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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...