STATE OF NEW JERSEY v. WILLIE JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5192-07T45192-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIE JACKSON,

Defendant-Appellant.

_________________________________________________

 

Submitted October 15, 2009 - Decided

Before Judges Cuff and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

04-02-0455.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Mark Zavotsky,

Designated Counsel, on the brief).

Paul T. Dow, Essex County Prosecutor,

attorney for respondent (Luanh L. Lloyd,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant, Willie Jackson, appeals from the denial of his petition for post-conviction relief (PCR) without a hearing. On appeal, he raises the following arguments:

POINT I

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE PROCEDURALLY BARRED FROM CONSIDERATION ON THE MERITS.

POINT II

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR COUNSEL'S MISADVICE ON THE EVIDENTIARY NATURE OF HIS CRIMINAL RECORD WHICH EFFECTIVELY COERCED DEFENDANT INTO ACCEPTING A GUILTY PLEA.

POINT III

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO ENSURE THE DEFENDANT POSSESSED THE MENTAL CAPACITY TO UNDERSTAND HIS PLEA OFFER AND THE POSSIBLE PENAL CONSEQUENCES OF SUCH AND/OR ARGUE DEFENDANT'S MENTAL HEALTH DISORDER AS [A] MITIGATING CIRCUMSTANCE.

POINT IV

DEFENDANT'S SENTENCE MUST BE VACATED DUE TO THE IMPROPRIETY OF THE JUDGE'S COMMENTS PRIOR TO IMPOSING SENTENCE AND/OR DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO CHALLENGE THE BIAS VISITED UPON DEFENDANT DURING SENTENCING.

POINT V

DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND IS THEREFORE ENTITLED TO AN EVIDENTIARY HEARING.

We affirm.

This matter arises out of an incident occurring on May 20, 2003. At 9:30 a.m. on that day, defendant stole a car parked on Ferry Street in Newark. While the theft was in progress, Arthur Mercies, the father of the owner of the car, spread eagled himself on the car's hood in an attempt to prevent the theft from occurring. However, defendant drove off, and Mercies, who had been clinging to the hood, fell to the roadway, sustaining injuries to his head that led to his death on June 3, 2003.

Defendant was later indicted by an Essex County Grand Jury in indictment no. 04-02-455 for first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); three counts of first-degree felony murder, N.J.S.A. 2C:11-3a(3) (counts two, four and six); first-degree carjacking, N.J.S.A. 2C:15-2(1) (count three); first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count five); second-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count seven); second-degree aggravated assault, N.J.S.A. 2C:12-1b (count eight); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count nine); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count ten); and third-degree receipt of stolen property, N.J.S.A. 2C:20-7 (count eleven).

On February 7, 2005, defendant pled guilty to count one of the indictment, amended to second-degree reckless manslaughter, N.J.S.A. 2C:11-4b, and to count three, carjacking, N.J.S.A. 2C:15-2(1), to be sentenced as a second-degree offense. The State recommended concurrent sentences of eight years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to be served concurrently with a sentence that defendant was then serving on a conviction for a crime committed in Morris County. Additionally, on the same day, defendant pled guilty to Essex County indictment no. 04-10-3331, charging two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a), and arising from assaults by defendant on two guards in the Essex County Jail. Although the State recommended imposition of concurrent four-year sentences to be served consecutively to the sentence imposed on indictment no. 04-02-455, the judge agreed to sentence defendant to concurrent three-year sentences for those crimes, to be served consecutively to the sentence imposed on indictment no. 04-02-455.

At the plea hearing, defendant admitted in connection with his plea to aggravated manslaughter that he had driven away with Mercies spread eagled on the hood of the car and that he knew that Mercies could fall off and be killed, yet he ignored the risk. After giving a factual basis for his pleas to aggravated assault, the judge discussed with defendant his potential sentencing exposure, the applicability of NERA to the manslaughter and carjacking convictions, and the implications of violating the mandatory period of parole imposed in connection with NERA. The judge also discussed the burden that would be imposed on defendant if he sought to vacate his pleas either before or after sentencing. He reviewed the constitutional rights that defendant was waiving, established the accuracy of the responses set forth on the plea forms, and confirmed that the pleas were an exercise of defendant's own free will. In that connection, the following colloquy took place:

THE COURT: Are you under the influence of any alcohol, drug or medicine?

THE DEFENDANT: No.

THE COURT: How old are you?

THE DEFENDANT: I take medication.

THE COURT: You do. For what?

THE DEFENDANT: Hyper.

THE COURT: But that doesn't affect your judgment, does it?

THE DEFENDANT: No.

THE COURT: I'm sorry?

THE DEFENDANT: No.

After establishing defendant's age, his schooling and his ability to read and write, the following additional colloquy occurred:

THE COURT: [E.P.] was your lawyer. Correct?

THE DEFENDANT: Yes.

THE COURT: Did he explain everything to you?

THE DEFENDANT: Yes.

THE COURT: Did he answer all your questions?

THE DEFENDANT: Yes.

THE COURT: Are you satisfied with his legal services?

THE DEFENDANT: Yes.

THE COURT: Anything you need to ask him or me before we conclude this proceeding?

THE DEFENDANT: No.

Following entry of the plea, a pre-sentence investigation took place that included an interview with defendant. During its course, defendant disclosed that he had been hit on the head with a crowbar at the age of eleven and, he stated, since then, "I do things, but don't realize I'm doing it. I block out because of the medication." Defendant stated that he took Ritalin and "Duracine" from the age of ten until 2000 "to keep me calm. I'm just hyper and can't stay still." Defendant stated that, during his present incarceration, he saw a psychiatrist every two weeks, noting "I have trouble sleeping and hearing things -- voices." However, he stated that he was not diagnosed as a schizophrenic. The pre-sentence investigation report also noted that defendant had taken Thorazine from age ten to the present; that he had received counseling at University Hospital from the age of ten to eighteen, at Fair Oaks hospital for six months, and at Beth Israel Hospital for one month; and that he had received SSI benefits from age ten until his incarceration. Nonetheless, defendant reported his mental health to be "good."

Sentencing took place on April 29, 2005. The children

of the decedent were present, and a letter from them was read in open court. Thereafter, the judge noted that defendant had "been on some medications for some mental illness or brain trauma" from an early age. Additionally, the judge noted that as a juvenile, defendant had been the subject of thirty arrests and eight adjudications. As an adult, he had been the subject of eight arrests and six convictions. At the time of sentencing, he was twenty-two years of age. The judge observed:

He's just a walking crime spree. And the letter which was authored by members of the family of the victim, they're right. You don't belong -- you shouldn't live with people. You should spend the rest of your life in jail. All you do is create misery for everyone. There's nothing good about you. But I am restricted by the parameters of the law.

Accordingly, the judge sentenced defendant as specified in the two plea agreements, finding as aggravating factors the risk that defendant would commit another offense, the extent of his prior criminal record, and the need for deterrence. N.J.S.A. 2C:44-1a(3), (6) and (9). Defense counsel did not suggest any mitigating factors, and the judge found none.

Defendant did not appeal his convictions. However, on June 10, 2007, he filed a PCR petition, which was heard by a different judge on March 17, 2008. In his petition, defendant claimed that his trial attorney rendered ineffective assistance by advising him to waive a jury trial and by not negotiating a better plea. In connection with the first point, defendant alleged that counsel advised him that if he went to trial he would be found guilty based on his criminal record, and counsel failed to inform him that his record would only be admissible if he testified on his own behalf and, even then, it was likely to be sanitized. Defendant further argued that trial counsel was ineffective in failing to raise defendant's mental condition as a mitigating factor at sentencing. He argued additionally that trial counsel should have objected to the judge's "harsh mischaracterization" of defendant at sentencing, and should have argued that the focus of the sentencing was on defendant's crimes, not defendant's character. In a written opinion, the judge denied PCR on the grounds that defendant's claims were barred by Rule 3:22-4, since they could have been raised on direct appeal, and that they substantively lacked merit. This appeal followed.

On appeal, defendant first argues that the bar of Rule 3:22-4 is inapplicable in his case because his claim that counsel failed to investigate his mental capacity to enter a plea or to stand trial was not cognizable on direct appeal since it depended on facts outside the record. State v. Preciose, 129 N.J. 451, 460 (1992). Further, defendant claims that his argument that counsel had misinformed him as to the potential use of his criminal record likewise depended on evidence outside the record and thus could not have been raised on direct appeal. Ibid. To this extent, we agree with defendant, and we therefore address his arguments.

