delivered the opinion of the Court.
In
State v. Rodriguez,
we held that a person who acts in self-defense and “kills in the honest and reasonable belief that the protection of his own life requires the use of deadly force” cannot be convicted of murder, aggravated manslaughter, or manslaughter. 195
N.J.
165, 172-74,
In the 2003 trial of defendant Naquan O’Neil, the trial court instructed the jury that self-defense is a valid justification fоr murder but not for aggravated manslaughter or manslaughter. Defense counsel did not object to the charge. The jury acquitted defendant of murder and convicted him of aggravated manslaughter. On appeal, defense counsel did not challenge the court’s charge on self-defense.
In his petition for post-conviction relief (PCR), defendant claims that he was denied the effective assistance of appellate counsel guaranteed by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. The bаsis for that claim is that appellate counsel did not raise on direct appeal the erroneous jury instruction that denied him a valid defense to the charges of aggravated manslaughter and manslaughter. 1 The Law Division denied the PCR petition, and the Appellate Division affirmed, finding that appellate counsel’s performance was not deficient because Moore controlled at the time of defendant’s appeal.
We now reverse. The Appellate Division panel in defendant’s direct appeal heard argument on March 21, 2007, but did not render its decision until August 10, 2007. Between those dates, anothеr Appellate Division panel ruled, in a decision published on March 29, 2007, that self-defense was a valid defense to a charge of manslaughter.
State v. Rodriguez,
392
N.J.Super.
101, 113,
I.
A.
Defendant was indicted on charges of first-degree murder, N.J.S.A. 2C:ll-3(a); third-degree unlawful possession of a handgun without a carrying permit, N.J.S.A 2C:39-5(b); and second-degree possession of a handgun for the purpose of using it unlawfully against another, N.J.SA 2C:39-4(a). At defendant’s trial, the court instructed the jury on the additional charges of first-degree aggravated manslaughter and second-degree manslaughter, lesser-included offenses of murder. The charges stemmed from the shooting death of Hassan Hardy. Defendant claimed self-defense as the justification for killing Hardy. The evidence presented at trial relevant to this appeal follows.
B.
Defendant and Hardy had been friends. In the two days before defendant fatally shоt Hardy, however, the two had several violent encounters. 2 On the evening of March 16, 2001, they went to a nightclub in Newark with a group of mutual friends. At the club, defendant and Hardy got into an argument and later exchanged verbal insults in a nearby parking lot. The confrontation escalat ed when Hardy, seated in a friend’s car, slammed the car door twice into defendant, who then punched Hardy. Friends stopped the fight, and defendant and Hardy went their separate ways.
Sometime later that evening, the two encountered each other again on a Newark streеt. Defendant was sitting on his car when Hardy emerged from behind a bush, armed with a handgun. The two exchanged words, and Hardy, who was much larger than defendant, grabbed defendant by the arm. Hardy fired approximately four shots in the direction of defendant’s legs without hitting him and then struck defendant in the head with the gun several times. Hardy began to drag defendant toward an empty lot but let him go when someone yelled that the police were coming. Afterwards, defendant went to a nearby lot and retrieved a .380 caliber handgun from a known gun stash. From there, defendant walked to where Hardy had parked his vehicle and shot out its windows. Defendant did not return the gun to the stash.
Cindy Crawford testified that she was friends with both defendant and Hardy. On March 17, 2001, at 9:00 p.m., defendant picked Crawford up at her house and the two drove in defendant’s car. Crawford noticed that defendant had a gun on his lap. At about 10:00 p.m., defendant brought her home.
According to Crawford, at around 1:00 a.m., she observed Hardy standing by a tree near her home. She saw defendant approach Hardy and say to him, “You like playing with guns?” Defendant then opened fire, and Hardy fell to the ground.
After the shooting, Crawford saw someone she recognized from the neighborhood rifle through Hardy’s clothing, removing a cell phone, money, and a gun — but drop the gun as police arrived. The police recovered a .25 caliber handgun next to Hardy’s body. The gun’s trigger was cocked, one five round was in the chamber, and five rounds were in the magazine. The gun had not been fired.
In his testimony, defendant claimed that, after his earlier bouts with Hardy, he carried a .380 caliber handgun in the early morning of March 18 fоr protection. He encountered Hardy again on the street, and they exchanged heated words. According to defendant, Hardy was angry and pulled from his pocket a gun, which he pointed at defendant. In response, defendant quickly drew the gun and shot Hardy. Defendant explained that he did not retreat because he could not “outrun no bullet,” and fired the weapon because he feared he “was going to be shot.” After leaving the scene, defendant stated he “[b]lacked out” and either “dropped” or “threw” the gun behind nearby townhouses.
