STATE OF NEW JERSEY v. MAXIE CINTRON

NOT FOR PUBLICATION WITHOUT THE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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