STATE OF NEW JERSEY v. DAVID E. 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NOT FOR PUBLICATION WITHOUT THE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.

DAVID E. JACKSON,

Defendant-Appellant.

______________________________________________

November 27, 2013

Submitted October 16, 2013- Decided

Before Judges Messano and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-04-0301.

Joseph E. Krakora, Public Defender, attorney for appellant (Joseph Anthony Manzo, Designated Counsel, on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On August 9, 2010, defendant David Jackson pled guilty before Judge Timothy G. Farrell to count two of Salem County Indictment No. 09-04-301 ("Indictment 301") charging him with third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(5), and count one of Salem County Indictment No. 10-05-00199 ("Indictment 199"), charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). The State agreed to dismiss the remaining counts of both indictments at sentencing.

Defendant consented to imposition of an extended term based upon his prior convictions. The State agreed to recommend an eight-year term of imprisonment with a four-year period of parole ineligibility on Indictment 301, and a concurrent four-year term on the other indictment.

During the plea colloquy, defendant was placed under oath and questioned by defense counsel regarding his understanding of the plea bargain. Defendant indicated he understood its terms. Defendant further acknowledged that he was waiving certain rights by pleading guilty, the answers on the plea form were accurate and no one had threatened or coerced him into pleading guilty. Defendant provided a factual basis for both guilty pleas.

Represented by successor defense counsel, defendant filed a motion to withdraw his guilty plea, which Judge Farrell considered on the date set for sentencing.1 Defendant asserted that he had wished to plead guilty to only Indictment 199 and proceed to trial on Indictment 301; however, the prosecutor would not agree. Defendant claimed that, as a result, he was confused and did not voluntarily plead guilty to Indictment 301.

The judge considered the argument and applied the factors set forth by the Court in State v. Slater, 198 N.J. 145, 157-58 (2009). Judge Farrell first noted that defendant had not "asserted a colorable claim of innocence." Id. at 157. Considering "the nature and strength of defendant's reasons for withdrawal," id. at 157-58, the judge found "no basis [of] support" for defendant's motion. Judge Farrell noted the existence of a plea bargain, the third Slater factor. Id. at 158. Lastly, the judge found that permitting withdrawal of the plea would not prejudice the State or unfairly advantage defendant. Ibid. After weighing these factors, Judge Farrell denied the motion and imposed sentence in accordance with the plea bargain.

Defendant did not file a direct appeal, however, he filed a timely pro se petition for post-conviction relief (PCR) in which he alleged that trial counsel provided ineffective assistance. Specifically, defendant certified that "counsel gave him misinformation and advice[,] and the sentence was not in agreement with the plea form as . . . counsel le[d] [defendant] to believe."

After PCR counsel was assigned, defendant filed a supplemental certification in which he noted that question fourteen on the plea form indicated that the State was not seeking an extended term of imprisonment. Defendant claimed that based on a conversation he had with successor counsel, he believed he "was going to receive two flat [four-year] sentences to run concurrent with each other." PCR counsel advanced other arguments in her brief, including that trial counsel failed to adequately investigate and consider potential defenses.

After considering oral argument, Judge Farrell issued a written opinion explaining his reasons for denying defendant's petition. The judge listed defendant's prior involvement with the criminal justice system, including seven prior juvenile adjudications, seven prior disorderly persons convictions and three prior indictable convictions. The judge found "it inconceivable that [defendant] had any confusion about the plea process and the ramifications of a guilty plea." Judge Farrell also cited extensively to the transcript of the plea proceedings, which belied defendant's claim that he was unaware of the terms of the plea bargain or the consequences of his guilty pleas. Judge Farrell further noted that defendant was clearly advised that the sentence was "in the extended term range."

Judge Farrell also rejected defendant's contention that trial counsel failed to investigate the case or possible defenses. This centered on the fact that, as to Indictment 301, the drugs in question were found in the glove compartment of the car in which defendant was a passenger. However, Judge Farrell correctly noted that defendant "never argued or suggested that, the drugs were not his." The judge concluded "[t]here is nothing in the record to support the argument that . . . trial counsel failed to adequately investigate viable defenses." Judge Farrell entered an order denying defendant s petition, and this appeal followed.

Before us, defendant raises the following point for our consideration:

POINT I

BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING

We have considered the argument in light of the record and applicable legal standards. We affirm substantially for the reasons set forth by Judge Farrell. We add the following limited comments.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.

When a guilty plea is part of the equation . . . , "a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."

[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 528 (1994) (alteration in original).]

"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). The court "shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative." R. 3:22-10(e)(2); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel.") (emphasis omitted), certif. denied, 162 N.J. 199 (1999). "To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b); see also State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (same). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).

Defendant argues before us that "trial counsel failed to investigate the true ownership of the drugs found in the suspect vehicle." However, when defendant plead guilty under oath to count two of Indictment 301, the following exchange took place:

Counsel: And on that day, you did have cocaine on your person?

Defendant: No. I didn't have it on my person. They found it in the vehicle.

Counsel: Okay. And you knew that cocaine . . . that they found in the vehicle was yours; is that correct?

Defendant: Yeah, I guess. You could say that. That's basically yeah.

Counsel: It was yours?

Defendant: Yes.

Counsel: All right. And the purpose that you had it in that vehicle was to distribute it to other individuals; is that correct?

Defendant: Yeah.

Any claim that trial counsel failed to adequately investigate is spurious.

Similarly, the continued reassertion that trial counsel provided ineffective assistance that led to defendant's ignorance or confusion about the terms of the plea bargain is belied by the actual transcript of the proceedings, to which Judge Farrell cited extensively. We are firmly convinced that defendant completely understood the parameters of the plea bargain and entered his guilty pleas knowingly and voluntarily after having received the effective assistance of counsel.

Affirmed.

1 The record does not include this motion.