We reject defendant's position that counsel was ineffective because he allegedly misadvised defendant as to the potential use of his extensive criminal record, thereby coercing him into accepting the State's plea offer. That claim is not supported by a certification either by defendant or by his trial counsel setting forth the nature of the advice given. Without such a certification, the claim lacks an evidentiary basis, which cannot be supplied by argument, alone. State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999); State v. Gaither, 396 N.J. Super. 508, 514 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). We note additionally that defendant stood trial in December 2003 on charges of receipt of stolen property and eluding. We find it reasonable to assume that the use of prior convictions existing at that time was explained in the course of that trial. We have been offered nothing to suggest that defendant would have failed to recall that explanation or would, two years later, have accepted without question an alleged explanation that was at odds with defendant's prior experience.

Defendant next argues that "at the time of plea and sentence, he did not possess the mental capacity in which to make a knowing decision as required by law," that counsel knew or should have known of defendant's diminished capacity to make an informed decision, and counsel acted ineffectively in not bringing defendant's condition to the court's attention. Alternatively, defendant argues if we find him to have possessed the requisite mental capacity at the time of the plea, then counsel was ineffective in failing to raise defendant's longstanding mental condition as a mitigating factor at sentencing.

Again, we find evidentiary support for defendant's claim to be lacking. In doing so, we recognize that the pre-sentence investigation report contained defendant's statement that he had been struck on the head at the age of ten; had been prescribed Ritalin, Ducene and Thorazine for lengthy periods; had received counseling for an extended period at University Hospital and for short periods at Fair Oaks and Beth Israel Hospitals; and was presently seeing a psychiatrist every two weeks while in prison. However, no evidence has been presented that would suggest that defendant's mental faculties were impaired at the time he accepted the State's plea offer. Indeed, defendant denied on the record that any such impairment existed. Further, defendant offers no evidence to suggest that, if his mental functioning had not been impaired, he would have rejected the favorable plea offer that he, in fact, accepted. Accordingly, defendant has failed to establish, as state and federal precedent requires, both that counsel was ineffective and that, but for counsel's ineffectiveness, the outcome would have been different. See 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).

We also reject defendant's argument that counsel was ineffective for failing to raise defendant's mental condition as a mitigating factor at sentencing. We find no evidence to have been presented in connection with defendant's plea or his PCR petition that would support the claim that defendant was mentally incapacitated at the time of the crime, therefore permitting a conclusion by the trial judge that defendant failed to appreciate the recklessness of his conduct or that his conduct could otherwise be excused or justified. See N.J.S.A. 2C:44-1b(1) and (4). Thus, the factual foundation for any claim of mitigation of sentence is lacking. We note as well that the terms of defendant's sentence were ones that were negotiated by the State and defense counsel. Defendant has not set forth any basis for a deviation from counsels' agreement.

As a final matter, we address defendant's argument that counsel should have objected to the alleged expressions of bias against defendant uttered by the judge at the time of sentencing. We find such a claim to be barred by Rule 3:22-4, since it unquestionably could have been the subject of a direct appeal. Nonetheless, if we were to address it substantively, we would reject defendant's position. As the judge recognized, regardless of his personal evaluation of defendant and his criminal history, the judge was "restricted by the parameters of the law." Accordingly, the judge imposed the requisite negotiated sentence. In this circumstance, we find no basis for concluding that if defense counsel had objected to the judge's comments, the result would have been in any sense different. As a consequence, Strickland's second prong is unmet.

Because defendant has failed to offer evidentiary support for his claims, we concur with the PCR judge's conclusion that defendant has failed to present a prima facie case, warranting an evidentiary hearing. Preciose, supra, 129 N.J. at 462. Thus, we affirm the denial of PCR.

 
Affirmed.

This appears to be Ducene (diazepam or valium), a drug used, among other things, to treat anxiety.

In another entry, defendant claimed to have taken these drugs from 1993 to April 2002.

An argument that the sentence imposed did not conform to State v. Natale, 184 N.J. 458 (2005) was withdrawn, since sentencing occurred before the decision in Natale was rendered, and no appeal was taken that would have triggered pipeline retroactivity.

(continued)

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A-5192-07T4

January 8, 2010