SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3874-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAXIE CINTRON,

Defendant-Appellant.

_______________________________

Submitted November 6, 2017 - Decided 

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, 

Law Division, Burlington County, Indictment 

No. 10-06-0497.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Monique Moyse, Designated 

Counsel, on the brief).

Scott A. Coffina, Burlington County 

Prosecutor, attorney for respondent (Nicole 

Handy, Assistant Prosecutor, of counsel and 

on the brief).

PER CURIAM

Following the denial of his motion to dismiss those counts 

of a superseding indictment, against him and five others,

charging him with second-degree attempted burglary, N.J.S.A.

NOT FOR PUBLICATION WITHOUT THE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.

December 1, 2017
2 A-3874-15T4

2C:5-1a(1) and N.J.S.A. 2C:18-2a(1); third-degree conspiracy, 

N.J.S.A. 2C:5-2a; and third-degree possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4d; defendant Maxie Cintron 

pled guilty to those charges and to fourth-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5d.1 

Although the plea was not negotiated, it was based on the 

court's representation the sentence would not exceed five years,

eighty-five percent of which would be served before defendant 

could become eligible for parole. Defendant, who was extendedterm eligible, was subsequently sentenced on the burglary count

to five years in State prison subject to the periods of parole 

ineligibility and supervision required by the No Early Release 

Act (NERA), N.J.S.A. 2C:43-7.2; to concurrent five-year NERA 

terms on the conspiracy and possession for unlawful purpose

counts; and to a concurrent eighteen-month term for unlawful 

possession of a weapon. 

Defendant appealed his sentence, which we heard on a

sentencing calendar. See R. 2:9-11. Acknowledging that the 

defendant's five-year term for attempted burglary was the lowest 

term possible without special findings, his counsel argued the 

 

1 The State alleged defendant was part of a burglary ring. He 

was arrested in possession of burglary tools and a three inch 

folding knife behind a home the ring had targeted. 
3 A-3874-15T4

judge should have merged the counts for sentencing purposes. 

The State, although noting merger would have no practical effect

on defendant's sentence, did not oppose a remand to amend the 

judgment of conviction to reflect appropriate mergers. We 

accordingly affirmed the sentence, but remanded for entry of an 

amended judgment to reflect merger of the weapons counts and the 

conspiracy and attempted burglary counts for sentencing 

purposes.

Several months later, defendant filed a timely petition for 

post-conviction relief (PCR), claiming ineffective assistance of 

trial and appellate counsel. Defendant claimed his trial 

counsel was ineffective for failing to have filed various pretrial motions on his behalf, and appellate counsel was 

ineffective for proceeding with the appeal without consulting 

with him as to the issues he wanted raised.

After hearing argument, the judge denied the petition 

without an evidentiary hearing. See State v. Preciose, 129 N.J.

451, 462-64 (1992). The judge rejected defendant's arguments 

that trial counsel was ineffective for having missed arguments 

that would have resulted in dismissal of the indictment and for 

having failed to negotiate a conditional plea. 

The judge also rejected defendant's argument that appellate 

counsel was ineffective for having limited the appeal brought on 
4 A-3874-15T4

defendant's behalf to issues bearing on his sentence. Although 

acknowledging defendant "informed the Office of the Public 

Defender of his desire to appeal all aspects of his case," the 

court concluded defendant could not show a meritorious issue for 

appeal, and thus could not show prejudice under the second prong 

of the Strickland test. See Strickland v. Washington, 466 U.S.

668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 

693, 698 (1984). 

Defendant appeals, raising the following two issues:

POINT ONE

MR. CINTRON IS ENTITLED TO RELIEF ON HIS 

CLAIM THAT HIS TRIAL ATTORNEY RENDERED 

INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING 

TO FILE ADEQUATE MOTIONS TO DISMISS AND 

FAILING TO PRESERVE HIS RIGHT TO APPEAL THE 

DENIAL OF THE MOTIONS TO DISMISS THAT WERE 

FILED. 

POINT TWO

MR. CINTRON IS ENTITLED TO AN EVIDENTIARY 

HEARING ON HIS CLAIM THAT HIS APPELLATE 

ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF 

COUNSEL BY FAILING TO APPEAL HIS 

CONVICTIONS, AS REQUESTED.

Three months after the trial court dismissed defendant's 

PCR petition, we issued our opinion in State v. Jones, holding 

in accordance with Roe v. Flores-Ortega, 528 U.S. 470, 484, 120 

S. Ct. 1029, 1038-39, 145 L. Ed. 2d 985, 999-1000 (2000), that 

when a defendant can show his attorney failed to file an appeal 
5 A-3874-15T4

as directed, prejudice is presumed, and the defendant must be 

permitted the opportunity to file a direct appeal of his 

conviction. State v. Jones, 446 N.J. Super. 28, 30-31 (App. 

Div.), certif. denied, 228 N.J. 72 (2016). The State argues 

Flores-Ortega is not applicable because defendant's appellate 

counsel appealed his sentence, and the law is clear appellate 

counsel is not required to advance every argument, regardless of 

merit, urged by the defendant on appeal, State v. Gaither, 396 

N.J. Super. 508, 515-16 (App. Div. 2007), certif. denied, 194 

N.J. 444 (2008).

We reject the State's argument. In Gaither, appellate 

counsel filed an appeal on Gaither's behalf raising issues as to 

his conviction and sentence. Id. at 511-12. Counsel, however, 

had not consulted with Gaither about those issues because he had 

carelessly written to Gaither about the appeal at an incorrect 

address. Id. at 512. We held appellate counsel's failure to 

communicate with Gaither regarding his appeal fell below 

objective standards of reasonableness, thus satisfying the first 

prong of the Strickland test. Id. at 514. 

Relying, however, on the United States Supreme Court's 

holding in Jones v. Barnes, 463 U.S. 745, 754, 103 S. Ct. 3308, 

3314, 77 L. Ed. 2d 987, 995 (1983), that the Constitution 

imposes no duty "on appointed counsel . . . to raise every 
6 A-3874-15T4

'colorable' claim suggested by a client," we declined to hold it 

a per se violation of the guarantee of effective counsel. 

Gaither, supra, 396 N.J. Super. at 515-16. Instead, we required 

Gaither to prove prejudice in accord with the second prong of 

Strickland. Id. at 513-14. Because Gaither could not show how 

appellate counsel's argument had been deficient or what he would 

have done differently had Gaither been able to consult with him, 

we declined relief. Id. at 514-15. 

Contrary to the State's assertion, this is not a case in 

which the failure of appellate counsel to consult led to 

defendant's dissatisfaction with the issues raised in his behalf 

on appeal of his conviction as in Gaither. Defendant filled out 

the Office of the Public Defender's "Appeal Request" form. That 

form asks the defendant to direct the Public Defender regarding 

the filing of an appeal by checking one of three boxes as 

follows:

I wish to appeal my entire case including 

the sentence received.

I wish to appeal only the sentence imposed 

by the Judge.

At this time I do not wish the Public 

Defender to take further action regarding my 

case.

Defendant checked the first box, thereby directing the Public 

Defender to appeal both his conviction and his sentence. 
7 A-3874-15T4

It is undisputed the Public Defender limited defendant's 

appeal to the propriety of his sentence in derogation of 

defendant's express direction. In doing so, counsel forfeited 

defendant's right to raise any issue challenging his conviction. 

Appellate counsel's failure to appeal defendant's conviction 

after defendant directed him to do so makes this case one 

controlled by Jones, not Gaither, notwithstanding appellate 

counsel's successful pursuit of the appeal of defendant's 

sentence. See also State v. Carson, 227 N.J. 353, 354 (2016)

(acknowledging as "controlling case law" the holding of FloresOrtega, supra, 528 U.S. at 483, 120 S. Ct. at 1038, 145 L. Ed.

2d at 999, "that when counsel's deficient performance 'led not 

to a judicial proceeding of disputed reliability, but rather to 

the forfeiture of a proceeding itself [,]' . . . the 'denial of 

the entire judicial proceeding . . . demands a presumption of 

prejudice'").

The denial of defendant's PCR petition is reversed and he 

is permitted forty-five days from the date of this opinion to 

file an appeal limited to his conviction.

Reversed.