                                NOT FOR PUBLICATION WITHOUT THE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-3675-18T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

KHIRY J. WALKER,

     Defendant-Appellant.
_____________________________

                   Submitted June 3, 2020 – Decided June 22, 2020

                   Before Judges Koblitz and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cumberland County, Indictment No. 12-12-
                   1117.

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

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Debra Grace Simms, Deputy Attorney
                   General, of counsel and on the brief).

PER CURIAM
        Defendant Khiry J. Walker appeals from the December 17, 2018 order

denying his petition for post-conviction relief (PCR) following an evidentiary

hearing. A jury convicted defendant of fourth-degree criminal trespass, N.J.S.A.

2C:18-3(a). Defendant contends his trial counsel erred by failing to object to

the State's personal opinions expressed in its opening and summation, not

meeting with him sufficiently before trial to discuss his case, and not filing a

direct appeal. Because defendant demonstrated he asked for an appeal that was

not filed, we reverse and allow defendant to file a belated notice of appeal.

        Defendant and his co-defendant, Ryan A. Askins, were jointly charged

with a July 2012 armed home invasion in a ten-count indictment. Defendant

was charged with the following eight counts: attempted second-degree

conspiracy to commit robbery, N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:15-1(a)(1);

first-degree       robbery,      N.J.S.A.      2C:15-1(a)(1);      second-degree

burglary, N.J.S.A. 2C:18-2(a)(1); third-degree terroristic threats, N.J.S.A.

2C:12-3(b); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); third-

degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)1; third-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(2); and second-degree possession of a



1
    This count was dismissed by the prosecutor prior to trial.


                                                                         A-3675-18T4
                                         2
firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). The jury found defendant

guilty only of criminal trespass as a lesser-included offense of burglary.

      More than three years after trial, in August 2017, defendant submitted a

PCR petition. The court ordered an evidentiary hearing to determine whether

defendant was denied his right to an appeal.      After hearing testimony from

defendant and trial counsel, the court denied defendant's PCR petition in its

entirety.

                                        I.

      The State presented the following evidence at the 2014 trial. In July 2012,

defendant's aunt, P.B., who was eight months pregnant, had a birthday party at

her home. The party was attended by multiple family members, including

defendant and her other nephew, Askins. Guests began to leave between 8:30

p.m. and 9:00 p.m., at which time P.B. also left to drive a guest home. Upon

returning ten to fifteen minutes later, she saw defendant and Askins still sitting

outside. She told them she was going to bed and asked them to leave. Defendant

and Askins remained sitting for two minutes before leaving.

      At about 1:00 a.m., P.B. was awakened by a knock on her front door. She

looked through her window to see who was knocking but saw no one. She

returned to bed, but not "even a minute" later, she heard knocking again, this


                                                                         A-3675-18T4
                                        3
time from her back door. The speaker at the door identified himself as her

"Uncle Rock." P.B. testified that although she was not expecting her uncle, he

occasionally "check[ed] up on" her "at about that time." P.B. opened the door

and discovered two men dressed in black. The men were wearing face masks

with hoodies tightly tied around their faces to conceal their identities.

      The men entered P.B.'s house, pointing guns at her and demanding money.

P.B. recognized the men's voices as defendant and Askins. They all moved into

P.B.'s bedroom, where her young grandson was sleeping.             Afraid for her

grandson, P.B. began "struggling" and "fighting" with the men .

      As P.B. "was punching" the men, they fought back and "hit[] [her] in [her]

stomach."    She pulled off their masks and confirmed the assailants were

defendant and Askins. She testified that upon seeing their faces, she said aloud,

"Oh, really, Ryan and Khiry." P.B. fell to the ground, as did her grandson who

fell off the bed. Defendant and Askins asked P.B.'s grandson "where the money

at" and as he was on the floor, defendant hit the child on his leg with a gun.

