STATE OF NEW JERSEY VS. MAXIE CINTRON(10-06-0497, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3874-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAXIE CINTRON,
Defendant-Appellant.
_______________________________
Submitted November 6, 2017 - Decided December 1, 2017
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 10-06-0497.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Scott A. Coffina, Burlington County
Prosecutor, attorney for respondent (Nicole
Handy, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Following the denial of his motion to dismiss those counts
of a superseding indictment, against him and five others,
charging him with second-degree attempted burglary, N.J.S.A.
2C:5-1a(1) and N.J.S.A. 2C:18-2a(1); third-degree conspiracy,
N.J.S.A. 2C:5-2a; and third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4d; defendant Maxie Cintron
pled guilty to those charges and to fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5d.1
Although the plea was not negotiated, it was based on the
court's representation the sentence would not exceed five years,
eighty-five percent of which would be served before defendant
could become eligible for parole. Defendant, who was extended-
term eligible, was subsequently sentenced on the burglary count
to five years in State prison subject to the periods of parole
ineligibility and supervision required by the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2; to concurrent five-year NERA
terms on the conspiracy and possession for unlawful purpose
counts; and to a concurrent eighteen-month term for unlawful
possession of a weapon.
Defendant appealed his sentence, which we heard on a
sentencing calendar. See R. 2:9-11. Acknowledging that the
defendant's five-year term for attempted burglary was the lowest
term possible without special findings, his counsel argued the
1
The State alleged defendant was part of a burglary ring. He
was arrested in possession of burglary tools and a three inch
folding knife behind a home the ring had targeted.
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judge should have merged the counts for sentencing purposes.
The State, although noting merger would have no practical effect
on defendant's sentence, did not oppose a remand to amend the
judgment of conviction to reflect appropriate mergers. We
accordingly affirmed the sentence, but remanded for entry of an
amended judgment to reflect merger of the weapons counts and the
conspiracy and attempted burglary counts for sentencing
purposes.
Several months later, defendant filed a timely petition for
post-conviction relief (PCR), claiming ineffective assistance of
trial and appellate counsel. Defendant claimed his trial
counsel was ineffective for failing to have filed various pre-
trial motions on his behalf, and appellate counsel was
ineffective for proceeding with the appeal without consulting
with him as to the issues he wanted raised.
After hearing argument, the judge denied the petition
without an evidentiary hearing. See State v. Preciose, 129 N.J.
451, 462-64 (1992). The judge rejected defendant's arguments
that trial counsel was ineffective for having missed arguments
that would have resulted in dismissal of the indictment and for
having failed to negotiate a conditional plea.
The judge also rejected defendant's argument that appellate
counsel was ineffective for having limited the appeal brought on
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defendant's behalf to issues bearing on his sentence. Although
acknowledging defendant "informed the Office of the Public
Defender of his desire to appeal all aspects of his case," the
court concluded defendant could not show a meritorious issue for
appeal, and thus could not show prejudice under the second prong
of the Strickland test. See Strickland v. Washington, 466 U.S.
668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674,
693, 698 (1984).
Defendant appeals, raising the following two issues:
POINT ONE
MR. CINTRON IS ENTITLED TO RELIEF ON HIS
CLAIM THAT HIS TRIAL ATTORNEY RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING
TO FILE ADEQUATE MOTIONS TO DISMISS AND
FAILING TO PRESERVE HIS RIGHT TO APPEAL THE
DENIAL OF THE MOTIONS TO DISMISS THAT WERE
FILED.
POINT TWO
MR. CINTRON IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT HIS APPELLATE
ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL BY FAILING TO APPEAL HIS
CONVICTIONS, AS REQUESTED.
Three months after the trial court dismissed defendant's
PCR petition, we issued our opinion in State v. Jones, holding
in accordance with Roe v. Flores-Ortega, 528 U.S. 470, 484, 120
S. Ct. 1029, 1038-39, 145 L. Ed. 2d 985, 999-1000 (2000), that
when a defendant can show his attorney failed to file an appeal
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as directed, prejudice is presumed, and the defendant must be
permitted the opportunity to file a direct appeal of his
conviction. State v. Jones, 446 N.J. Super. 28, 30-31 (App.
Div.), certif. denied, 228 N.J. 72 (2016). The State argues
Flores-Ortega is not applicable because defendant's appellate
counsel appealed his sentence, and the law is clear appellate
counsel is not required to advance every argument, regardless of
merit, urged by the defendant on appeal, State v. Gaither, 396
N.J. Super. 508, 515-16 (App. Div. 2007), certif. denied, 194
N.J. 444 (2008).
We reject the State's argument. In Gaither, appellate
counsel filed an appeal on Gaither's behalf raising issues as to
his conviction and sentence. Id. at 511-12. Counsel, however,
had not consulted with Gaither about those issues because he had
carelessly written to Gaither about the appeal at an incorrect
address. Id. at 512. We held appellate counsel's failure to
communicate with Gaither regarding his appeal fell below
objective standards of reasonableness, thus satisfying the first
prong of the Strickland test. Id. at 514.
Relying, however, on the United States Supreme Court's
holding in Jones v. Barnes, 463 U.S. 745, 754, 103 S. Ct. 3308,
3314, 77 L. Ed. 2d 987, 995 (1983), that the Constitution
imposes no duty "on appointed counsel . . . to raise every
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'colorable' claim suggested by a client," we declined to hold it
a per se violation of the guarantee of effective counsel.
Gaither, supra, 396 N.J. Super. at 515-16. Instead, we required
Gaither to prove prejudice in accord with the second prong of
Strickland. Id. at 513-14. Because Gaither could not show how
appellate counsel's argument had been deficient or what he would
have done differently had Gaither been able to consult with him,
we declined relief. Id. at 514-15.
Contrary to the State's assertion, this is not a case in
which the failure of appellate counsel to consult led to
defendant's dissatisfaction with the issues raised in his behalf
on appeal of his conviction as in Gaither. Defendant filled out
the Office of the Public Defender's "Appeal Request" form. That
form asks the defendant to direct the Public Defender regarding
the filing of an appeal by checking one of three boxes as
follows:
I wish to appeal my entire case including
the sentence received.
I wish to appeal only the sentence imposed
by the Judge.
At this time I do not wish the Public
Defender to take further action regarding my
case.
Defendant checked the first box, thereby directing the Public
Defender to appeal both his conviction and his sentence.
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It is undisputed the Public Defender limited defendant's
appeal to the propriety of his sentence in derogation of
defendant's express direction. In doing so, counsel forfeited
defendant's right to raise any issue challenging his conviction.
Appellate counsel's failure to appeal defendant's conviction
after defendant directed him to do so makes this case one
controlled by Jones, not Gaither, notwithstanding appellate
counsel's successful pursuit of the appeal of defendant's
sentence. See also State v. Carson, 227 N.J. 353, 354 (2016)
(acknowledging as "controlling case law" the holding of Flores-
Ortega, supra, 528 U.S. at 483, 120 S. Ct. at 1038, 145 L. Ed.
2d at 999, "that when counsel's deficient performance 'led not
to a judicial proceeding of disputed reliability, but rather to
the forfeiture of a proceeding itself [,]' . . . the 'denial of
the entire judicial proceeding . . . demands a presumption of
prejudice'").
The denial of defendant's PCR petition is reversed and he
is permitted forty-five days from the date of this opinion to
file an appeal limited to his conviction.
Reversed.
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