State of New Jersey v. Marcus Perkins

157 A.3d 471, 449 N.J. Super. 309

• Court: New Jersey Superior Court Appellate Division
• Decided: March 30, 2017
• Docket: A-4065-14T3
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4065-14T3

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, March 30, 2017 v. APPELLATE DIVISION

MARCUS PERKINS,

Defendant-Appellant. _____________________________

Submitted December 6, 2016 – Decided March 30, 2017

Before Judges Reisner, Koblitz and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-08-2916.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith and Monique Moyse Designated Counsel, on the brief).1

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

1 Ms. Moyse submitted the supplemental brief that we ordered sua sponte following Mr. Smith's passing in August 2016. 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 behalf.

We 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.

We find 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 felony-

murder, N.J.S.A. 2C:11-3(a)(3), first-degree armed robbery,

2 A-4065-14T3 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.

Defendant 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 defendant requested.

The PCR 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.2 On

March 13, 2015, the judge heard counsel's arguments on the other

PCR issues.

2 There was also testimony regarding the timeliness of the petition. As noted, the petition was submitted on November 27, 2013, but was not marked filed until March 4, 2014, almost two months beyond the five-year statute of limitations deadline. The PCR judge found that the petition was timely filed.

3 A-4065-14T3 On 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.

On 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.

On 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 judge's findings,

defendant is entitled to file a direct appeal out of time.

Here, as noted, the PCR judge was concerned that he could not

authorize the filing of an untimely notice of appeal. R. 2:4-4

(providing that we alone may extend time to appeal, and only on

motion). We now hold, however, that where a PCR judge finds that

4 A-4065-14T3 an appeal was sought by defendant and not filed due to counsel's

ineffective assistance, the judge has the authority to afford

defendant a forty-five day period to file an appeal. Upon filing

the notice of appeal, the defendant shall attach the PCR judge's

opinion and order.

Accordingly, we reverse the PCR judge's finding that trial

counsel was not ineffective, and we allow defendant forty-five

days from the date of this opinion to file his appeal of his

conviction and sentence.

Reversed.

5 A-4065-14T3