      P.B called for her son, who was sleeping in the living room. Askins hit

P.B.'s son on the head with his gun, causing him to bleed and resulting in what

P.B. described as "a small hole on the . . . top of his head, right in the center."

Without taking any property, defendant and Askins ran away.


                                                                            A-3675-18T4
                                         4
      Despite the injuries sustained by her son, and having been hit in her

stomach while pregnant, P.B. did not call the police immediately after the

incident. P.B. testified that she "was too upset and scared" to do so. She

contacted the police the following day.

      During the joint jury trial, neither defendant nor Askins testified. P.B.,

and two police officers testified on behalf of the State. P.B.'s grandson was also

scheduled to testify, but he "shut down" prior to his testimony and refused to

enter the courtroom. Both defendant and Askins were convicted only of fourth-

degree trespassing.

      Because by the end of trial defendant had been incarcerated beyond the

maximum eighteen-month sentence for a fourth-degree crime, his trial counsel

waived the preparation of a pre-sentence report. Defendant was sentenced the

same day. Counsel and the court were concerned that defendant might have to

spend more days in jail due to administrative sentence processing. 2 After the

court advised defendant of his right to appeal, counsel unsuccessfully requested

that defendant be immediately released on his own recognizance pending appeal.

      On appeal, defendant raises the following issue:



2
  In fact, defendant testified at the PCR hearing that he remained incarcerated
for an additional week.
                                                                         A-3675-18T4
                                          5
            I. THE LOWER COURT ERRED IN FAILING TO
            FIND THAT DEFENSE COUNSEL WAS
            INEFFECTIVE.

                   A.    DEFICIENCY PRONG.

                   1.   TRIAL COUNSEL WAS INEFFECTIVE
                   IN FAILING TO FILE A DIRECT APPEAL

                   2.   TRIAL COUNSEL WAS INEFFECTIVE
                   IN FAILING TO OBJECT TO THE
                   PROSECUTOR'S OPENING AND
                   SUMMATION

                   3.  TRIAL COUNSEL FAILED TO
                   DISCUSS THE CASE AND MEET WITH HIS
                   CLIENT PRIOR TO HIS TRIAL.

                   B.    PREJUDICE PRONG.

                                        II.

      We use a deferential standard of review when considering the appeal of a

denial of PCR following an evidentiary hearing. State v. Pierre, 223 N.J. 560,

576 (2015). The factual findings made by a PCR court following such a hearing

will be accepted if they are based on "sufficient credible evidence in the record."

Ibid. (quoting State v. Nash, 212 N.J. 518, 540 (2013)). Legal conclusions are

reviewed de novo. Ibid. (quoting Nash, 212 N.J. at 540-41).

      A PCR petitioner must establish the grounds for "relief by a

preponderance of the credible evidence." State v. Goodwin, 173 N.J. 583, 593


                                                                          A-3675-18T4
                                        6
(2002). To sustain that burden, the "petitioner must do more than make bald

assertions that he [or she] was denied the effective assistance of counsel." State

v. Porter, 216 N.J. 343, 355 (2013) (quoting State v. Cummings, 321 N.J. Super.

154, 170 (App. Div. 1999)). Instead, the petitioner must allege and articulate

specific facts that "demonstrate counsel's alleged substandard performance."

Ibid. (quoting Cummings, 321 N.J. Super. at 170).

      "[PCR] is neither a substitute for direct appeal, R. 3:22-3, nor an

opportunity to relitigate cases already decided on the merits, R. 3:22-5." State

v. Preciose, 129 N.J. 451, 459 (1992). Because all criminal defendants have

the constitutional right to the assistance of counsel in their defense, defendants

may bring a PCR claim for ineffective assistance of counsel. U.S. Const. amend.

VI; N.J. Const. art. I, ¶ 10.

