STATE OF NEW JERSEY VS. JASON PETTIS (09-08-1370 AND 09-08-1383, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1137-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASON PETTIS,
Defendant-Appellant.
Submitted October 31, 2017 – Decided November 13, 2017
Before Judges Yannotti and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment Nos. 09-08-1370 and 09-08-1383.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Arielle E. Katz,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Jason Pettis appeals from the denial of his petition
for post-conviction relief (PCR) without an evidentiary hearing.
For the reasons that follow, we affirm.
In October 2011, a jury convicted defendant of second-degree
aggravated assault, N.J.S.A. 2C:12-1b(1), as a lesser-included
offense of first-degree attempted murder, N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-3a(1) or (2) (count one); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5b (count two); and second-
degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a) (count three). In a second trial, the same jury
convicted defendant of second-degree possession of a weapon by a
prohibited person, N.J.S.A. 2C:39-7b.
On December 22, 2011, defendant was sentenced to an extended
term of fifteen years imprisonment on the aggravated assault
charge, with an eighty-five percent period of parole ineligibility
under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court
merged count two with count three, and imposed a concurrent seven-
year prison term. A consecutive five-year sentence with no parole
eligibility was imposed on the certain persons not to have weapons
offense, resulting in an aggregate twenty-year prison term with
seventeen years and nine months of parole ineligibility.
Defendant appealed and, in an unpublished opinion, we
affirmed his convictions and sentence, but remanded to correct an
2 A-1137-16T3
error in the judgment of conviction.1 State v. Pettis, No. A-
3508-11 (App. Div. Dec. 27, 2013). The Supreme Court denied
defendant's petition for certification. State v. Pettis, 218 N.J.
531 (2014).
The facts underlying defendant's convictions are set forth
in our earlier opinion and need not be repeated in the same level
of detail here. Pettis, supra, slip op. at 3-7 (App. Div. Dec.
27, 2013). Briefly summarizing, the State alleged defendant shot
the victim, Jarred Campfield, multiple times at close range. The
two men had allegedly been involved in a physical altercation
within the previous week. On the day in question, Campfield told
police "it was Jason" who shot him, and "he was wearing a white
t-shirt, blue jeans, and he had dreadlocks." Soon thereafter,
however, Campfield became uncooperative. At trial, Campfield
testified he did not know who shot him, and denied he provided
police with the name of the shooter.
Robert VanAnglen, a mutual acquaintance of defendant and
Campfield, testified he witnessed the shooting, and identified
defendant as the shooter. VanAnglen stated he heard defendant say
"what's up, home boy" to Campfield before shooting him five to
1
We directed that defendant's conviction for unlawful possession
of a weapon merge with the aggravated assault conviction rather
than the conviction for possession of a weapon for an unlawful
purpose.
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seven times. The State also presented evidence that defendant
left New Jersey after the shooting and was ultimately located in
Illinois nearly a year later.
In August 2014, defendant filed a PCR petition alleging
ineffective assistance of trial and appellate counsel. PCR counsel
was appointed and submitted a brief contending trial counsel failed
to: (1) conduct an adequate investigation, specifically by failing
to locate and interview Campfield prior to trial; (2) effectively
cross-examine witnesses; (3) effectively counter testimony that
defendant left the State while on probation; and (4) present
effective opening and closing statements. Defendant also
requested an evidentiary hearing on his petition.
Judge Joseph Paone, who was also the trial judge, denied
defendant's petition by order filed on October 13, 2016. Judge
Paone determined defendant failed to establish a prima facie case
in support of his petition after carefully analyzing each of
defendant's contentions.
In his comprehensive oral opinion, Judge Paone found that
trial counsel's pre-trial investigation and failure to interview
Campfield did not fall below an objective standard of
reasonableness. The judge added:
[I]t's clear here that [defendant] is unable
to articulate what benefit the interview of
[Campfield] would have accomplished here.
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[Defendant] knew exactly what the victim was
going to testify to prior to trial, and, in
fact, the victim testified, essentially, in
conformance with the information that had been
provided by the [S]tate to the defense before
the commencement of trial, and [defendant] has
failed to demonstrate how this decision not
to interview the victim has prejudiced him in
any way.
The judge further reasoned that Campfield's reluctance to
testify for the prosecution was irrelevant to the State's pre-
trial plea offer and would not affect the jury's determinations
because Campfield's on-the-scene identification of defendant as
the shooter was admissible as an excited utterance, N.J.R.E.
803(c)(2), and as a prior identification, N.J.R.E. 803(a)(3);2 and
because an independent eyewitness, VanAnglen, made a confirmatory
identification of defendant as the shooter.
With respect to defendant's other ineffective assistance of
counsel claims, Judge Paone found trial counsel's opening and
closing remarks sufficient. In his opening statement, counsel
"introduced the issue of identification[,] discussed the
prosecutor's role [and] urged the jury to pay [ ] careful attention
2
The judge also found Campfield's prior identification of
defendant was non-testimonial under Crawford v. Washington, 541
U.S. 36, 53-54, 124 S. Ct. 1354, 1365-66, 158 L. Ed. 2d 177, 194
(2004) (holding that the Confrontation Clause only forbids the
hearsay use of "testimonial" out-of-court declarants). See also
Davis v. Washington, 547 U.S. 813, 832, 126 S. Ct. 2266, 2279, 165
L. Ed. 2d 224, 243 (2006) (creating an exception for otherwise
testimonial statements under the "public safety exception").
5 A-1137-16T3
to the evidence[.]" Similarly, during closing remarks, trial
counsel discussed "the inconsistencies of the case, the witness'
credibility, [and] the fact [] defendant was not the shooter[.]"
The judge also found defendant was not prejudiced by counsel's
opening and closing statements.
Judge Paone rejected defendant's contention that trial
counsel failed to effectively cross-examine the State's witnesses.
He found that, while cross-examining Campfield, defense counsel
"established identification issues, specifically, that Campfield
had lied at some point about identifying defendant as the
shooter[.]" Similarly, while cross-examining VanAnglen, defense
counsel "highlighted the integral issue of identification in this
case by eliciting the [eyewitness's] description of the shooter
did not match [ ] Campfield's description based on what [counsel]
elicited through his adversarial testing of the prosecution's
witness."
Judge Paone found unpersuasive defendant's argument that
trial counsel was ineffective in exploring why defendant violated
his probationary program and fled to Illinois after the shooting.
Rather, to combat the State's theory that this showed consciousness
of guilt, defense counsel offered "an alternative motive for
defendant's flight, that his mother and family lived in
Illinois[.]"
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Judge Paone concluded defendant did not establish a prima
facie showing of ineffective assistance of counsel and therefore
no evidentiary hearing was required. This appeal followed, in
which defendant presents a single point for our consideration:
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was formulated
in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.
Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of
ineffective assistance of counsel, defendant must meet the
following two-prong test: (l) counsel's performance was deficient
and he or she made errors so egregious counsel was not functioning
effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists 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, l04 S. Ct. at 2068, 80 L. Ed.
2d at 698.
7 A-1137-16T3
Here, defendant focuses his appeal on his contention that
trial counsel was ineffective for failing to conduct an adequate
pretrial investigation with respect to the victim, Campfield.
Defendant asserts, without any record support, that Campfield
could have potentially provided testimony that would have
exonerated him. Defendant further argues that an evidentiary
hearing should have been ordered so that trial counsel could have
been questioned about his alleged improper investigation.
When a defendant asserts his attorney has inadequately
investigated his matter, "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, 353 (2013) (citing State v. Cummings, 321 N.J. Super.
154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Thus,
a defendant "must do more than make bald assertions that he was
denied the effective assistance of counsel." Cummings, supra, 321
N.J. Super. at 170.
Here, defendant fails to meet this standard. He proffers no
competent evidence of what counsel would have discovered had he
interviewed Campfield, or how Campfield's testimony or the result
at trial would have differed had counsel interviewed him. In
short, defendant's claim that trial counsel conducted an
8 A-1137-16T3
inadequate investigation is merely a bald assertion devoid of any
substance.
The record also supports Judge Paone's findings on
defendant's other claims. Accordingly, we are satisfied from our
review of the record that defendant failed to make a prima facie
showing of ineffectiveness of trial counsel under the Strickland-
Fritz test. The judge correctly concluded an evidentiary hearing
was not warranted. See State v. Preciose, 129 N.J. 452, 462-63
(1992). Moreover, in view of the evidence presented, it appears
defense counsel was quite effective in securing a jury verdict of
aggravated assault as a lesser-included offense of the charged
crime of attempted murder.
Affirmed.
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