State v. Quixal, 431 N.J. Super. 502 (App. Div. 2013). Today’s post is a guest post by Jeffrey A. Shooman, one of my colleagues in the Appellate Practice Group at Lite DePalma Greenberg, LLC, dealing with an important criminal law decision by the Appellate Division two days ago:
In this groundbreaking case, the Appellate Division held that prisoners have a constitutional right to counsel in a post-conviction relief (“PCR”) proceeding where the prisoner presents an ineffective assistance of counsel claim that was inappropriately raised (and, thus, not adjudicated) on direct appeal. Defendant Quixal was convicted of first-degree aggravated sexual assault. In an unpublished opinion, the Appellate Division affirmed his conviction, indicating that it would not decide his ineffective assistance of counsel claim on direct review. This claim, the court found, was more appropriately raised in a PCR petition.
In December 2010, defendant filed his first PCR petition. He executed a waiver rejecting the offer of legal assistance from a public defender. This PCR was denied.
In March 2012, defendant filed a second PCR petition, arguing that the first petition had been prepared and filed by a fellow inmate without his consent. Defendant argued that the waiver on the first PCR was invalid because he did not speak English. The PCR court denied this second petition, holding that a claim of ineffective assistance of counsel on the first PCR could not be brought where defendant represented himself.
Speaking through Judge Koblitz, the Appellate Division reversed. The outcome of this case – at the very least, the court’s reasoning – may have turned on the strategy the State took in arguing the appeal, for the State did not argue that the defendant knowingly and intelligently waived his right to counsel. Instead, the State pressed the argument that there is no federal constitutional right to counsel on collateral review (which the Appellate Division had stated was the case, in dictum, in State v. McIlhenny, 333 N.J. Super. 85, 87 n.1 (App. Div. 2000))
The Supreme Court of the United States recently sidestepped the federal constitutional issue in Martinez v. Ryan, 132 S. Ct. 1309 (2012). The Court noted that where a state scheme does not allow for raising an ineffective assistance claim on direct review, and because Douglas v. California, 372 U.S. 353 (1963), holds that states must constitutionally appoint counsel on a prisoner’s first appeal, it might be constitutionally required to provide for counsel in collateral proceedings where it is the prisoner’s, in essence, first appeal. Nevertheless, the Martinez court decided the case on other grounds.
The Appellate Division, noting the Martinez case, as well as citing Judge Wefing’s powerful statement, in State v. Parker, 212 N.J. 269, 278-79 (2012), about the critical role PCR proceedings play in our criminal justice system, concluded that “defendants have a State constitutional right to counsel when raising ineffective assistance of trial counsel for the first time, whether raised on direct appeal or by way of PCR.” Buttoning up the opinion, the court held that the waiver defendant executed was not knowing and intelligent. The court remanded for the appointment of counsel and reconsideration of the PCR petition.
Dissenting in Martinez, Justice Scalia wrote that the Court’s “pretended avoidance of requiring States to appoint collateral-review counsel is a sham” (footnote omitted). Whatever the Court’s reluctance was in finding such a right, the states are free to act according to their own constitutions. New Jersey has now decided that its constitution mandates the appointment of counsel on collateral review where the ineffective assistance claim was not properly brought on direct appeal. Given the gravity of the holding, this may not be the last we hear of this case.
My thanks to Jeff for these insights.