STATE OF NEW JERSEY v. MALIK R. SMITH

NOT FOR PUBLICATION WITHOUT THE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.

MALIK R. SMITH,

Defendant-Appellant.

________________________________________________________________

June 19, 2014

Submitted May 28, 2014 Decided

Before Judges Fisher and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-04-0824.

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

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (James F. Smith, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

We reverse the March 19, 2012 order denying defendant Malik R. Smith's application for post-conviction relief (PCR) without an evidentiary hearing for the reason argued in defendant's pro se appellate brief: his PCR counsel ignored defendant's arguments contained in his pro se PCR brief.

Defendant was convicted at trial of robbery, felony murder and other serious criminal charges and sentenced to an aggregate term of sixty-six and one-half years with a fifty-one year mandatory minimum term. We affirmed. State v. Smith, Docket No. A-1539-06 (App. Div. Jan. 9, 2009). Our Supreme Court denied his petition for certification, 205 N.J. 520 (2011). Defendant filed a timely petition for PCR, supported by assigned counsel's brief as well as defendant's pro se supplemental brief.

Although the PCR judge had not tried the case, PCR counsel did not provide the judge with a copy of the trial transcript. Counsel raised the issue that trial counsel was ineffective in not moving for a mistrial after the jury announced it was "hopelessly deadlocked." PCR counsel also argued that trial counsel should have moved to dismiss the robbery charges at the end of the State's case due to insufficient evidence, pursuant to Rule 3:18-1. The PCR judge noted that, without the trial transcript, this was a difficult issue for him to evaluate. He then asked whether the issue had been raised on appeal and, if not, whether it would not then be a claim of ineffective assistance of appellate counsel. PCR counsel mistakenly did not correct the PCR judge when the judge said that the issue of ineffective assistance of appellate counsel was not before the court. The first point in the pro se PCR brief actually argued that "appellate counsel deprived petitioner [of] a fair appellate review due to his substandard performance[.]"

On appeal, designated counsel raises the following issues:

POINT I: THE PCR COURT ERRED IN RULING THAT MR. SMITH'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS WERE PROCEDURALLY BARRED.

POINT II: THE PCR COURT ERRED IN DENYING MR. SMITH'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING.

Defendant pro se raised the following single issue:

POINT I: PCR COUNSEL VIOLATED RULE 3:22-6(d) DURING HIS REPRESENTATION OF PETITIONER.

A. PCR COUNSEL FAILED TO LIST AND/OR INCORPORATE BY REFERENCE PETITIONER'S CLAIMS.

Rule 3:22-6(d), which governs PCRs, states:

Substitution; Withdrawal of Assigned Counsel. The court shall not substitute new assigned counsel at the request of defendant while assigned counsel is serving, except upon a showing of good cause and notice to the Office of the Public Defender. Assigned counsel may not seek to withdraw on the ground of lack of merit of the petition. Counsel should advance all of the legitimate arguments requested by the defendant that the record will support. If defendant insists upon the assertion of any grounds for relief that counsel deems to be without merit, counsel shall list such claims in the petition or amended petition or incorporate them by reference. Pro se briefs can also be submitted.

In State v. Rue, 175 N.J.1, 19 (2002), our Supreme Court held that PCR counsel

must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them. Thereafter, as in any case in which a brief is filed, counsel may choose to stand on it at the hearing, and is not required to further engage in expository argument. In no event however, is counsel empowered to denigrate or dismiss the client's claims, to negatively evaluate them, or to render aid and support to the state's opposition. That kind of conduct contravenes our PCR rule.

The Court emphasized that PCR representation short of the Rue requirement would result in a new PCR hearing because counsel's brief "did not refer to or incorporate the arguments contained in defendant's pro se petition" and only raised one issue, and because "the judge did not comment in any way on defendant's remaining claims[.]" State v. Webster, 187 N.J. 254, 258 (2006).

The State concedes that PCR counsel failed to meet the requirements of Rule 3:22-6(d), but argues that we should apply the review standard enunciated in State v. Love, 233 N.J. Super.38, 45 (App. Div.), certif. denied, 118 N.J. 188 (1989), by which we review the errors of trial counsel alleged in a PCR petition; that a trial attorney's failure to take a futile action is not constitutionally deficient. We have explicitly rejected that standard in reviewing the effectiveness of PCR counsel. State v. Hicks, 411 N.J. Super. 370, 376-77 (App. Div. 2010). In Hicks, we held that the "remedy for counsel's failure to meet the requirements imposed by Rule3:22-6(d) is a new PCR hearing." Id.at 376. This relief is not predicated upon a finding of ineffective assistance of counsel under the two-prong Stricklandtest, Strickland v. Washington, 466 U.S. 668, 687, 694, l 04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). Rather, Rule 3:22-6(d) imposes an "independent standard of professional conduct upon an attorney representing a defendant in a PCR hearing." Hicks, supra, 411 N.J. Super. at 376. We thus reverse and remand for another PCR hearing at which defendant's arguments will be squarely placed before the court and the entire trial transcript furnished to the judge.

Reversed and remanded for a new PCR hearing. We do not retain jurisdiction.