      To reverse a conviction based on ineffective assistance of counsel, a

defendant must demonstrate that: (1) "counsel's performance was deficient" and

(2) counsel's "deficient performance prejudiced the defense . . . as to deprive the

defendant of a fair trial." Strickland v. Washington, 466 U.S. 668, 687 (1984);

see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part

test in New Jersey). To succeed on a claim for ineffective assistance of counsel,

a defendant must establish both prongs of the Strickland test. Strickland, 466


                                                                          A-3675-18T4
                                        7
U.S. at 687. Under the first prong, counsel's representation must be objectively

unreasonable. Pierre, 223 N.J. at 578. Under the second prong, a "reasonable

probability [must exist] that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Id. at 583 (quoting Strickland,

466 U.S. at 694).

                                        III.

      Defendant argues that his trial counsel's lack of sufficient pre-trial contact

with defendant and failure to object to the State's personal opinions expressed

in its opening and summation require reversal. He takes issue with the following

language from the State's opening:

                  Imagine, if you will, that you're sleeping one
            night. And, you hear a knock on your back door. And,
            a person that you're familiar with saying who it is and
            asking to use the phone.

                   And, this doesn't surprise you, you know this
            person. So, you go to the back door, and you open up
            the back door. But, when you open the back door, it's
            not this person that you know, it's two people, dressed
            in black, with their hoodies on, so you can only see their
            eyes. . . .

                  Now you might think that this is part of a
            nightmare, that you're still sleeping, that this isn't real.

      As to the summation, defendant argues that the State's repeated remarks

to the jury to put themselves in P.B.'s situation were prejudicial. He notes that

                                                                           A-3675-18T4
                                         8
the State also improperly said that P.B. was "subjecting herself to ridicule, to

thorough and extensive cross-examination, to alienation from her family. That's

what she gets out of this."

       "The scope of the State's opening statement is limited to the 'facts [it]

intends in good faith to prove by competent evidence.'" State v. Wakefield, 190

N.J. 397, 442 (2007) (quoting State v. Hipplewith, 33 N.J. 300, 309

(1960)). Similarly, in summation, the State is "confined to the facts in evidence

and the reasonable inferences which may be drawn therefrom." State v. Perry,

65 N.J. 45, 48 (1974). A State's misconduct will only be reversed, however,

when "the misconduct was so egregious that it deprived defendant of a fair

trial." Wakefield, 190 N.J. at 442-43 (quoting State v. DiFrisco, 137 N.J. 434,

474 (1994)).

       To the extent the State's opening and summation went outside proper

bounds, it did not constitute ineffective assistance of trial. The jury was

instructed that "what the attorneys [said was] not . . . evidence."

       Defendant also argues that his "trial counsel's failure to regularly meet

with   [him]   was   detrimental    to   the   development    of      his   case and

defense." Defense counsel was a "pool" attorney retained by the Office of the

Public Defender (OPD) to represent defendant.         Defendant represents that,


                                                                             A-3675-18T4
                                         9
although he sent the OPD a letter in January 2014, complaining of his counsel's

failure to meet him and prepare for trial, the OPD refused to replace his

attorney. Because counsel only met with him "through the window in jail,"

defendant asserts his counsel was not reasonably diligent and failed to ensure

that he could make informed decisions. Defendant points to no way that this

prejudiced his trial.

       Our Supreme Court explained "that it is not the frequency of consultation

that reveals whether a defendant has been effectively denied effective l egal

assistance. Rather, the proper inquiry is whether as a result of that consultation,

counsel was able properly to investigate the case and develop a reasonable

defense." State v. Savage, 120 N.J. 594, 617 (1990). As noted by the PCR court,

given that "defendant was originally charged with a second[-]degree armed

robbery, and was found guilty of fourth[-]degree trespassing," defendant's trial

counsel "obtain[ed] a very good outcome." Counsel was not ineffective in his

pre-trial or trial representation.

                                       IV.

      Contrary to the court's finding, however, defendant did demonstrate by a

preponderance of the evidence that he sought an appeal, which was not pursued.

