STATE OF NEW JERSEY v. JERMAINE 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NOT FOR PUBLICATION WITHOUT THE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.

JERMAINE JACKSON,

Defendant-Appellant.

_____________________________________

September 23, 2015

Submitted November 12, 2014 Decided

Before Judges Messano and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-02-0114.

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

Camelia M. Valdes, Passaic County Prosecutor, attorney for the respondent (Keith E. Hoffman, Senior Assistant Prosecutor on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

SUMNERS, J.A.D.

Defendant Jermaine Jackson appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

On May 22, 2000, defendant was involved in the brutal beating of twenty-two year old Maurice Giles, who was hospitalized in critical condition, and remains brain-damaged today. An eye-witness identified the defendant as one of the men who took part in the assault. A grand jury indicted the defendant and his two accomplices for attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3, and N.J.S.A. 2C:2-6 (count one), aggravated assault, N.J.S.A. 2C:12-1(b)(1) and N.J.S.A. 2C:2-6 (count two), possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d) and N.J.S.A. 2C:2-6 (count three), and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) and N.J.S.A. 2C:2-6 (count four).

On May 6, 2002, the trial judge heard defendant's pretrial motion for a Wade1 hearing, and denied it the next day. A jury trial was held May 7-16, 2002. Defendant was absent from his trial, despite his attorney's attempt to have him appear. The jury returned a guilty verdict for counts one, three and four, with count two being dismissed due to the verdict on count one. Defendant was sentenced on March 14, 2003, to an extended prison term of thirty-six years with a mandatory minimum sentence of seventeen years.

On May 19, 2003, defendant filed an appeal, which was dismissed for lack of prosecution in May 2004. After his private counsel's motion to be relieved was granted, defendant was assigned counsel, who successfully moved to reinstate the appeal on January 10, 2008. On April 1, 2009, we affirmed the conviction, but remanded the matter for resentencing in light of State v. Pierce, 188 N.J. 155 (2006). See State v. Jackson, No. A-4726-02 (App. Div. April 1, 2009) (slip op. at 16-17). On September 11, 2009, defendant was resentenced to the same term.

On January 19, 2010, defendant filed a petition for PCR alleging ineffective assistance of counsel (IAC). Defendant contended that: 1) trial counsel failed to subpoena a witness; 2) trial counsel failed to argue against the admission of Rule 404(b) testimony that defendant was a "drug dealer"; 3) appellate counsel failed to challenge the trial court's failure to grant a Wade hearing regarding the identification; and 4) there was cumulative error.

Following argument, Judge Raymond A. Reddin gave his oral decision denying the PCR petition and request for evidentiary hearing. He subsequently issued a written decision confirming his oral decision. The judge held that defendant did not establish a prima facie claim of IAC as required by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by our Court in State v. Fritz, 105 N.J. 42, 52 (1987).

Specifically, the judge held that trial counsel's decision not to call a witness did not constitute ineffective counsel. Exercising the high degree of deference prescribed in Strickland, the judge determined that the strategic decision to not call a particular witness "might be considered sound trial strategy." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695. The judge additionally determined that had trial counsel called the witness, the outcome would have been the same. The judge reasoned that the witness's credibility suffered; his pre-indictment affidavit placing defendant at the crime scene contradicted his grand jury testimony that he could not identify anyone involved in the incident. Moreover, trial counsel was not aware of the affidavit until trial, in part, because defendant decided not to appear at trial. In his comments from the bench, the judge also explained that placing defendant in a vehicle at the scene of the beating does not exculpate him under accomplice liability.

The judge also found no merit to defendant's claim that trial counsel failed to argue against the admission of 404(b) testimony. The record reflected that counsel argued that the victim's testimony should be limited to defendant's actions the day of the beating, barring mention that he sold drugs for the defendant and that defendant assaulted him because he owed defendant drug sale proceeds. Further, the judge held that under Rule 3:22-4 and Rule 3:22-5 the defendant may not utilize PCR to assert claims that should be raised on direct appeal.

As for the Wade hearing claim, the judge noted that the record reflects that trial counsel requested a Wade hearing, but the judge exercised his discretion not to conduct a hearing, and further, that if defendant wanted to appeal that decision, he would need to do so on direct appeal, not in a PCR petition. The judge reasoned that appellate counsel did not raise the issue on appeal because it was a meritless claim.

