STATE OF NEW JERSEY VS. E-SHAUN JONES (08-10-1785, MIDDLESEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0066-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
E-SHAUN JONES, f/k/a
ALLAN L. EAFORD, a/k/a
ALAN EAFORD, LESHAUN
A. EAFORD, LESHAUN EFORD,
LASHAWN S. EAFORD, and
BILL EAFORD,
Defendant-Appellant.
_____________________________
Submitted November 29, 2021 – Decided December 8, 2021
Before Judges Fasciale and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 08-10-
1785.
E-Shaun Jones, appellant pro se.
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from the denial of his second petition for post-
conviction relief (PCR). Defendant has not demonstrated a prima facie case of
ineffectiveness and has failed to show good cause for the appointment of
counsel. We affirm.
I.
A jury convicted defendant and his co-defendant Shakeil Price (Price) 1 of
first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1)-(2); second-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39 -4(a);
and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b),
N.J.S.A. 2C:58-4. He was sentenced to forty-five years' imprisonment, with an
eighty-five percent parole ineligibility on the murder conviction concurrent to
two concurrent ten-year terms of imprisonment with a five-year period of parole
ineligibility on the weapons convictions. We affirmed the convictions. See
State v. Price, No. A-2937-10 (App. Div. Mar. 12, 2014). The Supreme Court
denied defendant's petition for certification. State v. Eaford, 221 N.J. 219(2015).
1
Price is not involved in this appeal.
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Defendant filed his first petition for PCR, which the PCR judge denied
without an evidentiary hearing. Defendant raised several points, including his
trial counsel's alleged failure to disclose a favorable plea bargain to him. This
court affirmed the denial of the PCR, State v. Eaford, No. A-4061-15 (App. Div.
Dec. 15, 2017) (slip op. at 14), and the Supreme Court denied defendant's
subsequent petition for certification, State v. Eaford, 235 N.J. 400 (2018).
This court reversed the denial of Price's petition for PCR. State v. Price,
No. A-1527-17T4 (App. Div. Mar. 4, 2019) (Price II) (slip op. at 11). Price had
argued that his trial and appellate counsel were ineffective for failing to raise
the trial judge's purported error in not conducting a pretrial conference. Id. at 4.
Price certified that his trial counsel failed to advise him that the State had
extended a final plea offer of a twenty-year prison term subject to an eighty-five
percent parole ineligibility. Ibid. We concluded that an evidentiary hearing
should have been conducted as to Price's claim that his trial counsel did not relay
the State's plea offer to him and whether he was adequately counseled with
respect to the plea offer. Id. at 11.
In his second PCR petition, defendant argued that because of his trial
counsel's failure to insist on a pretrial conference, he, like Price, had also not
been informed or counseled on the State's final plea offer. Defendant alleged
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that he was not aware of the alleged twenty-year plea offer to Price or Price's
willingness to accept that offer. The judge on defendant's second PCR petition
entered an order on April 22, 2020, denying the petition, rendered a written
decision, and concluded that the petition was procedurally barred. Although
finding the petition barred, the PCR judge addressed the merits of the petition
and found that defendant failed to demonstrate a reasonable probability that the
relief sought would be granted when viewed in light of the evidence as a whole,
and defendant did not establish good cause for assignment of a Public Defender.
In this appeal, defendant asserts the following arguments in his pro se
brief:
POINT I
THE PCR [JUDGE] ERRED IN CONCLUDING
[DEFENDANT] HAD NOT EVEN MADE A
SUFFICIENT SHOWING TO HAVE A PUBLIC
DEFENDER APPOINTED IN A CASE WHERE THE
APPELLATE DIVISION HAD ALREADY DECIDED
HIS MORE CULPABLE CO-DEFENDANT MUST
RECEIVE AN EVIDENTIARY HEARING
CONCERNING THE SAME ISSUES.
POINT II
THE PCR [JUDGE] ERRED IN HOLDING THAT
R[ULE] 3:22-5 BARRED [DEFENDANT'S] SECOND
PETITION BECAUSE THE CLAIMS RAISED IN
[DEFENDANT'S] LATEST PETITION WERE NOT
PREVIOUSLY ADJUDICATED.
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POINT III
THE PCR [JUDGE] ERRED IN CONCLUDING
THERE WAS INSUFFICIENT EVIDENCE TO
ALLOW [DEFENDANT] TO PROCEED WITH HIS
PETITION.
We review de novo a decision to deny a petition for PCR without an
evidentiary hearing. State v. Harris, 181 N.J. 391, 419 (2004); see also State v.
Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (applying a de novo standard
of review to the denial of a second petition for PCR).
II.
Defendant contends the judge erred in holding his petition was
procedurally barred because his claim that his trial counsel failed to insist on a
pretrial conference and the "prejudice created by the resulting failure to
communicate the State's final plea offer" was not previously adjudicated. We
conclude, as did the judge, that defendant's petition is procedurally barred under
Rule 3:22-5 because defendant raised this exact issue in his first petition, and
that denial was affirmed on appeal.
Under Rule 3:22-5, "[a] prior adjudication upon the merits of any ground
for relief is conclusive whether made in the proceedings resulting in the
conviction or in any post-conviction proceeding . . . or in any appeal taken from
such proceedings." The Court has noted that "PCR will be precluded 'only if the
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issue is identical or substantially equivalent' to the issue already adjudicated on
the merits." State v. Afanador, 151 N.J. 41, 51 (1997) (quoting State v.
McQuaid, 147 N.J. 464, 484 (1997)).