Pursuant to Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000), prejudice may be


                                                                          A-3675-18T4
                                       10
presumed from counsel's forfeiture of defendant's right to appeal. We therefore

grant defendant the right to appeal.

       The Supreme Court of the United States explained in Flores-Ortega "that

a lawyer who disregards specific instructions from the defendant to file a notice

of appeal acts in a manner that is professionally unreasonable." 528 U.S. at

477.   Therefore, "when counsel's constitutionally deficient performance

deprives a defendant of an appeal that he otherwise would have taken, the

defendant has made out a successful ineffective assistance of counsel claim

entitling him to an appeal." Id. at 484; State v. Carson, 227 N.J. 353, 354-55

(2016) (summarily remanding the case, with the agreement of the State, and

granting permission to defendant to file an appeal because defendant requested

an appeal after trial and no appeal was filed); State v. Jones, 446 N.J. Super. 28,

32-34 (App. Div. 2016) (holding that the strength of appellate issues are

irrelevant when determining whether to grant a defendant an appeal when his

initial request was ignored).

       The PCR court held an evidentiary hearing to determine whether

defendant did in fact inform his counsel that he wanted to file a direct

appeal. Defendant testified during the evidentiary hearing that he told his

counsel to do so "off the record" in "an outburst," immediately after the verdict


                                                                          A-3675-18T4
                                       11
was announced. The PCR court read into the record what it believed was the

"outburst" defendant was referencing. It noted that upon counsel asking the

court to advise defendant of his right to appeal, defendant exclaimed,

"(Indiscernible) fucking find me guilty. No bro. How they fucking find me

guilty on a fucking charge that a fourth[-]degree trespass, I wasn't even

trespassing."

      The PCR court acknowledged that because some of defendant's

conversation with his counsel "was not discernible by the transcriber," it could

not "say, with any certainty, what that conversation was, other than what was on

the record," and found trial counsel's testimony that he could not remember

whether he was specifically asked to appeal credible.

      The PCR court determined that had counsel, "a competent and thorough

attorney," been expressly informed by defendant that he wished to seek a direct

appeal, counsel would have filed the "[forty-five] minutes to an hour" worth of

"minimum . . . paperwork." If he had filled out the proper paperwork reflecting

defendant wanted to appeal, it would be forwarded to the OPD to pursue that

appeal. Counsel had no recollection of whether his client had asked for an

appeal or not. He did not have access to his file and testified , referring to




                                                                        A-3675-18T4
                                      12
defendant's claim that he had requested an appeal: "I don't dispute what he says.

I don't have any recollection."

      At the end of trial defendant angrily expressed his dissatisfaction with the

verdict. Additionally, counsel asked that defendant be released on his own

recognizance pending appeal. In spite of this evidence, the PCR court found

that defense counsel's skill and experience weighed convincingly against the

claim that defendant had sought an appeal. The court did not sufficiently

consider that counsel could have made an error, as we all do from time to time.

Counsel testified he obtained a "great result" for defendant. This result could

have caused counsel with a "busy" practice to inadvertently overlook his client's

wish to appeal. Or counsel could have processed the appeal and a glitch in the

OPD caused the failure. Defendant's testimony that he asked his lawyer to

appeal was not rebutted. His comments after the verdict and his attorney's

request for release pending appeal support his testimony. Thus, the PCR court

did not have "sufficient credible evidence in the record" to find that defendant

did not seek an appeal. See Pierre, 223 N.J. at 576 (quoting Nash, 212 N.J. at

540-41).




                                                                         A-3675-18T4
                                      13
      We reverse the decision denying defendant an appeal. Defendant has

forty-five days from the date of this decision to file a notice of appeal of his

conviction as within time. The transcript has already been ordered.

      Reversed. We do not retain jurisdiction.




                                                                       A-3675-18T4
                                      14
