Opinion
DOCKET NO. A-5106-13T1
04-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMAR JENKINS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, on the brief).
FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-07-1205. Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Jamar Jenkins appeals from a May 8, 2014 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
We glean the salient facts from the record. On May 5, 2009, defendant placed an order for Chinese food, requesting that the food be delivered to an apartment in Edison. When the deliveryman arrived, defendant struck him several times in the head, face, and hands with a "blackjack" club, and took $140 in cash from him. Following a search of the area, officers of the Edison Police Department located defendant, who attempted to flee from the officers on foot.
Defendant was eventually arrested, and charged with first-degree robbery, N.J.S.A. 2C:15-1 (count one), third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count two), fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(e) (count three), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count five). Defendant entered into a plea agreement with the prosecutor, pleading guilty to count one in exchange for the prosecutor's dismissal of counts two through five and recommendation that defendant be sentenced as a second-degree offender with a maximum prison term of seven years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The sentencing hearing tolok place on April 5, 2010, before Judge Bradley J. Ferencz. At the hearing, defendant's attorney asked the judge to adjourn the sentencing hearing so that defendant could enroll in a substance-abuse program. Judge Ferencz denied this request.
Explaining that defendant's substance abuse problem "led to [defendant] doing what he did," defendant's attorney requested Judge Ferencz to "temper justice with mercy," and sentence defendant to five years in prison. Defendant's attorney also made reference to a letter that defendant's mother wrote to the court, explaining her son's drug problem. Judge Ferencz indicated he read the letter. Speaking for himself, defendant accepted responsibility for his crime, and asked the court "to help [him]." At the conclusion of the sentencing hearing, Judge Ferencz sentenced defendant to a seven-year prison term, subject to NERA, consistent with the terms of the plea agreement.
Defendant filed an appeal, challenging the length of his sentence. The appeal was heard on our excessive sentence calendar. We affirmed defendant's sentence, concluding that it was not manifestly excessive or unduly punitive, and did not constitute an abuse of discretion. State v. Jenkins, No. A-5333-10 (App. Div. Dec. 14, 2011). Defendant filed a notice of petition for certification with the Supreme Court, which was dismissed for lack of prosecution.
On April 2, 2013, defendant filed a pro se petition for PCR, claiming that his attorney was ineffective for failing to raise diminished capacity as a defense. With the assistance of assigned counsel, defendant filed a supplemental certification in support of his petition, arguing that his attorney failed to communicate to the sentencing court that defendant wanted to receive help for his drug problem.
On May 8, 2014, following oral argument, Judge Ferencz denied defendant's petition without an evidentiary hearing. The judge initially concluded that defendant's petition was procedurally barred by Rule 3:22-5 because he was basically challenging his sentence, which this court previously affirmed on defendant's direct appeal. Notwithstanding this determination, Judge Ferencz also denied defendant's petition on the merits, concluding that defendant had failed to establish a prima facie case of ineffective assistance of counsel.
Defendant then filed this appeal, raising the following issues for consideration:
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND [N.J. CONST. ART. I, ¶ 10].
A. Counsel's Failure To Have Petitioner Evaluated Was Ineffective Assistance Of Counsel.
B. This Petition Is Not Barred By Rule 3:22-5.
C. The Court Should Have Held An Evidentiary Hearing.
Following our review of the record, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Ferencz in his cogent written opinion. We add the following comments.
To establish a prima facie case of ineffective assistance of counsel, defendant was required to show: (1) his counsel's performance was objectively deficient; and (2) his counsel's deficient performance prejudiced him to the extent that he was deprived of his right to a fair trial. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United States Supreme Court's two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Our Supreme Court has defined "prejudice" as a reasonable probability that the deficient performance materially contributed to the petitioner's conviction. Ibid.
A petitioner for PCR is generally entitled to an evidentiary hearing upon showing a prima facie claim of ineffective assistance. State v. Porter, 216 N.J. 343, 354 (2013). To establish a prima facie claim, defendant was required to "allege specific facts and evidence supporting his allegations." Id. at 355. The trial court has discretion to dispense with an evidentiary hearing "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
On appeal, defendant argues that the performance of his attorney during his plea and sentencing was objectively deficient because he failed to have defendant undergo a substance-abuse evaluation. Defendant asserts that his attorney's failure to secure an expert report regarding defendant's drug dependence hurt his chances of obtaining an adjournment to receive substance-abuse treatment.
We need not address whether defendant's assertions are procedurally barred by Rule 3:22-5. Judge Ferencz addressed the merits and properly ruled that the performance of defendant's attorney did not fall below an objective standard of reasonableness, nor did it prejudice defendant during the sentencing proceedings. Citing extensively to the sentencing transcript, Judge Ferencz found that, contrary to defendant's assertion, defendant's drug dependency was "zealously argued" by his attorney. Judge Ferencz acknowledged that he was fully aware at the time of sentencing that defendant had a drug addiction, and that his addiction played a role in the commission of the robbery; however, drug dependency is not a mitigating factor. Accordingly, Judge Ferencz ruled that counsel's performance did not fall below the objective standard of reasonableness, and even if it did, the resulting sentence would not have been different.
In any event, defendant has not provided a certification stating that an expert would have discovered anything which was unknown to defendant, counsel, or the sentencing court. "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Porter, 216 N.J. 343, 355 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)).
Defendant further contends the PCR court erred by ruling on his petition without an evidentiary hearing. However, a hearing was not required in this matter because defendant failed to present a prima facie case of ineffective assistance of counsel. Porter, supra, 216 N.J. at 343 (citing State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b)).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION