a violation of the Rule, directing reversal of the PCR denial and remand for "the assignment of counsel as if on a first PCR petition, and for a new PCR hearing at which" all claims would be explored. Rue, supra, 175 N.J. at 19. The Court also ordered that the "case should be assigned to a different trial court." Ibid.

Consequently, we reverse and remand on the terms indicated by the Court in Rue.

Reversed and remanded.


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