STATE OF NEW JERSEY v. JAKEEM POPE

NOT FOR PUBLICATION WITHOUT THE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-5298-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAKEEM POPE,

     Defendant-Appellant.
_______________________

                   Submitted February 23, 2021 – Decided March 10, 2021

                   Before Judges Fisher and Gilson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 09-02-0161.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Lyndsay V. Ruotolo, 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
       We previously remanded this matter to the trial court to conduct an

evidentiary hearing on defendant's claim in his post-conviction relief (PCR)

petition that he was denied the effective assistance of counsel; he claimed his

trial attorney failed to adequately advise him, during the course of his 2009 trial,

about his choice to either remain silent or testify. After hearing the testimony

of the trial attorney and defendant, the judge determined that the trial attorney

effectively advised defendant and denied relief. Because the judge's decision

was based on fact findings to which we must defer, we affirm.

       To put the matter in context, we briefly describe the prior proceedings. At

trial, defendant was acquitted of first-degree murder but convicted of first-

degree aggravated manslaughter and later sentenced to an eighteen-year NERA1

prison term. Defendant appealed, we affirmed, State v. Pope, No. A-0883-10

(App. Div. 2012), and the Supreme Court denied defendant's petition for

certification,  213 N.J. 397 (2013).

       Defendant filed a timely PCR petition, alleging he was denied the

effective assistance of counsel because his trial attorney advised him not to

testify despite his fervent desire to do so. He also argued that his trial attorney

should have called two witnesses whom defendant believes would have provided




1
    No Early Release Act,  N.J.S.A. 2C:43-7.2.
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exculpatory evidence. The PCR judge denied the petition without affording

defendant an evidentiary hearing.

      Defendant appealed the denial of his PCR petition. We rejected his

argument about the two witnesses but agreed defendant was entitled to an

evidentiary hearing on his claim that his attorney failed to adequately advise him

about the decision to testify or remain silent. State v. Pope, No. A-1835-14

(App. Div. Sept. 22, 2016) (slip op. at 3-5). We held that although there was no

doubt the trial judge had explained to defendant that he had the right to either

testify or remain silent, this did not mean defendant had enough information to

make that choice. Ibid. For example, defendant argued in his PCR petition that

his trial attorney

             did not explain to me the generalities regarding giving
             trial testimony, nor did counsel tell me what questions
             he would ask or even what topics trial counsel would
             cover if I did testify. Trial counsel also did not prepare
             me, I any way, for cross-examination.

             Because of trial counsel's lack of preparation, I felt that
             I was not being provided with the information that I
             needed to make intelligent and informed decision
             regarding my case, and in particular, whether or not I
             should testify on my own behalf during the trial. . . . I
             felt like I did not have any other choice but to do what
             counsel told me to, namely, not to testify at the trial on
             my own behalf.

We remanded for an evidentiary hearing so the PCR judge could determine

whether there was truth to defendant's prima facie claim of ineffectiveness and
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whether that ineffectiveness, if proven, prejudiced defendant's choice between

testifying or remaining silent. Id. at 5.

      The PCR judge 2 heard the testimony of defendant and his trial attorney

over the course of a three-day evidentiary hearing in early 2019. The trial

attorney testified that he remembered discussing with defendant this choice of

testifying or remaining silent. Although the attorney could not specifically

recall what they said ten years earlier, he did remember that because defendant

gave inculpating statements to a wired informant – that would likely be used

against him during defendant's cross-examination if he chose to testify – it

"didn't ever seriously appear [o]n the radar screen that [defendant] ever wanted

to testify or that he would testify." The attorney further explained that he would

never say a client could or could not to testify and he "would never . . . not

[have] had a discussion with a client about the pros and cons of his testifying ."

      Defendant testified at the hearing that he told his attorney at an early pre-

trial meeting that he wanted to testify, although he acknowledged he did not

repeat this during later pre-trial meetings. In short, defendant's testimony was

similar to what he alleged in his PCR petition quoted above.




2
   Prior to the hearing, defendant moved to disqualify the judge who had both
presided over the trial and the first PCR proceeding. Because that judge had
retired, the motion was dismissed as moot.
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      The judge found defendant's trial attorney credible and that he had

provided defendant with sufficient advice for defendant to choose between

testifying or remaining silent.    The judge did not find credible defendant's

testimony that he had a "deep desire to testify" or his assertion that he was not

provided with sufficient information to make the decision. The judge concluded

that defendant was informed by the trial judge of his rights, that he was

adequately counseled by his attorney in making that choice, and that defendant

knowingly waived the right to testify. The judge also recognized the soundness

of the decision not to testify because "defendant made two statements to an

informant indicating that he shot the victim in this case."

      Because they are grounded on testimony found credible, the judge's

findings deserve our deference. State v. Nash,  212 N.J. 518, 540-41 (2013). We

find no merit in defendant's sole argument in this appeal that the PCR judge

erred in denying his ineffectiveness claim based on the adequacy of the advice

about testifying at trial, and we affirm substantially for the reasons set forth by

Judge Lisa Miralles Walsh in her written opinion.

      Affirmed.




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