                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-3396-14T3

STATE OF NEW JERSEY,
                                            APPROVED FOR PUBLICATION
           Plaintiff-Respondent,
                                                 June 20, 2016
    v.
                                              APPELLATE DIVISION
DONNELL JONES,

          Defendant-Appellant.
_____________________________________________________

           Submitted May 3, 2016 – Decided June 20, 2016

           Before    Judges      Fisher,      Espinosa      and
           Rothstadt.

           On appeal from the Superior Court of New
           Jersey, Law Division, Middlesex County,
           Indictment Nos. 12-08-1286; 12-08-1290.

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

           Andrew C. Carey, Middlesex County Prosecutor,
           attorney   for   respondent  (Joie   Piderit,
           Assistant Prosecutor, of counsel and on the
           brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    Defendant appeals the denial of his post-conviction relief

(PCR)    petition,   which   asserted   a   denial    of   the     effective

assistance of counsel because his attorney failed to file a
direct appeal from the judgment of conviction.             Because the PCR

judge required — and found absent — proof that defendant was

prejudiced by his counsel's failure to file a direct appeal — in

essence drawing her own conclusion as to whether an appeal would

have been successful — we reverse.           Defendant's sworn statement

that he directed his attorney to file an appeal was undisputed

and, in that circumstance, prejudice is presumed. Roe v. Flores-

Ortega, 528 U.S. 470, 484, 120 S. Ct. 1029, 1038-39, 145 L. Ed.

2d 985, 999-1000 (2000).         Consequently, defendant is entitled to

the restoration of his right to file a direct appeal, ibid.,

which we now permit.

                                      I

    On March 14, 2013, defendant pleaded guilty to first-degree

armed   robbery,     N.J.S.A.    2C:15-1,   and    second-degree     unlawful

possession of a weapon, N.J.S.A. 2C:39-4(a). On May 10, 2013,

defendant was sentenced to a fifteen-year prison term subject to

an eighty-five percent period of parole ineligibility pursuant

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.                       No

appeal was filed on his behalf.

    On March 7, 2014, defendant filed a pro se PCR petition,

alleging he was deprived of the effective assistance of counsel.

Counsel was appointed and a brief filed on defendant's behalf.

Defendant   argued    trial     counsel   failed   to   raise   a   number    of




                                      2                               A-3396-14T3
potential mitigating factors at sentencing, emphasizing counsel

made only the following statement on his behalf at sentencing:

         This is a negotiated plea agreement. And
         we're simply asking the [c]ourt to honor the
         plea agreement and sentence [defendant]
         accordingly.

Defendant also argued he was deprived of his Miranda1 rights when

interrogated by police.    And he claims counsel failed to file an

appeal of the judgment of conviction. In support of this last

assertion,   defendant   filed   a    certification       that   asserted     he

"told [his] attorney [he] wanted to file an appeal but he never

filed it."

    On January 29, 2015, after hearing counsel's argument, the

PCR judge rejected defendant's contentions. Without conducting

an evidentiary hearing, the judge analyzed the urged mitigating

factors and held they would not have been applied2 and, in any

event, they were strongly outweighed by the aggravating factors.

And the judge found no merit in the Miranda contention.

    The judge then rejected the argument that defendant was

deprived of the effective assistance of counsel because a direct

appeal was not filed. Without questioning defendant's undisputed


1
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2
  The same judge    presided     at       the   plea,   sentencing,   and   PCR
proceedings.



                                      3                               A-3396-14T3
assertion that he directed his attorney to file an appeal, the

judge concluded that defendant failed to present "any claim that

would have been meritorious on appeal." In appealing, defendant

argues the judge erred in her disposition of the ineffectiveness

claim regarding counsel's failure to file an appeal.

                                     II

      In     determining   whether       counsel   was   constitutionally

ineffective in failing to file a notice of appeal, the PCR judge

concluded defendant was required to demonstrate the presence of

both prongs of the test enunciated in Strickland v. Washington,

466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed.

2d 674, 693, 698 (1984), i.e., that counsel's performance fell

below an objective standard of reasonableness (the first prong),

and   that     counsel's   deficient       performance   prejudiced    the

defendant (the second prong). See also State v. Fritz, 105 N.J.

42, 58 (1987).3 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." Flores-Ortega,

3
  For purposes of the state constitutional guarantee of the right
to counsel, N.J. Const. art. I, ¶ 10, the Fritz Court also
expressed its adherence to the Supreme Court's recognition in
United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039,
2046, 80 L. Ed. 2d 657, 667 (1984), of a presumption of
prejudice in some circumstances. See Fritz, supra, 105 N.J. at
53, 58.



                                     4                           A-3396-14T3
supra, 528 U.S. at 477, 120 S. Ct. at 1035, 145 L. Ed. 2d at

995. Such a failure 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.

     In denying relief, the PCR judge concentrated on the second

prong,4     concluding    that   defendant    failed   to    show    prejudice

because he did not present any claim that, in the judge's view,

would     have   been    meritorious   on    appeal.   The   judge    further

observed that defendant failed to assert he was innocent of the

charges.5

     To be sure, most PCR petitions require consideration of the

facts asserted in support of both prongs without a presumption

as to either.           In many cases, an attorney's error "even if

professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on

the judgment."      Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct.

366, 369, 88 L. Ed. 2d 203, 209 (1985).           But the error here did


4
  The State did not dispute defendant's contention that he
directed his attorney to file an appeal, and the judge did not
express doubt about defendant's undisputed factual assertion.
We, therefore, conclude that the first prong was met.
5
  The judge stated in her oral decision the following: "As to
trial counsel's failure to file an appeal, I did not read any
claim of innocence in [his] brief."



                                       5                              A-3396-14T3
not lead "to a judicial proceeding of disputed reliability"; it

led to a "forfeiture of the proceeding itself."                   Flores-Ortega,

supra, 528 U.S. at 483, 120 S. Ct. at 1038, 145 L. Ed. 2d at

999.   This    circumstance      "demands      a    presumption   of   prejudice."

Ibid.; see also Peguero v. United States, 526 U.S. 23, 28, 119

S. Ct. 961, 965, 143 L. Ed. 2d 18, 24 (1999); Hodge v. United

States, 554 F.3d 372, 380 (3d Cir. 2009). Consequently, the

Flores-Ortega Court concluded that a defendant who has requested

an appeal is not required to show he "might have prevailed" in

his forfeited appeal, 528 U.S. at 484, 120 S. Ct. at 1038, 145

L. Ed. 2d at 999, and held that:

              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 entitling
              him to an appeal.

              [Id. at 484, 120 S. Ct. at 1039, 145 L. Ed.
              2d at 1000.]

       In short, it is only when a defendant has not conveyed his

wishes      regarding    the   filing     of   an    appeal   that     we   consider

"'whether counsel's assistance was reasonable considering all

the circumstances,'" id. at 478, 120 S. Ct. at 1035, 145 L. Ed.

2d at 995 (quoting Strickland, supra, 466 U.S. at 688, 104 S.

Ct.    at   2065,   80   L.    Ed.   2d   at   694),    and   whether       counsel's

deficient performance "actually cause[d] the forfeiture of the




                                          6                                  A-3396-14T3
defendant's appeal," id. at 484, 120 S. Ct. at 1038, 145 L. Ed.

2d    at    999.   Because       the    prosecution         did   not    dispute        that

defendant directed his attorney to file an appeal and because

the   PCR    judge     did    not     apply       Flores-Ortega's       presumption        of

prejudice in light of that undisputed fact, we reverse.

                                             III

      Although        we      believe        Flores-Ortega's        presumption            of

prejudice      when     applied       here    ends    our     inquiry,       the    Court's

additional comments may have clouded the matter.                        The Court, for

example, stated that "whether a given defendant has made the

requisite showing will turn on the facts of a particular case,"

and observed that evidence of "nonfrivolous grounds for appeal

or that the defendant in question promptly expressed a desire to

appeal      will      often      be    highly        relevant     in      making        this

determination." Id. at 485, 120 S. Ct. at 1039, 145 L. Ed. 2d at

1000 (emphasis added).

      These comments arguably suggest that some defendants may be

required     to    demonstrate        "nonfrivolous      grounds       for    appeal"      to

succeed on an ineffectiveness claim. By the same token, even as

it    repeated      the      phrase     "nonfrivolous         grounds        for    appeal"

throughout its continued discussion, the Court in Flores-Ortega,

supra, 528 U.S. at 486, 120 S. Ct. at 1039-40, 145 L. Ed. 2d at

1001,      emphasized      its   earlier      holding    in    Rodriquez       v.    United




                                              7                                     A-3396-14T3
States, 395 U.S. 327, 330, 89 S. Ct. 1715, 1717, 23 L. Ed. 2d

340,    344   (1969),     which      recognized           that    defendants       whose

attorneys     have    frustrated     their        right    to    appeal    "should    be

treated exactly like any other appellants" and "not be given an

additional     hurdle    to    clear    just       because       their    rights    were

violated at some earlier stage in the proceedings." Yet, in

downplaying     the     significance         of     whether       a   defendant      has

presented "nonfrivolous grounds for appeal," the Court explained

that it would be "unfair to require an indigent, perhaps pro se,

defendant to demonstrate that his hypothetical appeal might have

had merit before any advocate has ever reviewed the record . . .

in search of potentially meritorious grounds for appeal," while

simultaneously reiterating its holding that the defendant need

only "demonstrate that, but for counsel's deficient conduct, he

would have appealed." Flores-Ortega, supra, 528 U.S. at 486, 120

S. Ct. at 1039-40, 145 L. Ed. 2d at 1001.

       We   cannot    ignore   the     fact       that    the    Court's   additional

comments could be interpreted as shifting from "a presumption of

prejudice" in all cases where a defendant has requested but not

obtained a direct appeal to, on the other hand, requiring an

inquiry into the merits of the forfeited appeal if a defendant

is not "indigent" or "perhaps" not "pro se."                      Ibid.    Unlike the

defendant referred to in this part of the Flores-Ortega Court's




                                         8                                     A-3396-14T3
opinion, defendant here only briefly represented himself; once

his PCR petition was filed, an attorney was appointed and given

the opportunity to review and supplement the record — the things

that the Flores-Ortega Court found lacking in most cases when it

adopted its presumption of prejudice standard.

      All    this      generates   concern        for   us   about       whether     it   is

enough for a defendant, who has been given the assistance of PCR

counsel, to rely solely on the undisputed fact that he requested

the   filing      of     a    direct     appeal     that     was     not    instituted.

Ultimately, however, we view the Court's added explanation as

bearing     on    a    situation   not     present       here;     the     Flores-Ortega

Court's     additional        language    should    be     viewed    as     the    Court's

response     to       lower   federal    courts     that     had    held     it    per    se

unreasonable for an attorney not to file a direct appeal unless

it could be shown the defendant instructed the attorney not to

appeal.      See Hodge, supra, 554 F.3d at 379.                      As suggested by

Hodge, consideration of matters such as whether the defendant

was "indigent, perhaps pro se," Flores-Ortega, supra, 528 U.S.

at 486, 120 S. Ct. at 1040, 145 L. Ed. 2d at 1001, and whether

the defendant could present "nonfrivolous grounds for appeal,"

id. at 485, 120 S. Ct. at 1039, 145 L. Ed. 2d at 1000, are

considerations for cases "where the defendant neither instructs

counsel to file an appeal nor asks that an appeal not be taken,"




                                           9                                       A-3396-14T3
id. at 478, 120 S. Ct. at 1035, 145 L. Ed. 2d at 995. See Hodge,

supra, 554 F.3d at 379.

      Because the prosecution did not dispute defendant's sworn

statement    that      he   told     his    attorney         to     file      an    appeal,     we

conclude that the Court's additional discussion about whether a

defendant may, at times, need to show he was indigent, or pro

se,   or     possessed           "nonfrivolous            grounds       for        appeal,"     is

inapplicable here.

