Submitted December 6, 2016
appeal from Superior Court of New Jersey, Law Division,
Camden County, Indictment No. 06-08-2916.
E. Krakora, Public Defender, attorney for appellant (Alan I.
Smith and Monique Moyse Designated Counsel, on the brief).
Eva Colalillo, Camden County Prosecutor, attorney for
respondent (Jason Magid, Assistant Prosecutor, of counsel and
on the brief).
Judges Reisner, Koblitz and Sumners.
SUMNERS, JR., J.A.D.
Defendant Marcus Perkins challenges a March 26, 2015 order
denying his petition for post-conviction relief (PCR)
alleging ineffective assistance of counsel due to his trial
attorney's failure to file an appeal on defendant's
reverse following the State's acknowledgement in a
supplemental brief that defendant should be allowed to file a
direct appeal of his conviction due to this court's
recent decision that the trial counsel's failure to file
a direct appeal when requested by the defendant is presumed
prejudicial and constitutes ineffective assistance of
counsel. State v. Jones, 446 N.J.Super. 28, 34-35
(App. Div.), certif. denied, __N.J.__ (2016)
(relying on Roe v. Flores-Ortega, 528 U.S. 470, 484,
120 S.Ct. 1029, 1038-39, 145 L.Ed.2d 985, 999-1000 (2000)).
We hold that when a defendant has not been afforded a
requested appeal due to ineffective assistance of counsel, as
occurred here, the PCR judge has the authority to provide
defendant forty-five days to file that appeal.
it necessary to provide a brief summary of the procedural
history to explain what led to the State's revised
position in this matter. On October 31, 2008, a jury
convicted defendant of: the lesser-included offense of
first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a),
first-degree felonymurder, N.J.S.A. 2C:11-3(a)(3),
first-degree armed robbery, N.J.S.A. 2C:15-1, fourth-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(d),
third-degree hindering apprehension or prosecution, N.J.S.A.
2C:39-3(b)(1), and first-degree conspiracy to commit murder,
N.J.S.A. 2C:5-2. On January 15, 2009, defendant was
sentenced, after merger, to an aggregate prison term of
thirty-five years, subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2, plus a consecutive four years, two of
which to be served without parole.
did not file a direct appeal. Rather, on November 27, 2013,
he submitted a pro se PCR petition to the court. His
subsequently assigned PCR counsel filed a brief raising
several issues. Relevant to our decision, PCR counsel argued
that trial counsel failed to file a direct appeal as
judge, who also presided over the trial, conducted a limited
evidentiary hearing on October 31, 2014, where defendant and
trial counsel testified regarding the allegation that counsel
failed to file a direct appeal as requested by
defendant. On March 13, 2015, the judge heard
counsel's arguments on the other PCR issues.
March 26, 2015, the judge entered an order and a written
decision denying PCR. Concerning the filing of a direct
appeal, the judge found that, based upon the evidentiary
hearing testimony, counsel was deficient for not filing an
appeal, but he had no authority, as he phrased it, to order
our court to hear an appeal six years after sentencing. As to
the remaining allegations of trial counsel's
ineffectiveness, the judge found that defendant did not
establish a prima facie case of ineffective assistance.
appeal, defendant reiterated the arguments raised before the
PCR judge, including the claim that counsel was ineffective
for not filing a direct appeal. The State filed its appellate
brief on March 7, 2016. Jones was subsequently
decided on June 20, 2016.
February 23, 2017, we issued a sua sponte order directing the
parties to file supplemental briefs as to "[w]hether we
should allow defendant to file a direct appeal out of time
pursuant to our recent decision in [Jones, ]." In its
submission, the State acknowledged that in light of
Jones and the PCR ...