Nine days after the shooting, the police arrested defendant. The gun used to kill Hardy was never recovered.
C.
At the jury-charge conference, no one questioned that defendant was entitled to a charge on self-defense. The prosecutor and defense attorney, however, agreed that self-defense applied only to the charge of murder and not to the lesser-included charges of aggravated manslaughter and manslaughter — offenses that are predicated on reckless conduct. See N.J.S.A. 2C:ll-4(a)(l) (defining aggravated manslaughter as “rеcklessly causing] death under circumstances manifesting extreme indifference to human life”); N.J.S.A. 2C:ll^(b)(l) (defining manslaughter as “recklessly” causing death).
The court instructed the jury that, on the charge of murder, “self-defense completely exonerates a person who uses force in the reasonable belief that such action was necessary to prevent his or her death or serious injury, even though his belief was later proven mistaken.” The court added, “The defense of self-defense is not applicable to the lesser-included charges of aggravated manslaughter and reckless manslaughter.... When the mental state is recklessness, self-defense is not a justification.”
The jury acquitted defendant of murder but convicted him of first-degree aggravated manslaughter, third-degree unlawful pos session of a handgun, and second-degree possession of a handgun for the purpose to use it unlawfully against another. On May 2, 2003, the trial court sentenced defendant to a prison term of twenty-two years on the aggravated-manslaughter conviction subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 20:43-7.2, and to a concurrent five-year term on the unlawful possession of a handgun conviction. The remaining charge was merged into the aggravated-manslaughter conviction. The court imposed all requisite fines and penalties. 3
On direct appeal, defendant’s appellate counsel raised several purported trial errors and claimed that the sentence was excessive. Appellate counsel did not challenge the self-defense charge. The case was submitted to the Appellate Division on March 21, 2007. Just eight days later, the
Rodriguez
panel held that self-defense is applicable to both a charge of manslaughter and possession of a weapon for an unlawful purpose.
Rodriguez, supra,
392
N.J.Super.
at 103,
Significantly, defendant’s appellate counsel failed to raise the validity of the self-defense charge with the panel in this case after the
Rodriguez
decision was rendered. Nor did appellate counsel raise the self-defense issue with the panel after we granted certification in
Rodriguez, supra,
on July 6, 2007. 192
N.J.
292,
III.
A.
In May 2008, defendant filed a PCR petition. He claimed that the failure of his trial and appellate attorneys to raise self-defense as a defense to aggravated manslaughter and manslaughter constituted ineffective assistance of counsel. Defendant argued that “it has always been the law of New Jersey that self-defense could be a justification for a charge of manslaughter” and that this Court’s decision in Rodriguez “authoritatively clarified” this issue in the wake of “confusion generated by thе language in [Moore ].”
In September 2010, the PCR court denied the petition on two grounds. It held that defendant should have raised a challenge to the jury charge at trial or on direct appeal and therefore was procedurally barred by Rule 3:22-4 from raising the claim on PCR. It also held that appellate counsel did not act unreasonably by relying on Moore — '“the most recent available opinion on the topic.” The PCR court maintained that appellate counsel could not be expected to have anticipated this Court’s 2008 decision in Rodriguez.
Defendant appealed.
B.
The Appеllate Division affirmed in an unpublished opinion. The panel reasoned that before this Court’s decision in
Rodriguez,
“it was by no means clear that a trial court” was required to charge on self-defense in a manslaughter case. The panel maintained that, although “case law fragments” indicated that self-defense was an available defense to a manslaughter charge at the time of
defendant’s trial, citing
State v. Kelly,
97
N.J.
178, 203-04 n. 12,
This Court granted defendant’s petition for certification.
State v. O’Neil,
214
N.J.
119,
IV.
Defendant argues that our holding in Rodriguez — that self-defense can constitute a defense to manslaughter — did not announce a new rule of law. Instead, he submits that Rodriguez merely reaffirmed well-settled principles found in the Code of Criminal Justice and our jurisprudence, and clarified our earlier decision in Moore. On this basis, defendant insists that Rodriguez’s holding should be fully retroactive and applicable to his PCR petition. Alternatively, he reasons that even if Rodriguez did set forth a new rule of law, the new “rule must apply retroactively to the small class of cases in which the trial court erroneously relied upon the dicta in Moore in denying a self-defense” charge for aggravated manslaughter and manslaughter. Defendant, moreover, submits that appellate counsel was constitutionally deficient because he “should have been aware of the Appellate Division’s published opinion in Rodriguez which was issued while [defendant’s] direct appeal was pending” and should have raised the jury charge issue in that appeal.