                                                IV

      We would also add that Flores-Ortega is limited to the

application of the Sixth Amendment to the matter at hand; that

decision does not preclude our courts from determining that the

state constitutional right to counsel, N.J. Const. art. I, ¶ 10,

provides greater rights or a more liberal allowance of post-

conviction    relief        in    similar       circumstances.             We      would    note,

however, that our state jurisprudence has closely adhered to the

Sixth Amendment's contours. See Fritz, supra, 105 N.J. at 58

(concluding      that       "[e]ven        if        we    are    not      constitutionally

compelled to adopt the Strickland-Cronic test, the development

of the law in this area impels" recognition of "the soundness

and   efficacy    of    both       the   substance          and     formulation        of     this

federal     Constitutional          standard          in    defining       our       own    State

Constitutional guarantee of effective assistance of counsel").




                                                10                                      A-3396-14T3
       In short, there is no existing evidence that our Supreme

Court would do other than follow Flores-Ortega.6 And defendant

has not argued that an approach more liberal than that described

in    Flores-Ortega    should      be    applied   to    the    extent   his   PCR

petition   rested     on   state   constitutional        grounds.    Despite   the

uncertainty   arising      from    the    Flores-Ortega        Court's   comments

about whether a defendant must present "nonfrivolous grounds for

appeal" in these or similar circumstances, we ultimately rest

our   decision   on    the   Court's      clear    and    broad     holding    that

prejudice is presumed when counsel has failed to file an appeal

requested by a defendant; in our view, Flores-Ortega holds that

the Sixth Amendment alone demands that the defendant receive the

appeal to which he was entitled but which was forfeited because


6
  We are mindful the Supreme Court recently granted certification
to consider the ineffectiveness standard in a similar setting.
See State v. Carson, __ N.J. __ (2016). Certainly, state courts
cannot apply a more constricted standard than that set forth in
Flores-Ortega; the nation's highest court establishes "the floor
of constitutional protection." State v. Hempele, 120 N.J. 182,
197 (1990). A state court, however, may apply a more expansive
view when interpreting its own constitution and, when it does,
"manifest[s] no disrespect for" the United States Supreme Court
"but merely honor[s] our 'obligation to uphold [our] own
constitution.'" Ibid. (quoting Justice Pollock's concurring
opinion in State v. Lund, 119 N.J. 35, 53 (1990)). Because our
Supreme Court will soon consider these issues, because the issue
was not briefed, and because its resolution is not necessary for
today's decision, we withhold consideration of whether our state
constitution imposes a per se presumption of prejudice when an
appeal is not filed on behalf of a defendant prosecuted in our
courts.



                                         11                              A-3396-14T3
his trial attorney failed to heed his direction. 528 U.S. at

484, 120 S. Ct. at 1039, 145 L. Ed. 2d at 1000.

                                        V

    Because       the   PCR     judge   did       not    apply    the     principles

enunciated   in    Flores-Ortega,       we    reverse     the    denial      of   post-

conviction    relief7     and       exercise      original       jurisdiction        in

permitting   defendant        the   right    to   file    a   notice    of    appeal,

seeking review of the judgment of conviction, within forty-five

days from today's date.




7
  Even if Flores-Ortega could be interpreted as imposing on
defendant a burden of presenting "nonfrivolous grounds for
appeal," this is not the standard the PCR judge applied. The
judge instead found defendant's arguments lacking in merit; an
argument that is without merit is not necessarily a frivolous
argument. Perhaps this circumstance alone demonstrates that a
per se rule of prejudice is the more salutary approach. In that
case, the direct appeal would be permitted and this court would
consider that appeal on its merits, rather than adding a layer
or two of litigation that would require the trial judge's
determination of whether a defendant was "indigent, perhaps pro
se" and, if so, whether he possessed "nonfrivolous grounds for
appeal," and then an appeal for our review of those threshold
determinations.    Only then, if the defendant's presentation
passed muster, would the right to appeal the judgment of
conviction be restored. We fail to see how the fair and
efficient administration of justice would be furthered if we
were to insist on these threshold determinations before simply
allowing the forfeited appeal to be filed and considered on its
merits. And we would lastly observe that even if the merit of
the forfeited appeal is to be considered prior to granting post-
conviction relief, in this particular case we would remand for
further development of the issues defendant would pursue on
direct appeal since the record does not permit a full
understanding of defendant's contentions.



                                        12                                    A-3396-14T3
