NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant appeals from the October 22, 2013 order that granted his petition for post-conviction relief (PCR) and permitted him to file an appeal, as within time, the denial of his suppression motion. Defendant contends that, rather than be given permission to appeal as within time the decision on the motion, the PCR court should have vacated his convictions and ordered a trial. For the reasons that follow, the order is affirmed in part and vacated in part.
On July 27, 2006, defendant was charged in two separate indictments with the following offenses: second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree aggravated assault with a deadly weapon (firearm), N.J.S.A. 2C:12-1(b)(2); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and two counts of fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4).
Following a Miranda1 hearing, the trial court denied defendant's motion to suppress a statement he had given to the police. On April 26, 2007, defendant pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. On June 20, 2007, the court imposed an aggregate sentence of twelve years, with an eighty-five percent period of parole ineligibility.
On June 18, 2008, defendant filed a direct appeal, arguing only that his sentence was excessive. On June 3, 2009, we entered an order affirming the sentence. State v. Van Salter, No. A-002687-07 (App. Div. June 3, 2009). On February 15, 2011, the Supreme Court entered an order that both granted defendant's petition for certification and summarily remanded the matter to the sentencing court to provide a statement of reasons explaining why it imposed a sentence with an extended term of imprisonment. State v. Van Salter, 212 N.J. 490 (2011).
On December 24, 2010, defendant filed a PCR petition and on June 30, 2011, assigned counsel filed an amended petition. Defendant submitted a certification in which he claimed, among other things, that plea counsel advised that he could appeal the decision on his suppression motion even if he pled guilty. Relying upon his attorney's advice, defendant agreed to plead guilty, but only on the condition he could appeal the ruling on his motion. However, at the time defendant pled, counsel failed to preserve defendant's right to appeal that ruling on the record. See R. 3:9-3(f). Thereafter, defendant sought to appeal the denial of the suppression motion, only to discover he was precluded from challenging any issue on appeal but for his sentence.
Finding defendant had made out a prima facie showing of ineffective assistance of counsel, the PCR court conducted an evidentiary hearing. See Rule 3:22-10(b). In that hearing defendant testified consistent with his certification, and plea counsel confirmed that defendant's testimony was accurate. Based upon their testimony, the PCR court found plea counsel had rendered ineffective assistance to defendant. As a remedy, the court ordered that defendant "is entitled to file an appeal nunc pro tunc of the court's ... decision denying his motion to suppress his statement."
Defendant presents the following issue for our consideration in his appeal.
POINT I — BY FINDING THAT THE DEFENDANT HAD ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE INEFFECTIVE ASSISTANCE OF HIS DEFENSE COUNSEL BECAUSE HIS ATTORNEY FAILED TO PRESERVE HIS RIGHT TO APPEAL THE ADVERSE MIRANDA DECISION, THE PCR COURT ERRED BY NOT GRANTING THE DEFENDANT FULL POST-CONVICTION RELIEF BY WAY OF VACATING HIS JUDGMENTS OF CONVICTION AND ORDERING TRIAL.
Defendant's contention is thus limited to challenging the remedy the PCR court ordered to rectify counsel's ineffectiveness. Specifically, defendant argues the court was obligated to vacate his convictions and order a trial. The State had not cross-appealed.
We find no merit in defendant's argument. Although plea counsel's ineffectiveness deprived defendant of his right to challenge on direct appeal the trial court's adverse determination on his motion, counsel's omissions do not justify implementing a remedy that puts defendant in a better position than he would have been had counsel preserved his right to appeal the denial of his motion at the time of his plea. After all, defendant's suggested remedy would bypass a crucial step: appellate review of the trial court's decision on the suppression motion.
Defendant agreed to plead guilty in exchange for, among other things, the right to appeal the decision on the motion. Implicit in that conditional plea agreement was the understanding that, if he did not prevail on that appeal, his guilty plea would remain intact. If the ruling on the motion were reversed, then defendant might have grounds to vacate the guilty plea. But nothing about counsel's ineffectiveness warrants vacating the convictions outright and proceeding to trial.
Defendant's appeal does, however, expose another issue. Rule 3:22-11 provides that
[i]n making a final determination upon a petition [for post-conviction relief], the court shall ... enter a judgment, which shall include an appropriate order or direction with respect to the judgment ... in the conviction proceedings and any appropriate provisions as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or as may otherwise be required.
The remedy the PCR court chose here was to permit defendant to appeal the decision on the suppression motion as within time.
Although we understand the PCR court was endeavoring to afford defendant the benefit of his bargain — the opportunity to appeal the decision on the subject motion — the time within which an appeal may be filed cannot be extended by a trial court but only upon motion to the Appellate Division. R. 2:4-4. Because the PCR court exceeded its jurisdiction when it granted defendant permission to appeal the decision on the suppression motion as within time, we are constrained to vacate that portion of the order.
Rule 2:4-4 does not address extending the time within which to file an appeal under the specific factual circumstances presented here. Although our research did not disclose a decision directly on point, State v. Molina, 187 N.J. 531 (2006), is sufficiently analogous to be applicable here. In Molina, the trial court advised defendant Molina at the time of sentencing that she had forty-five days within which to file an appeal, see Rule 3:21-4(h). Id. at 537 n. 3. Although Molina directed her attorney to file an appeal, her attorney was of the opinion an appeal would be fruitless and failed to file an appeal on defendant's behalf within the forty-five day period. Id. at 536. Defendant subsequently filed an application for leave to appeal as within time. The Court held, prospectively, that
a defendant who has been advised of his right to appeal as provided under R. 3:21-4(h) and fails to prosecute his appeal in a timely manner may be entitled to as within time relief if he satisfies the burden of demonstrating, by his own certification and by a preponderance of the credible evidence, that defendant did request the filing of an appeal in a timely manner and that his then counsel failed to prosecute it.
[Id. at 542.]
Here, the PCR court found following an evidentiary hearing that counsel failed to preserve defendant's right to appeal the ruling on the suppression motion. Like the defendant in Molina, whose attorney failed to file an appeal at her direction, defendant here told plea counsel he was only willing to plead guilty if he could appeal the subject ruling and relied upon counsel to preserve his right to appeal. In our view, plea counsel's omission entitles defendant to file an appeal as within time.
We further observe defendant filed a PCR petition to address counsel's ineffectiveness within five years after the date of entry of the judgment of conviction. See R. 3:22-12(a)(1). The timely filing of that petition preserved his right to appeal the decision on the suppression motion if the PCR court determined plea counsel had been ineffective in the manner alleged by defendant. However, because the PCR court did not have jurisdiction to grant and we must vacate that provision in the October 22, 2013 order that gave defendant permission to file an appeal as within time, we exercise our original jurisdiction, see Rule 2:10-5, and order that defendant shall be permitted to file an appeal of the suppression motion ruling within forty-five days of the date of this opinion.
Affirmed in part and vacated in part. We do not retain jurisdiction.
