Opinion
DOCKET NO. A-1835-14T1
09-22-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAKEEM POPE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the letter brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fisher and Leone. 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 (Steven M. Gilson, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the letter brief). Appellant filed a pro se supplemental brief. PER CURIAM
At the conclusion of a jury trial, defendant was acquitted of first-degree murder but found guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and sentenced to an eighteen-year prison term subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was also convicted of weapons offenses, for which, following an appropriate merger, a concurrent four-year prison term was imposed; he was acquitted of other charges, including witness tampering. We affirmed the judgment of conviction, State v. Pope, No. A-0883-10 (App. Div. Aug. 1, 2012), and the Supreme Court denied defendant's petition for certification, 213 N.J. 397 (2013).
Defendant filed a timely post-conviction relief (PCR) petition, arguing he was denied the effective assistance of counsel because his trial attorney advised him not to testify despite his fervent desire to do so. In addition, defendant argued his trial attorney erred by failing to call two witnesses whom defendant believes would have provided exculpatory evidence. After hearing the argument of counsel, the trial judge rejected all defendant's arguments by way of a written opinion.
Defendant now appeals, arguing, both by way of his appointed attorney's brief and his own well-written supplemental brief that he was entitled to an evidentiary hearing on the issues raised in his PCR petition. We find insufficient merit in defendant's arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), except we agree defendant is entitled to an evidentiary hearing on his claim that he was not adequately counseled when deciding whether to testify at trial.
A PCR petitioner is entitled to an evidentiary hearing upon presentation of a prima facie case of ineffectiveness, State v. Preciose, 129 N.J. 451, 463 (1992), and when the facts urged in support are disputed or lie outside the existing record, State v. Porter, 216 N.J. 343, 353-55 (2013). In denying relief, the judge found his colloquy with defendant at trial was adequate to inform defendant of his right to either testify on his own behalf or remain silent, and to dispel any suggestion defendant had been pressured not to testify. To the extent the judge's observations were accurate, they did not address whether counsel properly advised defendant about the exercise of his rights.
That is, in rejecting defendant's contentions about the decision not to testify, the judge mistook defendant's understanding of his right to testify or remain silent with the adequacy of the information exchanged and the depth of the discussion between defendant and his attorney when the time came to choose whether to testify or remain silent. If it is true that counsel failed to adequately advise defendant at that critical stage, counsel's performance fell below the professional standard of care and bespoke prejudice. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant swore to the following in support of his PCR petition:
I believe that I did not receive the effective assistance of trial counsel. Despite my deep desire to testify at trial and profess my innocence, trial counsel told me not to testify.
Yet, my trial attorney never discussed with me testimony that might have been elicited during the trial should I have chosen to take the witness stand on my own behalf. Although I am innocent of the charges in this case, I did not testify on my own behalf because of trial counsel's failure to do so.
I did not know what to expect during the trial if I were to testify which truly undermined any ability to make informed decisions regarding that critical decision. My 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, in 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 decisions regarding my case, and in particular, whether or not I should testify on my own behalf during the trial. Under these limiting circumstances, therefore, 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.In making these sworn allegations, defendant presented a prima facie case of ineffectiveness. It remains for the trial court to assess and weigh these contentions at an evidentiary hearing, for which we remand.
Remanded for an evidentiary hearing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION