My Lawyer Denied My Request to Appeal My Criminal Conviction, Now What?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In a recent case decided by New Jersey’s Appellate Division, a jury convicted the 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, 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. 14-2-2907 State v. Marcus Perkins, N.J. Super. App. Div (Sumners, Jr., J.A.D.) (5pp).

The 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, he submitted a pro se post conviction relief (PCR) petition to the court. His subsequently assigned PCR counsel filed a brief raising several issues. The PCR counsel argued that trial counsel failed to file a direct appeal as defendant requested. In its submission, the State acknowledged that in light of Jones (decision below) and the PCR judge’s findings, defendant was entitled to file a direct appeal out of time.

The Appellate Court reversed the trial court’s denial for PCR 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)).

Therefore, the Court held 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.

Another case was decided by New Jersey’s Appellate Division regarding the exact same issue.  In the unreported case State v. Hernandez, the defendant pled guilty resulting in a restitution requirement and a custodial sentence of ten years with three years of parole ineligibility. 14-2-2906 State v. Hernandez , N.J. Super. App. Div. (per curiam) (5 pp.). Defendant sought an appeal, but his attorney at the time denied his request.  The Court overturned the PCR judge’s denial of an appeal, relying on Jones.  Defendant was given forty-five days to file an appeal due to ineffective counsel.

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