SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3117-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY BURROWS,

Defendant-Appellant.

________________________

Submitted December 17, 2019 - Decided 

Before Judges Fisher and Accurso.

On appeal from the Superior Court of New Jersey, 

Law Division, Essex County, Indictment No. 

13-04-0751.

Joseph E. Krakora, Public Defender, attorney for 

appellant (James D. O'Kelly, Designated Counsel, on 

the briefs).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Frank J. Ducoat, 

Special Deputy Attorney General/Acting Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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 31, 2019
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In order to resolve an indictment for first-degree murder and weapons 

offenses, defendant Anthony Burrows pleaded guilty in 2014 to aggravated 

manslaughter and was sentenced in accordance with his agreement to 

seventeen years in State prison subject to the periods of parole ineligibility and 

supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. Over 

two years later, he wrote to his trial counsel to advise he was "considering 

submitting an appeal or . . . a Motion for Reconsideration," but had lost "some 

of [his] legal material" in a prison move. He accordingly asked counsel for a 

"courtesy copy of the discovery" in his case.

Eighteen months later, he filed a pro se petition for post-conviction 

relief, attaching that letter to his plea counsel and asserting:

(1) ineffective assistance of counsel;

(2) motions to suppress not answered;

(3) this motion past statute of limitation due to 

ineffective counsel (document attached of lost 

paperwork); and 

(4) constitutional violations.

The court appointed counsel, who filed a brief on defendant's behalf "in 

support of and in supplement" to his petition but did not amend the petition or 

file a supplemental certification. Although counsel wrote that "[a]ll points in 
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the brief are included in defendant's assertions," she raised only two points. 

The brief urged defendant's counsel had been ineffective "because counsel did 

not investigate [defendant's] alibi witness and did not file his appeal."

At oral argument on the petition, counsel began by confirming with 

defendant that he'd received a copy of her brief, the State's brief and the 

investigation results because they had been returned to her "several times," 

apparently as a result of being misaddressed. When defendant confirmed he'd 

"just got" the materials, counsel asked him whether there was "[a]nything [he] 

wanted [her] to argue differently, in addition to what [she'd] already argued in 

the brief." The transcript reflects defendant responded, "uh-uh." Defendant 

was not queried further. Because counsel elected to rely on their respective 

briefs, there was no oral argument. 

Instead, the judge put a decision on the record, subsequently 

memorialized in a written opinion, denying the petition as without merit. As 

to counsel's alleged failure to investigate an alibi, the judge noted defendant 

had nowhere claimed to actually have an alibi. He further observed that five 

people, all of whom knew defendant, put him in the vicinity of the crime at the 

time of the murder and two of those five identified defendant as the shooter. 
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The judge likewise noted defendant had not asserted that he actually 

directed his attorney to file an appeal on his behalf, but only that he wanted to 

appeal and that his counsel had not assisted him in doing so. The judge found 

there would be no reason for counsel to have filed an appeal on defendant's 

behalf here without having been asked or directed to do so. See Roe v. FloresOrtega, 528 U.S. 470, 480 (2000); State v. Jones, 446 N.J. Super. 28, 33-35 

(App. Div. 2016). Finding defendant had failed to identify any error 

committed by his defense counsel, the judge concluded defendant could not 

establish the first prong of the Strickland1standard for establishing an 

ineffective assistance of counsel claim and dismissed the petition. 

Defendant does not assert any error in the judge's decision dismissing 

the petition. Instead, he argues his PCR counsel was plainly ineffective, and 

asks that we remand to permit a new proceeding in which he could assert his 

claims. He styles the issues as follows:

POINT I.

THIS PANEL MUST REVERSE THE PCR COURT'S 

DENIAL OF POST-CONVICTION RELIEF AND 

REMAND THE MATTER FOR A NEW 

PROCEEDING BECAUSE PCR COUNSEL'S 

LEGAL REPRESENTATION FELL BELOW THE 

1

 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
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PROFESSIONAL STANDARD REQUIRED BY R.

3:22-6(d). (not raised below)

POINT II.

AS THE PCR COURT FAILED TO ADJUDICATE 

ALL OF MR. BURROWS' CLAIMS, THIS MATTER 

MUST BE REMANDED FOR A NEW PCR 

PROCEEDING. (not raised below)

Although we would ordinarily be inclined to direct a defendant alleging 

ineffective assistance of PCR counsel to file a new petition in order to permit 

the trial court to consider the claim in the first instance, see R. 3:22-

12(a)(2)(C); State v. Armour, 446 N.J. Super. 295, 317 (App. Div. 2016), we 

will not do so here. It is obvious from the transcript of oral argument that

defendant's counsel had been unable to consult with him in formulating the 

issues to be raised on appeal and, contrary to counsel's representations in her 

brief in support of the petition, she did not assert all of the issues defendant 

raised in his petition. See R. 3:22-6(d); State v. Webster, 187 N.J. 254, 257 

(2006) (reaffirming the holding of State v. Rue, 175 N.J. 1 (2002), that 

counsel's brief on PCR "must advance the arguments that can be made in 

support of the petition and include [the] defendant's remaining claims, either 

by listing them or incorporating them by reference so that the judge may 

consider them"). Further, we are not confident that defendant's "uh-uh" on the 
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record can be taken as an endorsement of counsel's arguments in his behalf and 

abandonment of the issues he raised in his petition.

Although we find no error in the trial judge's opinion dismissing the 

petition, we, nevertheless, vacate the order and grant defendant a new PCR 

proceeding, which shall proceed as a first petition with new counsel, so that he 

might assert whatever claims he has with the assistance of counsel who will 

consult with him, investigate the claims, examine the record, amending the 

petition if necessary, and "fashion the most effective arguments possible."

State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000). We express no 

opinion on the merits of any such claims, as our decision rests solely on the 

failure of PCR counsel to comply with the requirements of Rule 3:22-6(d). 

See State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010); see also Rue, 

175 N.J. at 4. We reject as unwarranted defendant's request that the matter be 

assigned to another judge on remand.

Vacated and remanded for further proceedings in conformity with this 

opinion. We do not retain jurisdiction.