State of New Jersey v. Marcus Perkins

NOT FOR PUBLICATION WITHOUT THE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,
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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.
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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
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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.
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