STATE OF NEW JERSEY v. CHARLES UCHE-AKABUOGU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES UCHE-AKABUOGU, a/k/a NORMAN

STANLEY LOVE, NORMAN LOVE, and VALENTINO

BLACK,

Defendant-Appellant.

___________________________________________

September 15, 2016

Submitted July 26, 2016 Decided

Before Judges Messano and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 12-09-0731.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

CameliaM. Valdes,Passaic County Prosecutor, attorney for respondent (Kirah M. Addes, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Charles Uche-Akabuogu pled guilty to second-degree use of personal identifying information of another, N.J.S.A. 2C:21-17.2(a). Pursuant to the plea agreement, defendant was sentenced as a third-degree offender to a three-year term of imprisonment. Defendant did not file a direct appeal, but, on August 5, 2013, he filed a pro se petition for post-conviction relief (PCR). Defendant claimed that the statute, as written in the indictment "N.J.S.A. 2C:21-17.2A" did not exist, and the indictment lacked a stamp indicating it was a true bill.

PCR counsel was appointed. In a March 29, 2014 letter to the judge, counsel noted that it was the last day for submission of a brief on defendant's behalf. He stated that he would "not be filing a supplemental brief," and would "rely solely on [defendant's] pro se petition . . . at the oral argument . . . ."

At the hearing on the petition, the judge indicated that there had been a brief, off-the-record conference in chambers. On the record in court, PCR counsel made no argument whatsoever, and indicated that defendant wished to "present his position to the [c]ourt." Otherwise, counsel stated he was relying on defendant's petition.

The PCR judge, who had also accepted defendant's guilty plea and imposed sentence, permitted defendant to address the court. Defendant launched into a discussion of events since his sentence and begged the judge to dismiss the case so he would "have no immigration matter."

The judge quoted several pages from the transcript of the plea proceedings clearly indicating that, at the time, after questioning by the judge and then defense counsel, defendant understood the potential adverse immigration consequences of his guilty plea and had already contacted the federal immigration authorities. The judge reserved decision following argument.

In a concise written opinion that followed, the judge addressed the two points initially raised in the petition and found they were without merit. The judge reiterated that defendant pled guilty fully knowing the "offense would normally result in a defendant's deportation." She denied the petition, and this appeal followed.

Before us, defendant argues that he is entitled to a new PCR hearing because PCR counsel "failed to represent" him and "undermined his claims so as to render his PCR hearing meaningless." We agree and reverse.

We recognize that

in an initiative unique among our sister-jurisdictions, [our Rules] state that every defendant is entitled to be represented by counsel on a first PCR petition; that if a defendant is indigent, counsel will be assigned; that assigned counsel may not withdraw based on the ground of "lack of merit" of the petition; and that "counsel should advance any grounds insisted on by defendant notwithstanding that counsel deems them without merit."

[State v. Rue, 175 N.J. 1, 13 (2002) (quoting R. 3:22-6).]

The Court has since made clear what is required of PCR counsel: "PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support." State v. Webster, 187 N.J. 254, 257 (2006).

When PCR counsel fails to meet this standard, the appropriate remedy is a remand for a new PCR hearing. State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing Rue, supra, 175 N.J. at 4). "This relief is not predicated upon a finding of ineffective assistance of counsel under the relevant constitutional standard. Rule 3:22-6(d) imposes an independent standard of professional conduct upon an attorney representing a defendant in a PCR proceeding." Ibid. (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987)).

In Hicks, PCR counsel failed to file any brief, although he advanced arguments contained in the defendant's pro se PCR petition and brief. Id. at 373. Under the circumstances, we noted that the record failed to include "any indication that counsel personally and independently reviewed defendant's file to ascertain the availability of any other grounds for relief." Ibid.

In Hicks, we also said that reviewing a defendant's pro se submission was "a mere starting point" for counsel's efforts, and PCR counsel was required to "certify" his or her satisfaction "that no further argument or elaboration is required." Id. at 377. Absent such a certification, "a reviewing court must presume that counsel did not make a meaningful effort to comply with the requirements of Rule 3:22-6(d)." Ibid.

Here, defense counsel did not file a brief or make any argument whatsoever at the hearing. Nor did he file a certification as we required in Hicks. PCR counsel's letter to the judge, sent on the day his brief was due, did not indicate that he had communicated with defendant or reviewed his file.

We conclude PCR counsel failed to meet the minimum standards under Rue and Webster. We hasten to add that our opinion in no way implies any criticism of the judge. The correctness of her analysis, on the record before her, cannot be questioned. However, defendant was entitled to be represented by PCR counsel who met the minimal standards required by our case law. We reluctantly reverse and remand the matter to the Law Division for a new hearing with new PCR counsel.

Reversed and remanded. We do not retain jurisdiction.