In contrast, the State urges this Court to affirm the Appellate Division. The State submits that our holding in Rodriguez represents a new rule of lаw and therefore does not apply retroactively on collateral review, such as on PCR. It points out that the Court in Moore “made the broad pronouncement that the justification of self-defense was not available where the charged offense required a reckless state of mind.” The State notes that several Appellate Division decisions, all but one unpublished, relied on the “unequivocal language” of Moore. The State maintains that any retroactive application of Rodriguez should be limited to cases pending on direct review on the day Rodriguez was announced. Because our decision in Rodriguez was decided ten months after defendant’s direct appeal, the State argues that interests in finality must be respected. Additionally, the State insists that “[a]ppellate counsel should not be held accountable for failing to anticipate the Supreme Court would affirm Rodriguez,” nor should she have “a never-ending obligation ... to advocate ad infinitum.” The State concludes that appellate counsel “exercised reasonable professional judgment” and fulfilled her responsibility to provide effective representation under both the Federal and State Constitutions.
Y.
A.
This appeal comes to us from the denial оf defendant’s petition for PCR. A PCR proceeding provides a defendant a forum to remedy a substantial denial of rights guaranteed by “the Constitution of the United States or the Constitution or laws of the State of New Jersey.”
R.
3:22-2(a). It is a defendant’s last opportunity “to challenge the ‘fairness and reliability of a criminal verdict in our state system.’ ”
State v. Nash,
212
N.J.
518, 540,
“Ineffective-assistance-of-eounsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding.”
State v. Preciose,
129
N.J.
451, 460,
The primary focus of defendant’s challenge is that he was denied the effective assistance of appellate counsel in violation of the Federal and State Constitutions. We now turn to the law governing defendant’s claim.
B.
The Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution both have been construed to guarantee an accused “ ‘the right to the effective assistance of counsel’ ” in a criminal proceeding.
Strickland v. Washington,
466
U.S.
668, 686, 104
S.Ct.
2052, 2063,
The right to effective assistance includes thе right to the effective assistance of appellate counsel on direct appeal.
See Evitts v. Lucey,
469
U.S.
387, 396, 105
S.Ct.
830, 836, 83 L.Ed.2d
821, 830 (1985) (“A first appeal as of right ... is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney.”);
State v. Guzman,
313
N.J.Super.
363, 374,
To establish ineffective assistance of counsel, a defendant must satisfy two prongs. First, he must demonstrate that counsel made errors “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, supra,
466
U.S.
at 687,104
S.Ct.
at 2064,
Second, a defendant “must show that the deficient performance prejudiced the defense.”
Strickland, supra,
466
U.S.
at 687, 104
S.Ct.
at 2064,
We next discuss the law of self-defense relevant to the present case.
VI.
A.
In
Rodriguez, supra,
we affirmed a reported Appellate Division decision, which held that “a valid claim of self-defense — when not disproved by the State — exonerates a defendant of reckless manslaughter.” 195
N.J.
at 169,
As earlier explained, the published Appellate Division opinion in
Rodriguez
was decided just eight days after the appeal in this case was submitted to the panel and more than four months before that panel rendered its decision. The Appellate Division decision in
Rodriguez
directly benefitted defendant, signaling that he had been denied a legitimate defense at his trial. That decision was “an expression of the law of our State” at that time.
See Gormley v. Wood-El,
218
N.J.
72, 114,
While appellate counsel does not have an obligation “to advocate
ad infinitum,”
she should bring to the court’s attention controlling law that will vindicate her client’s cause.
See Stallings
v. United States,
536
F.
3d 624, 628 (7th Cir.2008) (holding appellate counsel’s performance deficient for failing to challenge sentence pursuant to
United States v. Booker,
543
U.S.
220, 125
S.Ct.
738,
B.
Additionally, our
Rodriguez
decision, which was rendered after defendant’s direct appeal had run its course, was not a novel interpretation of the law of self-defense. We explained in detail in
Rodriguez, supra
— and need not rеpeat at length here — that the plain language of the relevant provisions of the Code of
In addition, from the inception of the Code, case law reflected what the Code made manifest — that defendants facing manslaughter charges could offer a self-defense justification.