In his first PCR, defendant argued that he "was denied due process
because [there] was no [p]re-[trial] [c]onference held." The first PCR judge
addressed defendant's claim that his trial counsel failed to discuss a plea relative
to the negative consequences of a trial in a written decision and found that trial
counsel's representation was reasonable. This court affirmed that decision and
concluded the issue to be "without sufficient merit to warrant discussion."
Eaford, slip op. at 14. On this record, we are satisfied that the judge properly
determined defendant's arguments were procedurally barred. Notwithstanding
the second PCR judge's finding that defendant was precluded from raising this
issue, the judge still addressed the merits of defendant's second petition—we
will too.
III.
Defendant argues that his trial counsel rendered ineffective assistance of
counsel because there was no pretrial conference and because counsel did not
advise him of the State's final plea offer. Relying primarily on this court's
decision reversing the denial of his co-defendant Price's PCR petition, defendant
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argues he established "at least a prima facie case entitling him to an evidentiary
hearing." Defendant argues that he made a showing of good cause to be entitled
to the assignment of a Public Defender because his second petition raised
substantial issues of law and fact.
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Court adopted in State v.
Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong, a
defendant must establish that his counsel "made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." 466 U.S. at 687. The defendant must rebut the "strong
presumption that counsel's conduct [fell] within the wide range of reasonable
professional assistance." Id. at 689. Thus, we consider whether counsel's
performance fell below an objective standard of reasonableness. Id. at 688.
To satisfy the second Strickland/Fritz prong, a defendant must show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687. A defendant must establish "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
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sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's
performance has been so deficient as to create a reasonable probability that these
deficiencies materially contributed to defendant's conviction, the constitutional
right will have been violated." Fritz, 105 N.J. at 58. In the context of plea
offers, "a defendant must show the outcome of the plea process would have been
different with competent advice." Lafler v. Cooper, 566 U.S. 156, 163 (2012).
Rule 3:22-6(b) prescribes that a defendant is entitled to the assignment of
a Public Defender for a second petition for PCR "only upon application therefor
and [a] showing of good cause." "[G]ood cause exists only when the [judge]
finds that a substantial issue of fact or law requires assignment of counsel and
when a second or subsequent petition alleges on its face a basis to preclude
dismissal under R[ule] 3:22-4." R. 3:22-6(b). The judge will dismiss a second
petition for PCR unless it is timely under Rule 3:22-12(a)(2) and meets one of
the three criteria under Rule 3:22-4(b)(2). The criteria are
(A) that the petition relies on a new rule of
constitutional law, made retroactive to defendant's
petition by the United States Supreme Court or the
Supreme Court of New Jersey, that was unavailable
during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could
not have been discovered earlier through the exercise
of reasonable diligence, and the facts underlying the
ground for relief, if proven and viewed in light of the
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evidence as a whole, would raise a reasonable
probability that the relief sought would be granted; or
(C) that the petition alleges a prima facie case of
ineffective assistance of counsel that represented the
defendant on the first or subsequent application for
[PCR].
[R. 3:22-4(b)(2).]
To support defendant's PCR claim, he points to this court's decision
reversing the denial of Price's PCR petition. The sole evidence presented on
Price's petition for PCR was his certification that his trial counsel failed to
advise him prior to trial of the State's final plea offer of a twenty-year prison
term. Price further certified that had he been advised of the plea offer, he would
have taken it. The State denied ever making the twenty-year offer to Price, but
it did not supply an affidavit or certification from the assistant prosecutor who
handled Price's prosecution. Price's appellate counsel also failed to locate or
obtain an affidavit or certification from Price's trial counsel, who Price alleged
did not advise him of the offer or insist on a pretrial conference.
On Price's appeal, we acknowledged that "the record contains no
indication that the trial [judge] conducted a pretrial conference" or that the
requirements of Rule 3:9-1(f) were met for a transcript of a pretrial conference
or a pretrial memorandum. Price II, slip op. at 10. We held that an evidentiary
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hearing was necessary to establish whether trial counsel failed to communicate
a plea offer to Price and whether trial counsel adequately counseled defendant
on that offer. Id. at 10-11.
We reject defendant's argument that our decision to reverse the denial of
Price's petition for PCR is sufficient to warrant reversal on this appeal. We
conclude that defendant failed to establish any of the criteria under Rule 3:22-
4(b)(2) to preclude dismissal of his petition. Defendant failed to show, when
viewing the evidence as a whole, there was a reasonable probability that the PCR
would be granted, and he failed to establish a prima facie case of either
Strickland/Fritz prong.
This court's acknowledgment that there was no pretrial conference in
Price's case is insufficient evidence to prove that defendant's trial counsel's
performance here fell below the objective standard of reasonableness under
Strickland. 466 U.S. at 688. Defendant has not demonstrated how Price's
certification that he received a twenty-year plea deal established that defendant's
trial counsel failed to communicate a plea deal to defendant. Defendant did not
submit a certification claiming the existence of this final plea deal, but instead
simply infers that if Price, who acted more culpably than him by firing the gun,
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received a twenty-year plea deal, then the State must have offered an even more
favorable final plea deal to defendant.
Furthermore, on his first petition, the State indicated that defendant
rejected its plea offer of thirty-years imprisonment, and the State presented
evidence that defendant was satisfied with his trial counsel's advice. As the
second PCR judge correctly found, there is not enough evidence "to confirm or
deny" that the alleged plea deals existed and that if so, defendant or Price would
have accepted them. Nor is there sufficient evidence supporting defendant's
bald assertion that there is a reasonable probability of success on the merits or
to establish a prima facie case of ineffective assistance of counsel. And
defendant has not demonstrated good cause that there is a substantial issue of
fact or law entitling him to assignment of a Public Defender.
To the extent we have not addressed defendant's arguments, we conclude
they are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
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