STATE OF NEW JERSEY v. RASHON JACKSON (11-05-0432, PASSAIC COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3202-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHON JACKSON,
Defendant-Appellant.
_________________________
Submitted February 8, 2022 – Decided July 22, 2022
Before Judges DeAlmeida and Smith.
On appeal from the Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
11-05-0432.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on
the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief; Ali Y. Ozbek,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant, Rashon Jackson, appeals from the December 13, 2019 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
Because we heard this matter on direct appeal, State v. Jackson, No. A-
3588-14 (App. Div. Feb. 7, 2018) (slip op. at 2-3), we incorporate its factual
narrative for brevity's sake. We recite only those facts germane to the issues
before us.
On December 17, 2010, defendant joined Anthony Velez, Schelton
Shennett, and Gerald Davis in a scheme to rob Manuel Lugo of drugs and
money. After driving together in a car to meet Lugo, defendant and Davis
exited the car and approached him. Velez also exited the car but waited,
concealing himself from Lugo. Shennett remained in the car. During the
ensuing confrontation, Lugo was fatally shot in the chest.
Velez, Shennett, and Davis 1 each accused defendant of shooting Lugo.
Velez also testified that while the four men were together after the shooting,
defendant told them "don’t nobody say nothing, if anybody says something
they know what's going to happen." After a police investigation, defendant
1
All of the co-defendants pled guilty to various offenses and agreed to
provide testimony for the State if called as witnesses.
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was apprehended in Massachusetts using an assumed name and in possession
of a stolen driver's license.
Defendant was charged with first-degree murder, N.J.S.A. 2C:11-
3(a)(1); first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a
firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); two counts of second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); third-degree
receiving stolen property, N.J.S.A. 2C:20-7; and first-degree felony murder,
N.J.S.A. 2C:11-31(3).
Velez and Davis testified at trial, however Shennett did not. The State
did not call him as a witness and when defendant called him to testify,
Shennett invoked his Fifth Amendment right against self-incrimination outside
of the presence of the jury. The trial court denied defendant's numerous
applications to compel his testimony. Defendant did not object to the standard
flight instruction the court gave to the jury, and the jury convicted defendant
on all counts except for the two second-degree weapons charges. Defendant
was sentenced to an aggregate prison term of sixty years, subject to the No
Early Release Act, N.J.S.A. 2C:43-7.2.
On direct appeal, defendant argued that the trial court erred when it: did
not compel Shennett to testify despite his invocation of the Fifth Amendment
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privilege against self-incrimination; issued an incomplete jury charge; and
imposed an excessive sentence. We rejected those arguments and affirmed his
conviction and sentence.
Defendant next filed a PCR application, making several arguments, some
of which tracked his direct appeal. He argued that trial counsel was
ineffective: in failing to object to the racial composition of the jury; that he
was "misled" by defense counsel concerning the admissibility of Shennet t's
pre-trial statements to the police; that trial counsel was ineffective in not
objecting to the flight charge; and finally, that trial counsel had a conflict of
interest.
The PCR court rejected all of the claims. Concluding that defendant
failed to make a prima facie case under Strickland, the court denied the
application without an evidentiary hearing. 2
On appeal from denial of the PCR motion, defendant argues the
following:
MR. JACKSON IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO
ADVISE HIM ADEQUATELY DURING PLEA
NEGOTIATIONS ABOUT THE ADMISSIBLITY OF
2
Strickland v. Washington, 466 U.S. 668 (1986).
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A CODEFENDANT'S STATEMENT, OBJECT TO
AN INCOMPLETE FLIGHT CHARGE, AND
ADVOCATE ADEQUATELY DUE TO A
CONFLICT OF INTEREST.
We use a de novo standard of review when a PCR court does not
conduct an evidentiary hearing. State v. Blake, 444 N.J. Super. 285, 294 (App.
Div. 2016) (citing State v Harris, 181 N.J. 391, 421 (2004)). When petitioning
for PCR, a defendant must establish he is entitled to "PCR by a preponderance
of the evidence." State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div.
2014) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).
We analyze ineffective assistance of counsel claims using the two-prong
test established by the Supreme Court in Strickland. See Preciose, 129 N.J. at
463; see also State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of the
Strickland test requires a defendant to establish counsel's performance was
deficient. Preciose, 129 N.J. at 463. "The second, and far more difficult,
prong is whether there exists 'a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.'"
Id. at 463-64 (quoting Strickland, 466 U.S. at 694).
There exists a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment. Strickland, 466 U.S. at 689. Further, because
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prejudice is not presumed, defendant must demonstrate how specific errors by
counsel undermined the reliability of the proceeding. State v. Drisco, 355 N.J.
Super 283, 289-90 (App. Div. 2002) (citing United States v. Cronic, 466 U.S.
648, 659 n.26 (1984)).
We examine defendant's first argument, that trial counsel was ineffective
because he failed to adequately advise defendant about the potential for
admissibility of Shennett's statement during plea negotiations, causing him to
reject a twenty-six-year plea offer. We do not find the argument persuasive.
"[M]erely raising a claim for PCR does not entitle one to an evidentiary
hearing." State v. L.G.-M., 462 N.J. Super. 357, 364 (App. Div. 2020).
Defendant wanted to put Shennett on the witness stand to attack his credibility
by comparing his police statement, where he did not identify defendant as the
shooter, with his plea allocution, where he did. Defendant essentially argues
that his self-serving certification about what his attorney said or didn't say to
him during plea negotiations creates the need for an evidentiary hearing.
Our review of the record leads us to conclude that defendant's trial
counsel was zealous in his representation of defendant, and counsel
demonstrated this in his repeated attempts to get Shennett's conflicting
testimony before the jury. We note that the PCR judge, who also presided
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over the trial, found counsel attempted "every which way" to get Shennett's
statement before the jury, but was unsuccessful. 3 We concluded on direct
appeal that "defendant did not establish that Shennett's valid invocation of his
Fifth Amendment privilege caused [defendant] sufficient prejudice to warrant
a reversal of his convictions." Jackson, slip op. at 6-7. We find the record
shows that counsel's actions "fell within the wide range of reasonable
professional assistance." See Strickland, 466 U.S. at 689-90. When we weigh
defendant's self-serving statements against his counsel's vigorous efforts to get
Shennett's statement or his testimony before the jury, we find defendant has
failed to show by a preponderance of the evidence that he has met the first
prong of Strickland. Preciose, 129 N.J. at 463.
For completion, we note defendant falls far short as to the second prong
of Strickland. We found on direct appeal that defendant cannot show the result
would have been different but for the error alleged. Id. at 463-64. Prejudice is
not presumed. Fritz, 105 N.J. at 52. Velez and Davis, the other co-defendants,
testified at trial and identified defendant as the shooter. They were extensively
3
The record shows that the motion argument on the admissibility of the
statement took place mid-trial, near the end of the State's case. After denial of
defendant's motion, the trial resumed with cross-examination of the State's last
witness. The record does not show whether defendant attempted to re-open
plea negotiations prior to the case going to the jury.
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cross-examined on their police statements. During that cross-examination,
trial counsel pursued contradictions between their statements, their plea
allocutions, and their trial testimony at great length. We find no prejudice
here.
Defendant next argues that trial counsel "failed to object to an
incomplete flight charge." We glean from this statement that defendant means
his trial counsel failed to seek addition of defendant's explanations for leaving
the scene to the standard instruction. The trial court gave the standard flight4
jury instruction with no amendment offered by trial counsel. However, as the
PCR judge noted, trial counsel argued defendant's explanations for leaving the
scene during summation. Because the jury was exposed to defendant's
position during closing argument, we find counsel's actions "fell within the
wide range of reasonable professional assistance," Strickland, 466 U.S. at 689-
90, and we conclude defendant has failed to show by a preponderance of the
evidence that counsel's performance was deficient on the flight charge.
Preciose, 129 N.J. at 463.
Finally, defendant argues that counsel was ineffective because he had a
conflict of interest. Defendant was informed before trial that his counsel and
4
Model Jury Charges (Criminal), "Flight" (rev. May 10, 2010).
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the prosecutor were cousins. He consented to continuing the representation
nonetheless. His certification alleges no actions by counsel which form a
factual basis for this allegation, but rather a "feeling." 5 We find this claim has
no merit on this record.
In sum, defendant has failed to draw the required nexus between
"specific errors of counsel" he has alleged and any harm to the reliability of his
trial. Drisco, 355 N.J. Super. at 290 (citing Cronic, 466 U.S. at 659 n.26). No
evidentiary hearing is merited.
To the extent that we have not addressed any remaining arguments by
defendant, it is because they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
5
Defendant certified in his PCR application that as the trial progressed, he
"felt that [his] lawyer was not acting in his best interests . . . ."
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