See Kelly, supra,
97
N.J.
at 204 n. 12,
In light of that history, we viewed the broadly stated dicta in our 1999 decision in
Moore
— that “ ‘[t]he Code’s justification defenses are not available in a prosecution where recklessness or negligence suffices to establish the requisite mental element’ ” — as a “mistaken assertion” limited to the peculiar facts in
Moore. Rodriguez, supra,
195
N.J.
at 173-74,
It also bears mentioning that a widely read commentator, in discussing
N.J.S.A.
2C:3-9 at the time of defendant’s direct appeal, warned that
“[Moore
] should not be read to indicate that the subsection means that the justification of self-defense is unavailable against any charge based on recklessness.” Cannel,
New Jersey Criminal Code Annotated,
comment 4 on
N.J.S.A.
2C:3-9 (2002). The commentator emphasized that “[i]f the actor is justified in using the actual force that occurred, the justification is available against all charges
With these principles in mind, we now turn to whether defendant’s counsel provided constitutionally deficient representation.
VII.
The parties dispute the extent of retroactivity to be accorded to our Rodriguez holding. The parties argue over whether Rodriguez recites a long-standing rule or a new one and whether Rodriguez should be given full retroactivity or only pipeline retroactivity. We need not address these issues here. Instead, we are presented with the narrow question оf whether defendant’s appellate attorney denied defendant the effective representation of counsel guaranteed by the Sixth Amendment of the Federal Constitution and Article I, Paragraph 10 of our State Constitution.
We conclude that defendant’s counsel’s representation “fell below an objective standard of reasonableness.”
See Strickland, supra,
466
U.S.
at 688, 104
S.Ct.
at 2064,
At the time of defendant’s appeal, the Appellate Division’s
Rodriguez
decision was the controlling law unless overturned by this Court. That decision clearly expressed that defendant was denied a valid defense to the lesser-included offenses of aggravated manslaughter and manslaughter at his trial. Surely, аppellate counsel could have no strategic reason for not raising a ruling that presumably would lead to a new trial for his client. The
Striekland/Fritz
standard may not require appellate counsel to have the foresight to raise a cutting-edge issue or anticipate a change in the law not evident in existing jurisprudence. However, “once a change — particularly an important and relevant change— does come about,” counsel is expected to be aware of it.
Ballard, supra,
The prejudice suffered by defendant is clear. Had appellate counsel raised the self-defense issue, there is a reasonable probability that the panel deciding defendant’s appeal would have applied the published holding of its sister panel, almost certainly leading to the reversal of defendant’s aggravated-manslaughter conviction. Even had the panel denied relief, that would have led to inconsistent decisions between two appellate panels, an independent ground for the grant of certification by this Court. In any event, this Court granted certification
We find that, but for appellate counsel’s errors, there is “a reasonable probability” that “the result of the proceeding would have been different.”
See Strickland, supra,
466
U.S.
at 694, 104
5. Ct.
at 2068,
Of course, we cannot know the precise reason for the jury’s verdict of not guilty to murder. Nevertheless, the trial court’s failure to charge self-defense on aggravated manslaughter and manslaughter leaves open a reasonable probability that, if properly instructed, the outcome would have been different. The erroneous jury instruction necessarily undermines confidence in the verdict.
See Strickland, supra,
466
U.S.
at 694, 104
S.Ct.
at 2068,
VIII.
For the reasons expressed, we reverse the judgment of the Appellate Division, vacate defendant’s aggravated-manslaughter conviction, and remand for a new trial.
For reversal/vacation/remandment — Chief Justice RABNER and Justices LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA and Judge CUFF (temporarily assigned)— 6.
Opposed — None.
Notes
Although initially defendant contended that trial counsel was ineffective for not requesting a self-defense charge on the aggravated-manslaughter and manslaughter charges, he did not press this claim on appeal.
The events leading to the shooting of Hardy are generally not in dispute. Those events, as described, are a composite of the trial testimonies of three witnesses, one of whom was defendant.
The court did not impose the five-year period of parole supervision mandated by the version of the No Early Release Act in effect at the time of the offense, L. 1997, c. 117, § 2 (eff. June 9, 1997) (codified as amended at N.J.S.A. 2C:43-7.2(c)) ("[A] court imposing a minimum period of parole ineligibility of 85 percent of the sentence pursuant to [NJ.S.A. 2C:43-7.2] shall also ... impose a five-year term of parole supervision if the defendant is being sentenced for a crime of the first degree. ...”)•
On remand, the court imposed the sentence originally given to defendant.