Submitted May 1, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-11-02010.
Silas Quixal, appellant pro se.
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Simonelli, Koblitz and Accurso.
Defendant Silas Quixal appeals from the April 2, 2012 order denying his second petition for post-conviction relief (PCR) after a paper review. Among his other claims, defendant argues that his written rejection of PCR counsel for his initial PCR petition did not conform to the constitutionally required knowing and intelligent waiver of counsel. The State argues that defendant did not have a constitutional right to counsel. Because defendant was precluded from raising the claim of ineffective assistance of counsel on direct appeal, we agree that he had a constitutional right to effective counsel at his initial PCR hearing, and that his written request to represent himself was insufficient to waive counsel. We therefore reverse and remand for appointment of counsel and consideration of his claims.
Defendant was convicted by a jury of first-degree aggravated sexual assault upon a six-year-old child, N.J.S.A. 2C:14-2(a)(1), and various other related charges. He was sentenced to an aggregate term of twenty-eight years in prison subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2. In an unpublished opinion we affirmed his conviction, indicating that we would not decide the issue of ineffective assistance of counsel as it was more properly raised in a PCR petition. State v. Quixal, No. A-5879-07 (App. Div. Apr. 19, 2010). We remanded for resentencing to allow the judge to explain further why he imposed consecutive sentences. Id. (slip op. at 6). The Supreme Court denied certification. State v. Quixal, 203 N.J. 94 (2010). Defendant was subsequently resentenced to the same term on June 22, 2010.
Defendant worked at a garden center where he sexually assaulted the victim when her mother brought her along to have some plants repotted. Immediately after the incident, the victim told her mother that defendant had kissed her on the lips and licked her, pointing to her vaginal area. Subsequent forensic testing confirmed DNA on the victim's underwear that matched defendant's DNA. Defendant was immediately arrested at the garden center and admitted to the police that he sexually assaulted the child.
In December 2010, defendant filed his first PCR petition. On February 14, 2011, the judge's law clerk wrote defendant a letter advising him of his right to counsel and instructing him in detail how to apply for the appointment of a public defender. Defendant was told that he could also represent himself if he notified the court in writing of his desire to do so. Five weeks later defendant wrote back, rejecting the offer of legal assistance from the public defender and seeking to represent himself. He also requested that his application be heard "on the papers." He signed a waiver of his right to be present in court. His PCR petition was denied, and defendant did not appeal.
In March 2012 defendant filed a second PCR petition alleging that his first petition, which he claimed raised "frivolous" issues, had been prepared and filed by an unnamed fellow inmate without his consent. The judge concluded that "there was no good cause entitling the assignment of counsel on the application . . . ." See R. 3:22-6(b) ("Upon any second or subsequent petition filed pursuant to this Rule attacking the same conviction, the matter shall be assigned to the Office of the Public Defender only upon application therefor and showing of good cause."). Defendant did not deny signing the waiver of appearance for his first PCR petition but claimed that because he did not speak English and was not well-educated, his first petition was "improperly fil[ed]." The judge denied this second PCR petition because he determined that defendant's claim of ineffective assistance of counsel on the first petition was not available to a defendant who had represented himself.
On appeal defendant raises the following issues:
POINT I: DEF[E]NDANT MET THE REQUIREMENTS OF [RULE] 3:22-4(b) AND THEREFORE THE PCR COURT ERRED BY BARRING THE DEFENDANT.
POINT II: THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 ...