STATE OF NEW JERSEY v. CHRISTOPHER JONES

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3042-07T43042-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER JONES,

Defendant-Appellant.

______________________________________

 

Submitted February 11, 2009 - Decided

Before Judges Stern and Rodr guez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-07-2586.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Christopher Jones appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

Pursuant to an agreement with the State, defendant pled guilty in 2004 to second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 11-3; five counts of first-degree attempted murder of a police officer, N.J.S.A. 2C:11-3 and 5-1; third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree resisting arrest, N.J.S.A. 2C:29-2. The State agreed to recommend a maximum fifteen-year custodial term. Judge Thomas Vena imposed concurrent terms aggregating twelve years with a NERA minimum term. The charges stem from defendant shooting at police officers in Newark.

Defendant appealed. At an excessive sentence oral argument calendar, we affirmed. State v. Jones, No. A-866-04T4 (App. Div. April 11, 2006). Defendant did not seek certification.

One year later, defendant filed pro se a PCR petition, contending he received ineffective assistance of trial counsel. Judge Vena appointed an attorney to represent defendant in the PCR proceeding. In the petition, defendant alleges that: he did not realize he was pleading to all the charges; trial counsel only met with him twice; and counsel did not explore a mental health defense. However, defendant made no proffer of what mental health issues should have been raised. The judge denied defendant's PCR petition without an evidentiary hearing because defendant had not established a prima facie case.

On appeal defendant contends:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR [PCR].

We reject this contention and agree with Judge Vena's findings that a prima facie showing of ineffective assistance of counsel pursuant to the Strickland/Fritz standard, has not been made.

Moreover, the transcript of the plea hearing belies defendant's allegations. Defendant told the judge he knew the charges to which he was pleading guilty, the sentence recommendation, and the impact of NERA on the sentence. He gave the following factual basis for his plea:

[DEFENSE COUNSEL]: Mr. Jones, I'm going to ask you a series of questions which relate to May 12th, 2003. On that day were you in the city of Newark?

[DEFENDANT]: Yes.

Q. And were you carrying a handgun on that day?

A. Yes.

Q. 38 caliber handgun?

A. Yes.

Q. And you didn't have a permit to carry that gun; correct?

A. Yes.

Q. Now, at some point did a series - I'm sorry, did a number of police officers approach you on the streets of Newark?

A. Yes.

Q. Okay. And approximately where were you? What street were you on?

A. West Runyon Street.

Q. Now, at some point did you pull out your handgun?

A. Yes.

Q. Okay. And could you tell us why you pulled it out? Were you afraid of getting arrested?

A. Yes.

Q. Okay. And did you fire your handgun?

A. Yes.

Q. Did you fire it at the five different officers?

A. Yes.

Q. Were you able to tell that there were five different officers there?

A. Yes.

Q. All right. Now, you didn't know who those officers were; correct?

A. Yes.

Q. Right. Correct, you did not know who those -

A. Yes.

Q. -- officers were? But you're not disputing the fact that within the indictment the officers are named by name and you're not disputing that those were the officers that were actually there; correct?

A. Yes.

Q. All right. When you fired at them were you firing in an attempt to hit them?

A. Yes.

Q. Were you firing in an attempt to kill them if the bullets hit them?

A. Yes.

Q. Now, you were - at some point, you were with Staford Hughes (phonetic) as well; is that correct? Or Staford Hughes was there?

A. Yes.

Q. Okay. Was he also firing?

A. Yes.

Q. All right. And certainly, you didn't have a verbal agreement, but the two of you were firing at the same time; is that correct?

A. Yes.

Q. So, your agreement seemed to be by your conduct between you and Mr. Hughes?

A. Yes.

Q. Okay. And you actually did run away from the police in an effort to escape arrest; is that correct?

A. Yes.

This plea colloquy reflects defendant's knowledge of the offenses. He clearly admitted to shooting at five officers and trying to get away.

Moreover, the negotiated disposition reduced defendant's exposure from fifty years to fifteen years. It is highly unlikely that defendant would have rejected this offer. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) (applying the Strickland standard to a guilty plea case).

 
Finally, we agree with the State's argument that defendant had the opportunity to raise a mental health issue on direct appeal. He did not do so. Therefore, this issue is procedurally barred by virtue of Rule 3:22-4. In any event, there was nothing presented to the PCR judge which suggests such a defense could have been successful or impacted the result.

Affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Assuming that the five convictions for shooting at the police officers would have received a concurrent sentence.

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A-3042-07T4

 

June 19, 2009