STATE OF NEW JERSEY v. MARK JEFFERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1720-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK JEFFERSON,

Defendant-Appellant.

________________________________

Submitted October 24, 2011 Decided November 9, 2011

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey,

Law Division, Union County, Indictment No.

04-12-1413.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel,

on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Mark Jefferson appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of second-degree eluding, N.J.S.A. 2C:29-2(b), and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5). The trial court sentenced defendant to an eight-year term of imprisonment for eluding and a concurrent five-year term for aggravated assault. On appeal, we affirmed the judgment of conviction. State v. Jefferson, No. A-3396-05 (App. Div. Dec. 12, 2006).

Defendant's convictions arose from his attempt to flee police officers while operating a Jeep Cherokee. Defendant was initially observed by Cranford Police Officers Matthew Nazzaro and Michael Andrews speeding. They pursued him with overhead lights and siren activated, but defendant did not pull over. Instead, defendant sped through a condominium complex and then entered the Garden State Parkway northbound at Exit 137. The officers did not then give chase since they recorded his license plate number, entered it into the mobile data unit, and ascertained the Jeep was neither stolen nor wanted.

Only about a minute later, however, the officers were dispatched to an accident reported on the Parkway northbound between Exits 137 and 138. As the officers approached Exit 139A, they saw defendant's vehicle with its lights turned off and with heavy smoke coming from the rear of the vehicle. They recognized the vehicle as the same red Jeep they had been pursuing only minutes earlier, and confirmed this by checking the license plate. The officers followed the Jeep from the exit ramp and into a parking lot at the end of the ramp, where they observed significant damage to the rear of the vehicle, which had apparently hit the guardrail.

Ignoring the officers' commands to stop and get out of the vehicle, defendant instead kept stepping on the accelerator pedal trying to get the car to move. He continued trying to get the damaged car to shift gears even as Officer Andrews opened the driver's side door to the Jeep. Defendant finally got the Jeep into gear and it lurched backwards, forcing Officer Andrews to the ground and dragging him along with it for a few feet until Andrews fell to his right knee as the Jeep accelerated out of the parking lot.

Defendant then drove over a sidewalk and back onto the Parkway northbound at Exit 139A. The officers resumed their pursuit of the Jeep with lights and siren activated. As the Jeep came to a stop at the top of the on-ramp, the officers pulled the police car along side and then positioned their vehicle in front so that the Jeep could not drive away. Andrews got out of the car with his weapon drawn and ran to the Jeep's open driver-side window shouting, "Stop, stop. You are under arrest stop." Nazzaro also got out of the car and again heard the driver revving the engine in a similar manner as it had been doing in the parking lot. Defendant initially disregarded the officers' commands. However, after approximately twenty seconds, he unbuckled his seatbelt and stopped trying to put the Jeep into gear. Defendant got out of the car and was arrested.

Following our affirmance of his judgment of conviction, defendant filed a timely PCR petition, in which his counsel argued that defendant received ineffective assistance of counsel because his trial counsel was hostile and dismissive and this led to poor trial preparation. The PCR judge denied the petition, finding that "[o]ther than the allegations that defense counsel was dismissive and hostile, defendant has not pointed to any deficiency in counsel's performance." On the contrary, the PCR judge noted that during trial, defense counsel argued quite effectively that defendant did not knowingly or purposely attempt to cause serious bodily injury to the police officers, as defendant was acquitted of second-degree and fourth-degree aggravated assault. The PCR court thus concluded:

. . . defendant has not pointed to any evidence which could result in his complete, or even partial, exoneration. The two letters by defendant's wife only reiterate that defense counsel was hostile and dismissive towards defendant. A careful reading of the trial transcript shows that defense counsel performed reasonably. Accordingly, defendant has not satisfied the first prong of the Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] test.

On this appeal, defendant argues:

I. THE COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE FAILED TO RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS, VI, XIV; N.J. CONST. ART. I, PAR. 10.

II. THE COURT ABUSED ITS DISCRETION WHEN IT FAILED TO CONSIDER THE ARGUMENTS RAISED BY THE DEFENDANT IN HIS PRO SE PETITION FOR POST CONVICTION RELIEF.

We find no merit to these arguments. R. 2:11-3(e)(2).

It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prongs of the Strickland test.

The alleged deficiency was counsel's lack of communication, which supposedly led to limited pre-trial investigation and ineffective pre-trial planning. Yet, other than letters written by his fiancé stating that defense counsel was hostile, defendant offers nothing to establish a prima facie case of ineffective assistance of counsel. He points to no specific trial errors or lapses in counsel's performance that could be considered ineffective and indeed, as noted by the PCR judge, the trial record belies any such claim.

Defendant also contends the PCR judge failed to consider his pro se allegations, which we reiterate here:

(1) No probable Cause to detain or arrest (Illegal Terry Stop).

(2) No Probable Cause Hearing.

(3) Due Process and Equal Protection Violations. 14th Amendment.

(4) Evidence and the lack thereof that was knowingly with held [sic] from the Gran [sic] Jury, as well as, Trial Proceedings.

(5) Evidence entered by Prosecution in the form of a videotape which has not been Authenticated by an Expert, In addition; the Original is in the form of a DVD as recorded by the Police Car. Violation of N.J.R.E. 901.

(6) Trial Judge Erroneously failed to instruct (charge) the Jury on States [sic] Burden of Proof on the Essential Elements of Second Degree Eluding and the Including of and Instructing on Lesser Offense, to Hindering Apprehension and/or Forth [sic] Degree Resisting Arrest. 6th Amendment.

(7) Ineffective Assistance of (Trial) counsel.

(A) Denied Right to Change Counsel. Violations of Rights to Due Process.

(B) No Investigation of Law and Facts of Case.

(C) Failure [sic] and Refusal [sic] to file Any Motions On My Behalf.

(8) Ineffective Assistance of Counsel on Direct Appeal.

(A) Failure to address as with Sullivan v. Louisiana, 124 L. Ed. 2d 182, 508 U.S. 275, 113 S. Ct. 2078, Constitutionally deficient Criminal Jury instruction as to definition of reasonable doubt, for proving guilt beyond reasonable doubt, held not amenable to harmless error analysis.

(B) Counsel failure to Consult prior to submission of appeal on Direct, as well as, failure to amend on statement of factual statement as provided in Trial Statements and Reports.

(C) By failing to do so Violates Constitutional Rights to Due process, 6th amendment. And rights to Counsel.

We have considered each of these issues in light of the record, and the applicable law, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). In addition, other than his claims of ineffective assistance of trial and appellate counsel, defendant's remaining claims are all procedurally barred as they all could reasonably have been raised before. R. 3:22-4.