Opinion
A-3636-20
11-07-2022
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN R. AUXER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David J. Reich, Designated Counsel, on the brief). William Reynolds, Atlantic County Prosecutor, attorney for respondent (John J. Santoliquido, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2022
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 16-08-1933.
Joseph E. Krakora, Public Defender, attorney for appellant (David J. Reich, Designated Counsel, on the brief).
William Reynolds, Atlantic County Prosecutor, attorney for respondent (John J. Santoliquido, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Sumners and Berdote Byrne.
PER CURIAM
Defendant Brian Auxer appeals the denial of his post-conviction relief (PCR) petition, claiming ineffective assistance of both his trial counsel and appellate counsel. Appellate counsel appealed his sentence but did not appeal his conviction. We conclude the PCR court's denial of Auxer's ineffective assistance of appellate counsel claim for failing to appeal the conviction was in error and reverse. Auxer is entitled to file an appeal of his conviction within forty-five days of the date of this order.
The record before us demonstrates Auxer moved in with his mother, who was staying at the victim's home, after losing his job. A jury found Auxer beat the victim during an argument, punching her face and breaking her nose and some of her ribs. On June 27, 2018, Auxer was found guilty of second-degree aggravated assault pursuant to N.J.S.A. 2C:12-1(b) and was later sentenced to eight years imprisonment, eighty-five percent to be served pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. At sentencing and on appeal of the sentence, he retained private counsel. We affirmed his sentence on January 9, 2019, on our excessive sentencing oral argument calendar.
Auxer moved for discovery of the victim's medical records in March 2021. On March 31, 2021, his motion to compel discovery was denied. On June 3, 2021, his pro se petition for PCR was denied without an evidentiary hearing.
Before us, Auxer claims several mistakes made by prior trial and appellate counsel prejudiced him, including: 1) failure to object to the reference of blood evidence at trial because the police did not collect blood evidence; 2) failure to seek disqualification of the prosecutor; 3) failure to investigate the victim's alleged prior false allegations; 4) failure to object to the state's prejudicial opening remarks; 5) failure to seek one degree lower in sentencing; 6) failure to advise him he could speak at sentencing and call witnesses; 7) counsel's assertion of defendant's mental illness that he did not consent to; 8) admission of petitioner's prior convictions at sentencing and appeal of the sentence; and 9) appellate counsel's failure to file a notice of appeal.
When petitioning for PCR, a defendant must establish, by a preponderance of the credible evidence, he is entitled to the requested relief. State v. Echols, 199 N.J. 344, 357 (2009). To sustain this burden, the petitioner must allege and articulate specific facts "which, if believed, would provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
Both the Sixth Amendment of the United States Constitution and Article 1, Paragraph 10 of our State Constitution guarantee the right to effective assistance of counsel at all stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 686 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Our Supreme Court has adopted the two-part test articulated in Strickland to determine whether a defendant has received ineffective assistance of counsel. Fritz, 105 N.J. at 58. A defendant may seek PCR pursuant to this standard if the defendant shows 1) "[defendant's] counsel's performance was deficient[,]" and 2) this "deficient performance prejudiced the defense." Id. at 52 (quoting Strickland, 466 U.S. at 687).
Firstly, a defendant must demonstrate "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Reviewing courts employ a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
Secondly, the defendant must demonstrate "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. "Prejudice is not to be presumed" but must be affirmatively proven by the defendant. State v. Gideon, 244 N.J. 538, 551 (2021).
Auxer certifies "[a]ppellate counsel was hired to appeal my conviction. Instead, he only appealed the sentence." The State does not dispute this assertion, instead arguing "a defendant does not have a constitutional right to have appellate counsel raise every non-frivolous issue that defendant requests on appeal." State v. Gaither, 396 N.J.Super. 508, 515 (App. Div. 2007). In this case, the State does not dispute Auxer requested appeal of his conviction and appellate counsel did not comply.
"The right to effective assistance includes the right to the effective assistance of appellate counsel on direct appeal." State v. O'Neil, 219 N.J. 598, 610-11 (2014); accord State v. Guzman, 313 N.J.Super. 363, 374 (App. Div. 1998). In determining whether trial counsel was constitutionally ineffective by not filing a notice of appeal, a trial court must first decide whether the defendant requested trial counsel to appeal his conviction or sentence. See State v. Jones, 446 N.J.Super. 28, 33 (App. Div. 2016). A defendant who requested an appeal be filed "is not required to show he 'might have prevailed' in his forfeited appeal." Ibid. (quoting Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000)). "In defining the reach of the Sixth Amendment, the Supreme Court has held that 'a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.'" Id. at 32 (quoting Flores-Ortega, 528 U.S. at 477). The failure to file a notice of appeal, contrary to a defendant's stated desire to appeal, "cannot be labeled a strategic decision; 'filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes.'" Ibid. (quoting Flores-Ortega, 528 U.S. at 477). "[P]rejudice is presumed when counsel has failed to file an appeal requested by a defendant . . . ." Id. at 37.
Without first determining whether Auxer requested appellate counsel file an appeal of his conviction, the PCR court found "there was no basis for appellate counsel to have challenged the trial court's ruling . . . ." That finding fails to make the prerequisite determination as to whether Auxer was denied his right to appeal. Also, the State does not dispute Auxer directed appellate counsel to file a notice of appeal and an evidentiary hearing on this issue is not required. "Flores-Ortega holds that the Sixth Amendment alone demands the defendant receive the appeal to which he was entitled but which was forfeited because his trial attorney failed to heed his direction." Id. at 37 (citing Flores-Ortega, 528 U.S. at 484). Where an attorney fails to file a notice of appeal despite his client's direction, prejudice is presumed and need not be proven pursuant to the Strickland test.
Because the PCR court did not apply the principles enunciated in Flores-Ortega and Jones, we reverse the denial of PCR as to the failure to file an appeal and exercise original jurisdiction, permitting Auxer to file a notice of appeal, seeking review of his conviction, within forty-five days from the date of this opinion as within time. See id. at 37-38; see also State v. Carson, 227 N.J. 353, 354-55 (2016) (finding defendant, who was deprived of his right to appeal, may file an appeal of his conviction and sentence within forty-five days as within time).
Because we are permitting Auxer to file a direct appeal of his conviction, we do not decide whether counsel was ineffective in the other claims raised by him on appeal of the PCR motion. Those issues should be addressed in the direct appeal. We express no opinion as to the likelihood of success on direct appeal.
Reversed. We do not retain jurisdiction.