August 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERMAINE JACKSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-03-1042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 16, 2011
Before Judges Waugh and Koblitz.
Defendant Jermaine Jackson appeals the order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
On March 31, 2006, an Essex County Grand Jury charged Jackson with one count of first-degree conspiracy to commit murder (count one), contrary to N.J.S.A. 2C:5-2; two counts of first-degree murder (counts two and three), contrary to N.J.S.A. 2C:11-3(a)(1) and (2); one count of third-degree unlawful possession of a handgun (count four), contrary to N.J.S.A. 2C:39-5(b); and one count of second-degree possession of a firearm for an unlawful purpose (count five), contrary to N.J.S.A. 2C:39-4(a). The charges arose out of the murder of two members of the "Blood" gang on May 2, 2005.
The case was called for trial on February 27, 2007. Jackson chose to accept a plea offer rather than proceed to trial. The plea offer required him to plead guilty to counts two and three of the indictment, which were amended to charge first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a)(1). He was also required to plead guilty to count four, third-degree possession of a weapon. In exchange for the guilty plea, the State agreed to recommend an aggregate maximum sentence of fifteen years incarceration, subject to an eighty-five percent period of parole disqualification pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to dismiss the remaining charges. The sentence was to run concurrent with the sentence that Jackson was already serving at the time of the plea.
The judge satisfied herself that the plea was knowing and voluntary. In the process, she offered Jackson a brief additional period to speak with his attorney when he showed some hesitation. The plea transcript reflects that Jackson's hesitation was related to the judge's statement that he would be required to testify against Frederick Martin. His attorney clarified the situation by informing the judge that he had already made it clear to the State that Jackson would not do so, and that such testimony was not a condition of the plea. With that clarification, Jackson agreed to proceed with the plea.
The judge questioned Jackson to establish a factual basis for the plea. Jackson, who is a member of the "Crip" gang, admitted that he shot the first victim in the head because he had taken a red handkerchief from his pocket, thereby indicating that he was a member of the "Blood" gang. Jackson then chased and shot the second victim because he had witnessed the first shooting. Jackson's factual basis included his assertion that Martin was behind him and firing his own weapon when Jackson chased and shot the second victim. The judge accepted the plea.
Jackson was sentenced in accordance with the plea agreement on April 24, 2007. We upheld the sentence on direct appeal in A-0144-10T1 an order resulting from a sentencing oral argument calendar on July 6, 2009.
Jackson filed a pro se PCR petition on March 31, 2009. His assigned counsel filed a formal brief, and the State filed a brief in opposition. Jackson argued that his trial counsel was ineffective because he did not give sufficient weight to an exculpatory statement from Martin, who had asserted in a document resembling a certification that he had shot the two victims and that Jackson was not present. Jackson also argued that he should be permitted to withdraw his guilty plea because it was not knowingly and voluntarily entered into.
A different judge heard oral argument on the petition on December 14, 2009. Following the argument, the PCR judge delivered an oral opinion denying relief. The judge determined that Jackson had not demonstrated ineffective assistance of counsel and had not satisfied the requirements of State v. Slater, 198 N.J. 145 (2009), for the withdrawal of a guilty plea following sentencing. An order of dismissal was entered on January 5, 2010. This appeal followed.
On appeal, Jackson raises the following issues:
POINT I: THE LOWER COURT ERRED IN DENYING MR. JACKSON'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
POINT II: MR. JACKSON WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
He does not appeal the denial of his application to withdraw his guilty plea.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . .
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, id. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
A defendant must establish a prima facie claim of ineffective assistance of counsel in order to obtain an evidentiary hearing. Preciose, supra, 129 N.J. at 462. We are satisfied that no evidentiary hearing was required in this case because, for the reasons explained below, we have concluded that Jackson failed to present a prima facie case of ineffective assistance of counsel.
Jackson stated on the plea agreement form that he was satisfied with the representation he received from his attorney. In entering the plea, Jackson assured the plea judge that he had received enough time to consult with his attorney, that his attorney answered his questions about the plea agreement, that he had received sufficient time to review the charges with his attorney, including the discovery provided by the prosecutor, and that he was not being threatened or forced to accept the plea. He also gave a detailed factual basis for the plea. In contrast, the certification Jackson filed in support of his PCR petition maintained that he felt pressured into entering a plea because he lacked confidence in his attorney. He also asserted that his attorney failed to investigate Martin's exculpatory statement and the potential testimony of other witnesses, who were not identified and the nature of whose testimony has not been explained.
It is clear from the record, however, that defense counsel was aware of Martin at the time of the plea. In addition to the written statement relied upon by Jackson, Martin had made a taped statement to the police. As set forth above, testimony concerning Martin was one of the subjects involved in the plea negotiation. In accepting the plea, Jackson had made it clear that he would not agree to testify against Martin, whom he had implicated in his factual basis. Indeed, his hesitation in proceeding with the plea was not his concern that Martin had made an exculpatory statement, but his concern that he might be required to testify against Martin.
Under Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695, acts or omissions of counsel must amount to more than trial strategy to be considered ineffective assistance. Martin was a fellow Crip member, who was already serving a lengthy prison sentence when he gave the written statement purporting to exculpate Jackson. Whether to go to trial and rely on Martin to give credible exculpatory testimony or accept the plea offer was a strategic decision, informed by the risks inherent in calling a witness like Martin and the considerable difference between the sentencing outcomes of the proposed plea and convictions resulting from a trial. The plea agreement called for a maximum aggregate sentence of fifteen years subject to NERA, whereas the sentence for first-degree murder was "a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole." N.J.S.A. 2C:11-3(b)(1). All of these factors were known at the time of the plea. Our review of the record leads us to conclude that there is insufficient evidence to support Jackson's assertion that defense counsel was ineffective in representing him.
In light of all these factors, we conclude that the PCR judge correctly determined that Jackson failed to present a prima facie case of ineffective assistance of counsel. Consequently, no hearing was required and the petition was properly dismissed.
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