STATE OF NEW JERSEY v. JERRY A. JONES

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0100-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JERRY A. JONES,

     Defendant-Appellant.
______________________________

                    Submitted October 16, 2018 – Decided October 26, 2018

                    Before Judges Rothstadt and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 12-12-0865.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Amira R. Scurato, Designated Counsel;
                    William P. Welaj, on the brief).

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (Milton S.
                    Leibowitz, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Jerry A. Jones appeals from a July 31, 2017 order denying his

petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

      On March 1, 2013, by negotiated agreement, defendant pleaded guilty to

one first-degree and two second-degree sexual assault offenses, and one fourth-

degree count of criminal sexual contact.        The State agreed to dismiss the

remaining twenty-one counts of the indictment and recommended an aggregate

thirteen-year term in prison subject to the No Early Release Act,  N.J.S.A. 2C:43-

7.2. Defendant appealed and an excessive sentencing panel affirmed defendant's

sentence. State v. Jones, No. A-0644-13 (App. Div. Jan. 14, 2014).

      On June 9, 2016, defendant filed a pro se PCR petition and an amended

petition on February 15, 2017, which he supplemented by appointed PCR

counsel's February 6, 2017 brief and May 1, 2017 letter. Before the PCR court,

defendant maintained he received ineffective assistance of trial counsel and was

"innocent of [the] charges . . . [but] was coerced by trial counsel to plead guilty."

PCR counsel added that defendant was denied effective assistance because

"[trial] counsel failed to competently prepare defendant's case" and "conduct a

full and complete pre-trial investigation", including interviewing witnesses,

which would have demonstrated that a guilty plea was unwarranted.


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      Further, in his May 1, 2017 letter to the PCR court, PCR counsel asserted

that defendant's petition should be granted because "he established a colorable

claim of innocence and he has strong grounds to withdraw his plea" under the

test set forth in State v. Slater,  198 N.J. 145 (2009). At oral argument, however,

PCR counsel explicitly advised the court that he was not making a motion to

retract defendant's guilty plea but merely cited Slater "in conjunction with the

argument that the guilty plea [was not] voluntary."

      The PCR court denied defendant's petition for reasons detailed in a

comprehensive oral decision. The court noted that defendant failed to present

any evidence, by way of certification or otherwise, to support his claim that trial

counsel failed to investigate his case. As to defendant's claim that trial counsel

failed to interview central witnesses, the court noted that defendant failed to

identify specifically any such witnesses.     Further, the court explained that

defendant's claim that he was coerced into pleading guilty was nothing more

than a bald, unsupported allegation and was belied by the plea colloquy where

defendant admitted his guilt, gave a detailed factual basis for the crimes, stated

his plea was given voluntarily without coercion, and was satisfied with his

counsel's representation.   The court also denied defendant's request for an

evidentiary hearing.


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      Defendant appeals, arguing:

            POINT I

            THE POST-CONVICTION RELIEF 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 FROM TRIAL COUNSEL.

      We find insufficient merit in defendant's arguments to warrant extended

discussion in a written opinion, Rule 2:11-3(e)(2), and add only the following

brief comments.

      As for defendant's claim that trial counsel was ineffective because he was

unprepared for trial and coerced him to enter the plea, the PCR court correctly

applied the Strickland/Fritz1 test and concluded that defendant only made

unsupported assertions expressing his subjective belief about the state of

counsel's preparation. Defendant failed to supply a certification that specifically

identified anything in the record that established a prima facie case of

ineffectiveness or otherwise suggested the need for an evidentiary hearing. See

State v. Marshall,  148 N.J. 89, 158 (1997).


1
  Strickland v. Washington,  466 U.S. 668, 687 (1984); State v. Fritz,  105 N.J. 42, 58 (1987).


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      Further, defendant's claim that counsel coerced his guilty plea is belied by

the colloquy between the trial court and defendant during the plea hearing. The

trial judge patiently and carefully reviewed the matter with defendant who

acknowledged that he understood he was waiving his right to trial. Defendant

also affirmed that no one forced him to enter into the plea agreement or to plead

guilty.

      Finally, defendant's reliance on Slater is misplaced. A motion to withdraw

a guilty plea must be made before sentencing, "but the court may permit it to be

made thereafter to correct a manifest injustice." R. 3:21-1. Here, defendant

never filed a motion to withdraw his guilty plea and when the PCR court inquired

of PCR counsel if his May 1, 2017 letter was a request by defendant to withdraw

his plea, PCR counsel explicitly stated it was not. Thus, we reject any attempt

by defendant to raise the issue for the first time on appeal. Zaman v. Felton,

 219 N.J. 199, 226-27 (2014).

      However, even were we to address the issue substantively, our review of

the record confirms there is no basis under Slater to vacate defendant's plea.

Nowhere in the record does defendant establish a colorable claim of innocence

and as we have detailed, any claim that defendant was coerced into entering his

plea is baseless.   Finally, the plea was on extremely favorable terms for


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defendant. Thus, neither Slater nor Strickland/Fritz provide any support for

defendant to withdraw his negotiated plea.

      Affirmed.




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