Opinion
DOCKET NO. A-2066-11T3
08-25-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JERRON JORDAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah Terry, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (James G. Wilson, Chief Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Hoffman. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-06-0512. Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah Terry, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (James G. Wilson, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jerron Jordan appeals from a June 15, 2011 Law Division order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of trial and PCR counsel. Following our consideration of the arguments presented, we affirm.
Defendant was charged with sexually assaulting the victim from January 1998 to January 2001. At trial, the defense strategy suggested the victim fabricated the allegations. The jury convicted defendant of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). After merger, defendant was sentenced to an extended term of twenty-five years, with a twelve and one-half year period of parole ineligibility. On appeal, defendant's conviction was affirmed, but the matter was remanded for resentencing to comply with State v. Natale, 184 N.J. 458 (2005). On remand, a different Law Division judge considered the matter and imposed the same sentence. Defendant again appealed, challenging the sentence imposed, which we considered on our Excessive Sentencing Oral Argument calendar. A second remand was ordered for resentencing consistent with State v. Pierce, 188 N.J. 155 (2006). See State v. Jerron Jordan, No. A-3416-07 (App. Div. July 6, 2009). The record contains no information regarding whether this remand hearing was held.
Defendant filed for PCR alleging ineffective assistance of trial counsel. He maintained counsel failed to interview identified witnesses, including defendant's mother, who would have verified defendant was incarcerated from May 26, 1998 to November 5, 1999, which fell within the period the sexual abuse was alleged to have occurred; his sister and his substance abuse counselor, who would verify he entered a rehabilitation facility in January 2000; and his girlfriend.
The Law Division judge granted the request for an evidentiary hearing to consider the testimony of the absent witnesses. During the hearing, held on June 15, 2011, defendant and his mother testified.
Defendant's mother stated she was never contacted by defense counsel. She knew defendant was in the county jail beginning in 1998, and was released in time for his wedding in December 1999. She also related a statement she was told by her grandson, who repeated a comment he attributed to the victim.
Defendant testified in his own behalf. He noted the other witnesses he identified in his PCR petition refused to appear or were unable to be located. He asserted he was in a drug rehabilitation program from January 1998 to May 1998 then incarcerated in the Passaic County jail following an arrest for carjacking, robbery and other offenses, from May 26, 1998 to November 5, 1999. He was married on December 10, 1999. Defendant also gave his attorney the name of his drug counselor. He was told his lawyer sent an investigator, but he only spoke to a different counselor who remembered defendant's name and not his face. Defendant recounted his attorney advised it would be unwise to tell the jury he suffered from drug abuse and had been arrested for other crimes.
On cross-examination, defendant recognized a stipulation was presented during his trial, informing the jury he and the victim "had no person[al] contact with each other between the period of May 26[], 1998 up to and including November 5[], 1999." Nevertheless, when questioned during the PCR hearing, he claimed he did not remember the stipulation and also insisted it was insufficient because he wanted the jury to know the truth "that [he] was a drug addict." In response to subsequent questions, defendant admitted he was with the victim in 2000, a period covered in the indictment. Finally, defendant acknowledged his girlfriend had actually testified at his trial.
The judge considered and weighed the testimony and found no basis to order PCR. He determined counsel was not ineffective for shielding the jury from knowledge of defendant's drug abuse and 1998 arrest, concluding defendant's contrary assertion was "specious at best." Further, the judge found defendant's mother offered no exculpatory evidence because defendant's lack of contact with the victim during a portion of the time charged in the indictment was stipulated. In fact, the judge stated defendant received "an enormous benefit" from this stipulation. The judge denied the petition for PCR. This appeal followed.
On appeal, defendant argues:
POINT I
TRIAL AND POST-CONVICTION RELIEF COUNSELS' DEFICIENT PERFORMANCE MATERIALLY CONTRIBUTED TO DEFENDANT'S CONVICTION AND THE DENIAL OF HIS PETITION FOR POST-CONVICTION RELIEF.
A. TRIAL COUNSEL'S FAILURE TO INTERVIEW CRITICAL WITNESSES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AS SAID WITNESSES WOULD HAVE BOLSTERED THE DEFENSE'S THEORY OF THE CASE.
B. PCR COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE DID NOT CHALLENGE THE TRIAL COURT'S FAILURE TO RESENTENCE DEFENDANT IN ACCORDANCE WITH THE APPELLATE DIVISION'S JULY 6, 2009 ORDER (NOT RAISED BELOW).
"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).
It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); [] Preciose, [ supra,] 129 N.J.New Jersey has adopted Strickland's two-prong test. State v. Fritz, 105 N.J. 42, 58 (1987).
[at] 459 (reciting preponderance of the evidence standard of proof)[.]
[State v. L.A., 4 33 N.J. Super. 1, 13 (App. Div. 2013).]
Under the first prong of the Strickland test, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing that counsel was so deficient that "counsel was not functioning as the counsel guaranteed by the Sixth Amendment . . . ." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (internal quotation marks and citation omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Thus, "[t]his test requires [a] defendant identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (internal quotation marks and citation omitted). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).
To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.
Here, we reject as unfounded the notion that critical witness testimony was overlooked and ignored. Defendant's contention that counsel should have presented his mother and drug counselor to attest to his incarceration and in-patient drug treatment during a portion of the period covered in the indictment lacks merit. These witnesses could offer no testimony that would aid defendant. Fritz, supra, 105 N.J. at 65 (stating ineffective assistance based on an unavailable witness must show the witness's testimony would have aided the defense).
Moreover, counsel secured a stipulation, which informed the jury that defendant and the victim had no contact during the specified period he was in jail and receiving drug treatment, without revealing the nature of his unavailability. These facts demonstrate counsel knew and understood where defendant was during the period in question. Further, counsel obtained the State's consent to essentially tell the jury, that despite what she may have alleged, the victim could not have been assaulted by defendant from May 26, 1998 through November 5, 1999. Contrary to defendant's contention, counsel's performance was exceedingly effective.
Defendant also argues PCR counsel was ineffective for not requesting the remand hearing we ordered on July 6, 2009. Defendant did not raise this issue below; however, we consider the matter addressed important to the validity of defendant's sentence. We agree defendant is entitled to the hearing, as ordered, to reconsider the sentence imposed. On remand the resentencing hearing shall be conducted within thirty days.
The denial of PCR seeking to set aside defendant's conviction and grant a new trial is affirmed. Defendant failed to prove either the performance or prejudice prong required by Strickland. However, remand is necessary to conduct a hearing as previously ordered, to discern whether the extended term sentence imposed followed the requirements set forth in Pierce, supra, 188 N.J. at 163-70.
Affirmed in part and remanded for resentencing to be completed within thirty days. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION