Opinion
DOCKET NO. A-1819-12T3
04-29-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AKBAR JACKSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-11-3708.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Akbar Jackson appeals from the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial judge correctly determined the evidence insufficient to sustain defendant's burden, we affirm.
Defendant, who was thirty-five years old and had four prior indictable convictions, faced a fifteen-count indictment arising out of a carjacking. The indictment alleged that defendant threatened the driver with an operable handgun for which defendant did not have a permit, took the car and stole the driver's wallet and computer, eluded police in a high-speed chase during which he collided with other cars, and, after being apprehended, resisted arrest, injuring one of the officers and damaging the police car by kicking out a window. Because he had been convicted previously of a Graves Act offense, he was mandatory extended-term eligible and, if convicted of all counts of the indictment, faced a life term with a maximum period of parole ineligibility of seventy-five years. After defendant rejected the State's plea offer of twenty years with an eighty-five percent period of parole ineligibility, the case was scheduled for trial.
N.J.S.A. 2C:43-6c.
In the midst of jury selection, defendant advised his counsel that he wanted to take the State's last plea offer. The State agreed to recommend the same sentence it had previously offered, in exchange for defendant's plea to all counts of the indictment. Following an extensive colloquy, Judge Vichness accepted defendant's guilty plea.
Prior to sentencing, defendant moved to withdraw his plea. At an evidentiary hearing at which he and his former trial counsel testified, defendant contended that he had lost confidence in his counsel because counsel had urged him to enter a plea and failed to file a Wade motion to suppress his identification by the driver. Defendant maintained that he entered the plea because "[i]t was the only way to stop the trial." On cross-examination however, defendant was forced to admit that he had met with counsel several times to review the discovery and knew the court was going to conduct a Wade hearing following jury selection. Trial counsel testified that he was prepared to try the case and that defendant had approached him about a plea during jury selection. Counsel acknowledged that he had previously counseled defendant to accept the State's plea offer. According to trial counsel,
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
There were certain charges included in this indictment that I felt he had little to no chance of winning at trial. And my concern was that even if he did get a verdict of not guilty on the carjacking charge[,] that if
he were convicted of the aggravated assault, receiving stolen property[,] as well as the eluding charges, that his sentence for those charges, considering his record[,] would be more than that which he could get on a plea to the entire indictment.
In a thorough and thoughtful opinion from the bench, Judge Vichness denied defendant's motion to withdraw his plea, finding that defendant had engaged in an extended effort to "manipulate the court" to his advantage. The judge sentenced defendant in accordance with the plea agreement to a term of twenty years, subject to periods of parole ineligibility and supervision as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's sentence and the denial of his motion to withdraw his plea on a sentencing calendar. See R. 2:9-11.
On November 9, 2011, almost seven years after his convictions, defendant filed a PCR petition. He contended his counsel was ineffective for failing to object to the imposition of a NERA sentence "without petitioner being presen[t]," failing to request a Wade hearing, failing "to object to the trial court negotiating a NERA plea of 20 years," and failing to perform any pretrial investigation. In a supplemental petition and brief, defendant contended that he advised his trial counsel that the victim had been pressured into identifying defendant as the person who carjacked him at gunpoint. According to defendant, had his counsel sent an investigator to timely interview the victim, he would have learned that the police pressured the victim into making the false identification because of defendant's prior encounters with the officers. Defendant also claimed that he failed to file a timely petition because he "served a significant portion of his sentence - 2008, 2009 and 2010 - in administrative segregation" without "access to the assistance of paralegals working in the prison who normally assist with such matters."
Judge Moore heard argument on the petition and determined that defendant's claim was not time-barred under Rule 3:22-12(a)(1). The judge found that the circumstances surrounding defendant's delay in filing his petition could constitute excusable neglect and that the matter should thus be considered on the merits.
Analyzing defendant's claims under the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), the judge rejected defendant's claim that his counsel had been ineffective in any respect. The judge found that defendant's claims that his counsel was not prepared for trial because he had failed to investigate the victim's identification of defendant as the carjacker or seek a Wade hearing had been thoroughly explored, and rejected, by Judge Vichness at an evidentiary hearing, and that there was no evidence in the record to support those or any other of defendant's claims.
On appeal, defendant argues that the matter must be remanded for an evidentiary hearing on defendant's claim that trial counsel rendered ineffective assistance by failing to investigate in preparation for a Wade hearing and for trial. We disagree.
Counsel also incorporates all other claims raised by defendant in this appeal.
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We, instead, concur with Judge Moore that defendant's claims that his counsel was not prepared for trial and failed to seek a Wade hearing were refuted at the evidentiary hearing conducted by Judge Vichness. Defendant's claims that he was not present for imposition of his sentence and that the judge "negotiated" his NERA plea likewise lack any factual support in the record. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
In addition, trial counsel testified at the hearing before Judge Vichness that even if the defense could prove that the victim's identification of defendant as the carjacker had been tainted, leading to an acquittal on the carjacking charge, there was "little to no chance" of prevailing on the charges of aggravated assault, eluding and receiving stolen property. Defendant's attorney counseled him to enter a plea because defendant's sentence on those charges, in light of his prior record, would likely have exceeded the sentence he received in exchange for pleading to the entire indictment. Defendant has not shown that advice was in any way deficient. For defendant to have rejected the plea under those circumstances would simply not have been rational. See Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010). Accordingly, defendant cannot establish that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); accord State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). As the judge noted, the record clearly indicates that it was the "generosity" of the plea, and not the identification issue, that motivated defendant to plead to the indictment.
Because we agree that defendant failed to establish a prima facie case of ineffective assistance on the merits, we need not address whether defendant's petition was time-barred. See R. 3:22-12(a)(1) and State v. Brewster, 429 N.J. Super. 387, 388 n.3 (App. Div. 2013) (explaining that the 2010 revisions to Rule 3:22-12 made the rule's time limitations non-relaxable unless the petition alleges facts showing excusable neglect and there exists a reasonable probability that fundamental injustice would result from a failure to consider the petitioner's claims on their merits).
Finally, we reject defendant's argument that the judge should have held an evidentiary hearing on the petition. A judge's decision as to whether to hold an evidentiary hearing on a PCR petition alleging ineffective assistance of counsel is discretionary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b). No hearing is required unless defendant has established a prima facie case, that is, a reasonable likelihood of success under Strickland. Preciose, supra, at 462-63. Here, the critical facts had already been established on defendant's motion to withdraw his guilty plea. As defendant did not establish a prima facie case for relief, no evidentiary hearing was required.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION