STATE OF NEW JERSEY VS. CHARLES JACKSON (08-11-2612, MONMOUTH COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0062-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES JACKSON, a/k/a
RAHEEM WOODS,
Defendant-Appellant.
_____________________________
Submitted May 8, 2018 – Decided July 6, 2018
Before Judges Fisher and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
08-11-2612.
Joseph E. Krakora, Public Defender, attorney
for appellant (William P. Welaj, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Charles Jackson was indicted for: second-degree
sexual assault, N.J.S.A. 2C:14-2(c)(1), (c)(4) (counts one and
two); second-degree luring or enticing a child, N.J.S.A. 2C:13-6
(count three); and third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a) (count four). Defendant was found guilty
after a jury trial on counts three and four, and of fourth-degree
criminal sexual contact, N.J.S.A. 2C:14-3(b), as lesser-included
offenses of counts one and two. He received an aggregate state
prison sentence of fifteen years with seven and one-half years of
parole ineligibility. We affirmed his conviction and sentence,
State v. Jackson, A-5614-11 (App. Div. June 6, 2014);1 our Supreme
Court denied defendant's petition for certification, State v.
Jackson, 220 N.J. 99 (2014).
Defendant appeals from the denial of his post-conviction
relief (PCR) petition without an evidentiary hearing, arguing:
POINT I
THE POST-CONVICTION RELIEF 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 AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
1
We need not repeat the facts that are set forth in our prior
opinion.
2 A-0062-17T3
HEARINGS AND PETITIONS FOR POST-
CONVICTION RELIEF.
B. TRIAL COUNSEL DID NOT ADEQUATELY
REPRESENT THE DEFENDANT ARISING OUT OF
HER FAILURE TO THOROUGHLY DISCUSS WITH
HER CLIENT ALL RELEVANT RAMIFICATIONS
ASSOCIATED WITH THE DECISION WHETHER OR
NOT TO TESTIFY, FURTHER ADVISING THE
DEFENDANT NOT TO TESTIFY DESPITE HIS
DESIRE TO DO SO, AS A RESULT OF WHICH HE
DID NOT TESTIFY IN HIS OWN DEFENSE.
C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM TRIAL
COUNSEL AS A RESULT OF TRIAL COUNSEL'S
FAILURE TO MAKE A MOTION TO DISMISS THE
INDICTMENT BASED UPON PROSECUTORIAL
MISCONDUCT IN THE GRAND JURY.
POINT II
THE POST-CONVICTION RELIEF COURT ERRED IN
DENYING THE DEFENDANT'S PETITION, IN PART, ON
PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.
Unpersuaded by any argument, we affirm.
Absent an evidentiary hearing, our review of the factual
inferences drawn by the PCR court from the record is de novo.
State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016).
Likewise, we review de novo the PCR court's legal conclusions.
Ibid.Defendant claims only that his trial counsel failed to fully
discuss the consequences of testifying at trial and, although he
wanted to testify, trial counsel advised against it; he does not
claim he was not informed of his right to testify. It is incumbent
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on trial counsel "to advise defendant on whether to testify and
to explain the tactical advantages or disadvantages" of that
decision. State v. Savage, 120 N.J. 594, 630 (1990) (quoting
State v. Bogus, 223 N.J. Super. 409, 423 (App. Div. 1989)). "[A]
defendant's complete understanding of his right to testify can be
confirmed only when we have assurances that he has been advised
of the particular consequences in the trial at hand." State v.
Bey, 161 N.J. 233, 311 (1999). We have such assurances on this
case, gleaned from the record.
After the trial court reviewed the model charge, "DEFENDANT’S
ELECTION NOT TO TESTIFY,"2 with defendant, and defendant told the
judge he wanted the instruction presented to the jury, his counsel
asked the judge to conduct a Sands3 hearing, explaining that "one
of the reasons he's electing not to testify is because he has a
criminal record" and that when she and defendant were discussing
whether his prior convictions would be admissible to impeach his
credibility, "the fact that he has prior convictions weighed
heavily in our decision" not to testify. She continued, "But
that's only my opinion. It's not a [c]ourt's finding whether it's
admissible or not." Counsel wanted to ascertain the trial court's
2
Model Jury Charges (Criminal), "Defendant's Election Not to
Testify" (rev. May 4, 2009).
3
State v. Sands, 76 N.J. 127 (1978).
4 A-0062-17T3
opinion on the admissibility of the prior convictions and their
possible sanitization.
A few things are clear from the record. The Sands hearing
confirmed that trial counsel advised defendant regarding the use
of his prior convictions if he testified. Counsel gave advice,
but defendant elected not to testify. Although the trial judge
did not engage in the thorough exploration with defendant of the
possible consequences of his choice not to testify as did the
judge in State v. Ball, 381 N.J. Super. 545, 555-57 (App. Div.
2005), defendant acknowledged in colloquy that he wanted the model
jury charge. He admitted in his PCR-supporting certification that
his counsel "advised against . . . taking the stand" but it was
he who "followed" that advice; the decision not to testify was not
unilaterally made by counsel. And it was made by defendant knowing
the judge would likely decide — as he ultimately did — to admit
his unsanitized prior convictions for first-degree robbery,
second-degree possession of a weapon for an unlawful purpose,
second-degree possession of CDS with intent to distribute within
500 feet of public property, third-degree possession of CDS with
intent to distribute within 1000 feet of school property, a first-
degree promoting prison contraband conviction in New York and
third-degree possession of CDS. That decision did not change
after defendant heard the judge's Sands-hearing ruling. In his
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certification defendant admitted, "I knew [not taking the stand]
was a mistake, but I followed my trial attorney's advice to my
detriment." We see no evidence to support defendant's contention
his counsel failed to advise him of the consequences of exercising
or waiving his right to testify, necessary to satisfy his burden
to show "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Fritz, 105 N.J. 42, 58 (1987).
Further, we do not see that defendant established he suffered
prejudice – which "is not presumed, and must be proven," State v.
Fisher, 156 N.J. 494, 500 (1998) – due to counsel's deficient
performance, Strickland, 466 U.S. at 687, 691-92. Defendant must
show by a "reasonable probability" that the deficient performance
affected the outcome. Fritz, 105 N.J. at 58.
Defendant – other than to say that it was necessary that he
testify about his version of events lest the jury be left only
with the uncontroverted victim's testimony — did not provide an
affidavit or certification setting forth his version. R. 3:22-
10(c). "In order for a claim of ineffective assistance of counsel
to entitle a PCR petitioner to an evidentiary hearing, 'bald
assertions' are not enough — rather, the defendant 'must allege
facts sufficient to demonstrate counsel's alleged substandard
6 A-0062-17T3
performance.'" State v. Jones, 219 N.J. 298, 312 (2014) (quoting
State v. Porter, 216 N.J. 343, 355 (2013)). Based on this record,
we do not determine, especially in view of his many prior
convictions, that defendant has shown there is a reasonable
probability his testimony would have affected the outcome of his
trial.
We also agree with the PCR judge that the record regarding
counsel's advice was sufficiently developed before the trial court
and is thus barred. R. 3:22-4(a). The issue could have been
raised on direct appeal and we see no exception under Rule 3:22-
4(a)(1), (2) or (3) that warrants relief.4
Defendant's argument that trial counsel was ineffective
because she failed to file a motion to dismiss the indictment
based on prosecutorial misconduct is based on defendant's
contention that "the grand jury was misled when it was informed
there had been 'no results back yet' as to whether any semen had
been found" does not accurately reflect the State's presentation,
the pertinent part of which was:
A JUROR: Did they find any semen?
4
The three exceptions to the bar are that: the issue could not
reasonably have been raised in any prior proceeding; enforcement
of the bar would result in fundamental injustice; or denial of
relief would be contrary to a new state or federal constitutional
law.
7 A-0062-17T3
[ASSISTANT PROSECUTOR]: None had been
recovered?
[DETECTIVE]: There hasn't been a conclusive
result back from the lab yet. They were being
sent to the lab but there's no results back
yet.
We determine this argument lacks sufficient merit to warrant
discussion. R. 2:11-3(e)(2). We add only the following brief
comments.
Contrary to defendant's argument, the State did not withhold
exculpatory evidence from the grand jury. As defendant concedes
in his merits brief, the report available to the State on the date
of the grand jury presentment – showing that no semen was found
on the submitted items — was only preliminary. As the PCR judge
found, it was not until eighteen days after presentment that the
final laboratory report was completed, showing the presence of the
victim's DNA – and no semen. At the time of presentment, as the
detective testified, no conclusive results were available. The
grand jurors were not told, nor could or did they consider any
evidence in deliberating, that semen had been found. Moreover,
as the PCR judge observed, the victim alleged defendant committed
penile, oral and digital vaginal penetration. The absence of
semen did not "squarely refute[] an element" of the crimes charged;
the State, therefore, was not obligated to present the preliminary
report. State v. Hogan, 144 N.J. 216, 237 (1996) (emphasis
8 A-0062-17T3
omitted). The oral and digital penetration was not refuted by the
absence of semen. And again, we do not see that defendant was
prejudiced. The jury did not find him guilty of the penetration
charges.
Like the claim related to counsel's advice regarding his
testimony, defendant's claim that counsel should have filed a
motion to dismiss the indictment is barred under Rule 3:22-4(a).
The grand jury presentation fully developed this issue which should
have been raised on appeal; we determine no exception to the bar
applies.
We also determine defendant's argument that the PCR judge
abused his discretion by denying him an evidentiary hearing to be
without sufficient merit to warrant discussion here. R. 2:11-
3(e)(2). A defendant must establish a prima facie case in support
of a PCR application, R. 3:22-10(b), by demonstrating "the
reasonable likelihood of succeeding" under the Strickland test
before an evidentiary hearing is ordered, Preciose, 129 N.J. at
462-63. Defendant failed to do so and an evidentiary hearing was
not warranted.
Affirmed.
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