STATE OF NEW JERSEY v. ANTHONY BURROWS

NOT FOR PUBLICATION WITHOUT THE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-3117-18T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ANTHONY BURROWS,

     Defendant-Appellant.
________________________

                   Submitted December 17, 2019 - Decided December 31, 2019

                   Before Judges Fisher and Accurso.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Essex County, Indictment No.
                   13-04-0751.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (James D. O'Kelly, Designated Counsel, on
                   the briefs).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Frank J. Ducoat,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      In order to resolve an indictment for first-degree murder and weapons

offenses, defendant Anthony Burrows pleaded guilty in 2014 to aggravated

manslaughter and was sentenced in accordance with his agreement to

seventeen years in State prison subject to the periods of parole ineligibility and

supervision required by the No Early Release Act,  N.J.S.A. 2C:43-7.2. Over

two years later, he wrote to his trial counsel to advise he was "considering

submitting an appeal or . . . a Motion for Reconsideration," but had lost "some

of [his] legal material" in a prison move. He accordingly asked counsel for a

"courtesy copy of the discovery" in his case.

      Eighteen months later, he filed a pro se petition for post-conviction

relief, attaching that letter to his plea counsel and asserting:

             (1) ineffective assistance of counsel;

             (2) motions to suppress not answered;

             (3) this motion past statute of limitation due to
                 ineffective counsel (document attached of lost
                 paperwork); and

             (4) constitutional violations.

      The court appointed counsel, who filed a brief on defendant's behalf "in

support of and in supplement" to his petition but did not amend the petition or

file a supplemental certification. Although counsel wrote that "[a]ll points in


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the brief are included in defendant's assertions," she raised only two points.

The brief urged defendant's counsel had been ineffective "because counsel did

not investigate [defendant's] alibi witness and did not file his appeal."

      At oral argument on the petition, counsel began by confirming with

defendant that he'd received a copy of her brief, the State's brief and the

investigation results because they had been returned to her "several times,"

apparently as a result of being misaddressed. When defendant confirmed he'd

"just got" the materials, counsel asked him whether there was "[a]nything [he]

wanted [her] to argue differently, in addition to what [she'd] already argued in

the brief." The transcript reflects defendant responded, "uh-uh." Defendant

was not queried further. Because counsel elected to rely on their respective

briefs, there was no oral argument.

      Instead, the judge put a decision on the record, subsequently

memorialized in a written opinion, denying the petition as without merit. As

to counsel's alleged failure to investigate an alibi, the judge noted defendant

had nowhere claimed to actually have an alibi. He further observed that five

people, all of whom knew defendant, put him in the vicinity of the crime at the

time of the murder and two of those five identified defendant as the shooter.




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       The judge likewise noted defendant had not asserted that he actually

directed his attorney to file an appeal on his behalf, but only that he wanted to

appeal and that his counsel had not assisted him in doing so. The judge found

there would be no reason for counsel to have filed an appeal on defendant's

behalf here without having been asked or directed to do so. See Roe v. Flores-

Ortega,  528 U.S. 470, 480 (2000); State v. Jones,  446 N.J. Super. 28, 33-35

(App. Div. 2016). Finding defendant had failed to identify any error

committed by his defense counsel, the judge concluded defendant could not

establish the first prong of the Strickland 1 standard for establishing an

ineffective assistance of counsel claim and dismissed the petition.

       Defendant does not assert any error in the judge's decision dismissing

the petition. Instead, he argues his PCR counsel was plainly ineffective, and

asks that we remand to permit a new proceeding in which he could assert his

claims. He styles the issues as follows:

             POINT I.

             THIS PANEL MUST REVERSE THE PCR COURT'S
             DENIAL OF POST-CONVICTION RELIEF AND
             REMAND THE MATTER FOR A NEW
             PROCEEDING BECAUSE PCR COUNSEL'S
             LEGAL REPRESENTATION FELL BELOW THE


1
    Strickland v. Washington,  466 U.S. 668, 687-88, 694 (1984).
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                                         4
             PROFESSIONAL STANDARD REQUIRED BY R.
             3:22-6(d). (not raised below)

             POINT II.

             AS THE PCR COURT FAILED TO ADJUDICATE
             ALL OF MR. BURROWS' CLAIMS, THIS MATTER
             MUST BE REMANDED FOR A NEW PCR
             PROCEEDING. (not raised below)

      Although we would ordinarily be inclined to direct a defendant alleging

ineffective assistance of PCR counsel to file a new petition in order to permit

the trial court to consider the claim in the first instance, see R. 3:22-

12(a)(2)(C); State v. Armour,  446 N.J. Super. 295, 317 (App. Div. 2016), we

will not do so here. It is obvious from the transcript of oral argument that

defendant's counsel had been unable to consult with him in formulating the

issues to be raised on appeal and, contrary to counsel's representations in her

brief in support of the petition, she did not assert all of the issues defendant

raised in his petition. See R. 3:22-6(d); State v. Webster,  187 N.J. 254, 257

(2006) (reaffirming the holding of State v. Rue,  175 N.J. 1 (2002), that

counsel's brief on PCR "must advance the arguments that can be made in

support of the petition and include [the] defendant's remaining claims, either

by listing them or incorporating them by reference so that the judge may

consider them"). Further, we are not confident that defendant's "uh-uh" on the


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record can be taken as an endorsement of counsel's arguments in his behalf and

abandonment of the issues he raised in his petition.

      Although we find no error in the trial judge's opinion dismissing the

petition, we, nevertheless, vacate the order and grant defendant a new PCR

proceeding, which shall proceed as a first petition with new counsel, so that he

might assert whatever claims he has with the assistance of counsel who will

consult with him, investigate the claims, examine the record, amending the

petition if necessary, and "fashion the most effective arguments possible."

State v. Velez,  329 N.J. Super. 128, 133 (App. Div. 2000). We express no

opinion on the merits of any such claims, as our decision rests solely on the

failure of PCR counsel to comply with the requirements of Rule 3:22-6(d).

See State v. Hicks,  411 N.J. Super. 370, 376 (App. Div. 2010); see also Rue,

 175 N.J. at 4. We reject as unwarranted defendant's request that the matter be

assigned to another judge on remand.

      Vacated and remanded for further proceedings in conformity with this

opinion. We do not retain jurisdiction.




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