Lastly, the judge rejected defendant's cumulative error argument because there was no merit to any of his PCR arguments. This appeal followed.

Before us, defendant argues

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO CALL A WITNESS WHO COULD HAVE PROVIDED POTENTIALLY EXCULPATORY TESTIMONY ON THE DEFENDANT'S BEHALF.

In his pro se supplemental appellate brief, defendant

argues

POINT I

THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT REQUEST FOR A WADE HEARING ON THE ISSUE OF THE SUGGESTIVENESS AND RELIABILITY OF THE OUT-OF-COURT IDENTIFICATION WHICH WAS IMPERMISSIBLY SUGGESTIVE AND CREATED A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A WADE HEARING CONCERNING THE OUT-OF-COURT IDENTIFICATION PURPORTEDLY PROVIDED BY KAREEM BOYD.

In his pro se supplemental reply brief, defendant argues

POINT I

THE TRIAL COURT'S DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL.

A. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BY VIRTUE OF HIS FAILURE TO MAKE APPLICATION FOR SEVERANCE OF HIS TRIAL WITH CO-DEFENDANTS; TRIAL COUNSEL['S] FAILURE TO ENTER A DEFENSE MOTION OF THIRD-PARTY GUILT; TRIAL COUNSEL['S] FAILURE TO SECURE EXPERT TESTIMONY ON THE EFFECT OF DRUGS AND ALCOHOL IN CONNECTION WITH THE WITNESS OUT-OF-COURT IDENTIFICATION AND THE RELIABILITY OF SAID TESTIMONY; AND THE FAILURE TO CONDUCT ADEQUATE PRETRIAL INVESTIGATION.

B. THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BECAUSE HE FAILED TO RAISE THE ISSUE OF CONFLICT OF INTEREST BETWEEN DEFENSE COUNSEL AND DEFENDANT AND FAILED TO RAISE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL

POINT III

NOTWITHSTANDING THE MERITS OF THE APPELLANT'S ARGUMENTS, THE PETITION FOR POST-CONVICTION RELIEF SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING WHEREIN APPELLANT COULD HAVE ESTABLISHED HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

II.

We begin with the well-settled principles guiding our review. "Because post-conviction relief is not a substitute for direct appeal and because of the public policy 'to promote finality in judicial proceedings,' our rules provide various procedural bars." State v. Echols, 199 N.J. 344, 357 (2009) (quoting State v. McQuaid, 147 N.J. 464, 483 (1997)). "[A] petitioner may be barred from relief if the petitioner could have raised the issue on direct appeal but failed to do so, Rule 3:22-4[, or] the issue was previously decided on direct appeal, Rule 3:22-5[.]" Ibid.; see also State v. Nash, 212 N.J. 518, 546 (2013) (citing R. 3:22-4(a)).

To establish a claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth in Strickland. "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).

The first prong "requires [a] showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The test is whether "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prove this element, a defendant must demonstrate "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. Thus, "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Warlock, 117 N.J. 596, 625 (1990)(citing Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52); see also Echols, supra, 199 N.J. at 361 (rejecting ineffective assistance claim, noting "there being no reversible error in the prosecutor's comments, the failure of trial counsel to object . . . could not lead to the conclusion that there is a reasonable probability that, but for the errors of trial and appellate counsel, the outcome would have been different").

A court reviewing a PCR petition based on IAC claims has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. State v. Preciose, 129 N.J. 451, 462 (1992). The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super 154, 170 (1999). When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. It follows that a "defendant must allege specific facts and evidence supporting his allegations[,]" State v. Porter, 216 N.J. 343, 355 (2013), and "do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." State v. Jones, 219 N.J. 298, 312 (2014).

Applying these principles, we affirm substantially for the reasons expressed by Judge Reddin in his oral opinion and written decision. We add only the following comments.

In his pro se supplemental brief, defendant contends that the trial court failed to grant a Wade identification hearing. In doing so, defendant centers his argument on the trial court's denial of the Wade hearing, rather than ineffective assistance of trial counsel. The issue as to whether the court erred in not granting a Wade hearing is one that must be raised on direct appeal, not in a PCR petition. R. 3:22-4.

We also conclude defendant's arguments of ineffectiveness of trial and appellate counsel raised for the first time in his pro se reply brief do not provide any specificity to those claims and lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).