April 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDREW JACKSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-12-5037.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 24, 2009
Before Judges Fuentes and Chambers.
Defendant Andrew Jackson appeals from the denial of his post-conviction relief petition.
In December 1997, defendant was indicted in a multiple count indictment that included charges for first degree attempted murder, first degree kidnapping, second degree aggravated assault, and numerous weapons and drug violations. His wife was also indicted on certain weapons and drug counts. On March 5, 1999, defendant pled guilty to two counts of third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts eight and sixteen); third degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(a) (count twenty-one); first degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(b) (count twenty-eight); second degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(b) (count thirty-one); and third degree possession of a CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count thirty-two). On April 26, 1999, he pled guilty to aggravated assault, downgraded to fourth degree by amendment, N.J.S.A. 2C:12-1(b)(1) (count three); third degree terroristic threats, N.J.S.A. 2C:12-3 (count four); third degree criminal restraint, N.J.S.A. 2C:13-2 (count five); third degree possession of a weapon without a license, N.J.S.A. 2C:39-5(f) (count twelve); and third degree possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count eighteen).
Defendant received an aggregate sentence of five years imprisonment with eighteen months of parole ineligibility, and the requisite monetary assessments and penalties. As part of the plea agreement, the charges against defendant's wife were dismissed.
On appeal, we remanded in order that the judgment of conviction be amended to merge the conviction for possession of CDS with intent to distribute (count thirty-one) with the conviction for possession of CDS with intent to distribute within 1,000 feet of a school (count thirty-two). State v. Jackson, No. A-4481-99 (App. Div. Apr. 26, 2002). On July 15, 2002, the trial court amended the judgment in accordance with this direction. The Supreme Court thereafter denied defendant's petition for certification. State v. Jackson, 174 N.J. 193 (2002). Defendant's petition for post-conviction relief was denied by the trial court on March 12, 2007, and this appeal followed.
On appeal, defendant raises the following issues:
It was Judicial Error to Deny the Motion for Post-Conviction Relief.
The Defendant is Entitled to a Remand to the Trial Court for an Evidentiary Hearing to Determine the Merits of his Contention that He was Denied the Effective Assistance of Counsel.
In Point I, defendant asserts that his trial counsel was ineffective because defense counsel did not investigate probable misconduct by an investigator with the Essex County Prosecutor's Office who searched defendant's apartment; failed to investigate the illegal search of defendant's apartment and file a motion to suppress; was negligent in presenting the factual basis for defendant's plea to count thirty-two, possession with intent to distribute CDS within 1,000 feet of a school; failed to inform defendant of his rights to remain silent and not testify, to confront a witness, and to present witnesses; failed to advise defendant of the implications and consequences of the plea; and failed to advise defendant of his sentencing date. In Point II, defendant contends that the trial court should have scheduled an evidentiary hearing in order to determine the merits of these contentions.
Post-conviction relief is appropriate where a defendant's substantial constitutional rights were violated in the conviction proceedings. R. 3:22-2(a). Claims of ineffective assistance of counsel implicate a defendant's constitutional right to counsel under both the federal and state constitutions, Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 691-92 (1984); State v. Fritz, 105 N.J. 42, 58 (1987), and are properly raised in post-conviction relief proceedings. See State v. Preciose, 129 N.J. 451, 460 (1992) (stating that ineffective assistance of counsel claims were "particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding"). A defendant's constitutional rights to counsel are violated where "counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction." State v. Fritz, supra, 105 N.J. at 58.
Ordinarily, an evidentiary hearing will be held on ineffective assistance of counsel claims, provided defendant has made out a prima facie claim for post-conviction relief. State v. Preciose, supra, 129 N.J. at 462. In determining whether defendant has done so, the court must look at the facts from the perspective most favorable to defendant. Id. at 462-63. In order to establish a prima facie case, defendant must establish two elements: (1) that his attorney's performance was deficient and (2) that without these deficiencies, in reasonable probability, "the result of the proceeding would have been different." State v. Preciose, supra, 129 N.J. at 463-64.
Against this backdrop of legal principles, we have carefully reviewed the record, and we affirm substantially for the reasons set forth by Judge Weeks in her thorough decision placed on the record. We only add the following comment.
Defendant claims that he is entitled to post-conviction relief because defense counsel did not investigate the probable misconduct by an investigator with the Essex County Prosecutor's Office who searched defendant's apartment and did not investigate and file a motion to suppress the evidence seized in that search. Defendant contends that his wife and mother-in-law had not consented to the search of the apartment as the investigator represented. Other than an article from The Star Ledger*fn1 involving the investigator, which the trial judge noted is not admissible evidence, the record contains no affidavits from defendant's wife or mother-in-law or any other evidence to buttress these factual assertions.
A defendant who claims that "his trial attorney inadequately investigated his case,  must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon  personal knowledge." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When a defendant asserts that his attorney's performance was deficient, "[h]e must allege facts sufficient to demonstrate counsel's alleged substandard performance." Ibid. Here the defendant has not come forward with sufficient facts to support his argument that defense counsel should have conducted a further investigation and made a motion to suppress.