STATE OF NEW JERSEY v. SHAMIR JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAMIR JACKSON,

Defendant-Appellant.

October 28, 2013

Submitted September 17, 2013 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-02-0121.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shamir Jackson appeals from the February 8, 2011 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of two first-degree robberies, N.J.S.A. 2C:15-1 (counts one and two); second-degree robbery as a lesser-included of the original first-degree charge, N.J.S.A. 2C:15-1(a)(2) (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count five). The trial court sentenced defendant to concurrent eight-year terms of imprisonment (having sentenced defendant on the first-degree offenses as if they were second-degree crimes) on counts one, two, and three, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). The weapons possession offenses were merged into the robberies. On appeal, we affirmed the judgment of conviction. State v. Jackson, No. A-0900-07 (App. Div. Nov. 2, 2009). The Supreme Court denied defendant's petition for certification. State v. Jackson, 201 N.J. 499 (2010).

Defendant's convictions resulted from three robberies occurring within minutes of each other during the early morning hours of August 25, 2003. During the first robbery, defendant at knifepoint took the victim's wallet, found it was empty, and discarded it. The victim immediately contacted police and was able to provide the assailant's license plate number.

Shortly thereafter, defendant robbed two men, again at knifepoint, who were having a casual conversation outside of a bar. He took two one-dollar bills from one victim, and the cell phone from the other, before driving away. As defendant left the scene of the second robbery, one of the victims and a friend followed him. The other victim remained outside the bar, flagged down a passing police car, and described defendant and his vehicle. Defendant's description was broadcast over the police radio.

Officer Steven Leischman noticed the two men giving chase to defendant when they began to sound their horn and gesture towards defendant's car, which was directly in front of him. Leischman signaled to defendant, who pulled over within a few blocks. The victim and the friend followed Leischman's vehicle. As Leischman was speaking to defendant, he saw a gold-handled knife, cell phone, and two one-dollar bills lying on his front passenger seat. After being identified by the two men who were robbed outside the bar, defendant was arrested. Defendant's first trial resulted in a hung jury; the convictions at issue resulted from the second trial.

In his counseled PCR brief, defendant contended that trial counsel was ineffective due to his failure to investigate and pursue a misidentification and alibi defense, argue mitigating factors four, N.J.S.A. 2C:44-1(b)(4), and twelve, N.J.S.A. 2C:44-1(b)(12), and stress defendant's limited intelligence and troubled upbringing at sentence. In his pro se submissions, defendant argued that the court erred by denying his motion to sever the two robberies for trial, and failing to sentence him to the minimum lawful term.

The Law Division judge issued a five-page decision denying defendant's PCR petition on the basis that not only was defendant identified by his victims, he actually "admitted to a confrontation with victims Willie Smith and Ricardo LaMadrid," thereby making investigation of a misidentification or alibi defense pointless. Moreover, defendant's mental health problems, for which he is currently being treated, were limited to "panic attacks and a nervous condition," afflictions seemingly unrelated to the robberies, even if defendant had presented proof that he suffered from the disorders in 2003. And nothing in the record established a basis for mitigating factor four, that "substantial grounds [existed] tending to excuse or justify defendant's criminal conduct . . . ." The court also observed that the prosecutor, because of defendant's limited intelligence and upbringing, initially extended a non-NERA plea offer, and asked the court to sentence defendant within the second-degree range, as opposed to the first-degree range.

The judge opined that counsel had no basis to argue that mitigating factor twelve had support in the record, as that factor concerns defendant's cooperation with law enforcement officials regarding crimes other than his own, and the record was devoid of any mention of him doing so. See State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008).

Since defendant's contention that the motion to sever should have been granted was addressed on direct appeal, the judge found it was therefore barred from reconsideration on PCR. See R. 3:22-5. Defendant's argument that he should have been sentenced to the minimum term permissible was also addressed on direct appeal and hence was similarly unavailable for PCR consideration. See ibid.

On this appeal, defendant argues:

POINT I THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE POST-CONVICTION RELIEF COURT FAILED TO APPLY THE CORRECT PRIMA FACIE STANDARDS FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT III DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

(A)

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CONDUCT AN ADEQUATE PRETRIAL INVESTIGATION AND A MEANINGFUL DEFENSE.

(B)

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ARGUE MITIGATING FACTORS (4) AND (12) AS WELL AS TO STRESS PETITIONER'S LIMITED INTELLIGENCE AND UPBRINGING.

(C)

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO SEVER.

(D)

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN NOT SENTENCING PETITIONER TO THE MINIMUM TERM PERMISSIBLE UNDER THE CRIMINAL CODE.

We consider these points to be so lacking in merit as not to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

Preliminarily, defendant's contentions that the court should have addressed the motion to sever and its failure to sentence defendant to the minimum term were, as the PCR judge found, already considered in the direct appeal and are therefore barred from PCR review. See R. 3:22-5.

A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish counsel's deficiency prejudiced the defense by demonstrating 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. A reasonable probability is one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. See State v. Fritz, 105 N.J. 42, 58 (1987).

There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To rebut this presumption, a defendant must prove counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)). "[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Since defendant was arrested soon after the offenses were committed outside the bar, identified by two of the robbery victims, stopped in a vehicle bearing the license plates the first victim reported to police, and matched the description given by the first victim, the defenses of misidentification and alibi were irrelevant because they had no support in the record whatsoever. Failure to investigate defenses that would have been entirely fruitless and unavailing is no lapse in representation and merely raise the unsupported bald assertions we decried in Cummings. Ibid.

We also agree with the Law Division judge that defendant's current mental health conditions do not rise to the level that, had they been diagnosed before trial, would have raised the defense of diminished capacity or insanity. Moreover, his mental health status was taken into account at his sentence, where the State, after obtaining conviction for two first-degree robberies, only sought sentences in the second-degree range. Furthermore, on direct appeal, defendant's sentence was challenged precisely on the grounds that the court should have found mitigating factors four and twelve, as well as sentenced him to the minimum possible term. We said there that:

The sentencing judge had grave reservations about acceding to the State's recommendation of sentencing defendant as a second-degree offender, but nevertheless granted that lenity while imposing an otherwise reasonable term within the appropriate range of sanctions. This bespeaks judicial mercifulness, not abuse of discretion.

[Jackson, supra, slip op. at 13.]