STATE OF NEW JERSEY VS. JASHAWN HALLOWAY (18-04-0319, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-0116-19T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASHAWN HALLOWAY,
Defendant-Appellant.
Submitted November 18, 2020 – Decided February 1, 2021
Before Judges Alvarez and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Accusation No. 18-04-0319.
Joseph E. Krakora, Public Defender, attorney for
appellant (John V. Molitor, Designated Counsel, on the
briefs).
Robert J. Carrol, Acting Morris County Prosecutor,
attorney for respondent (Tiffany M. Russo, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Jashawn Halloway appeals a June 27, 2019 Law Division order
denying his post-conviction relief (PCR) petition based on ineffective assistance
of counsel. We affirm.
Defendant was charged in April 2017 with multiple counts of drug
distribution; he ultimately entered a guilty plea to an accusation charging him
with second-degree conspiracy to possess a controlled dangerous substance with
intent to distribute, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:35-5(b)(2). The State
initially offered defendant a plea offer of six years imprisonment subject to thirty
months of parole ineligibility; he eventually accepted a reduced offer of six
years in state prison. While the proceedings were pending in Morris County,
defendant was admitted into Drug Court in Passaic County for an unrelated
offense. State v. Meyer, 192 N.J. 421, 423 (2007) ("The New Jersey Judiciary
created Drug Courts within the criminal part of the Superior Court, Law Division
to address the unique problems and needs posed by non-violent, drug-dependent
offenders.").
In the fall of 2017, defendant's attorney filed a notice of motion seeking
his admission into Drug Court in Morris County. The team found him clinically
eligible, but legally ineligible as a danger to the community. After the Drug
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Court's initial rejection, defendant sought reconsideration as the judge had also
denied his application. That motion was denied as well.
Defendant was sentenced on June 1, 2018, after the judge entertained
defendant's lengthy oral argument in support of his application for admission
into Drug Court. The State objected, not only because defendant was a persistent
offender eligible for extended-term sentencing, but because his use, if any, was
most likely recreational while the drugs he allegedly sold were not. The
prosecutor's position was that defendant's statements regarding his drug
dependency were likely exaggerated, and his prior criminal history and the
pending charges established he was a danger to the community if sentenced to
Drug Court. The judge then proceeded to sentence defendant to the agreed-upon
six-year term. At no time did defendant state that his attorney had advised him
that, regardless of the denial of his Drug Court application and of his two
motions, he would nonetheless be sentenced to Drug Court.
In his PCR certification, defendant asserted his attorney had told him that
he would be admitted to Drug Court if he entered a guilty plea. He also claimed
his attorney had failed to review discovery with him and develop defenses to the
charges. On the record, at the time the plea was accepted, defendant expressed
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satisfaction not only with his attorney's services but with his familiarity with the
State's proofs as well.
When defendant's plea was accepted by the court, the judge told defendant
that only he, the judge, could grant defendant's application. He made clear to
him that the plea agreement was to six years. At no time did defendant volunteer
that his attorney had told him otherwise.
Now on appeal, defendant raises the following point:
POINT I
THIS COURT SHOULD REVERSE THE TRIAL
COURT'S DECISION TO DENY THE
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF AND REMAND THE
MATTER FOR AN EVIDENTIARY HEARING
BECAUSE THE RECORD SUPPORTS THE
DEFENDANT'S CONTENTION HE BELIEVED THE
TRIAL COURT WOULD GRANT HIS
APPLICATION FOR DRUG COURT.
We review de novo the court's decision not to hold an evidentiary hearing.
State v. Harris, 181 N.J. 391, 421 (2004). "A petition for post-conviction relief
is cognizable if based upon . . . [s]ubstantial denial in the conviction proceedings
of defendant's rights under the Constitution of the United States or the
Constitution or laws of the State of New Jersey." R. 3:22-2. Such rights include
the Sixth Amendment right to counsel, which the United States Supreme Court
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has interpreted as the "right to the effective assistance of counsel." Strickland
v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397
U.S. 759, 771 n.14 (1970)). Ineffective assistance of counsel "claims are
particularly suited for post-conviction review because they often cannot
reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460
(1992).
The standard for determining ineffective assistance of counsel has two
prongs: "First, the defendant must show that counsel's performance was
deficient . . . Second, the 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."
Strickland, 466 U.S. at 687. This test was adopted by the New Jersey Supreme
Court in State v. Fritz, 105 N.J. 42, 57-58 (1987).
To set aside a guilty plea on the basis of ineffective assistance of counsel,
the courts use a modified version of the Strickland test that requires a defendant
to "show that (i) counsel's assistance was not within the range of competence
demanded of attorneys in criminal cases, and (ii) that there is a reasonable
probability that, but for counsel's errors, [the defendant] would not have pled
guilty and would have insisted on going to trial." State v. DiFrisco, 137 N.J.
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434, 456-57 (1994) (alterations in original) (internal quotations and citations
omitted).
A defendant must make more than bald assertions that plea counsel was
ineffective in order to establish a prima facie case. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999). Here, we have nothing more than defendant's
unsupported assertions. In fact, his attorney made vigorous and repeated efforts
to gain his client admission into the Morris County Drug Court program.
Furthermore, as the judge who denied PCR said, the trial judge found defendant
to be legally ineligible.
No genuine issue of fact has been created by defendant's contradiction of
the record. See State v. Blake, 444 N.J. Super. 285, 299 (App. Div. 2016). In
this case, not only was defendant silent about his attorney's supposed off-the-
record reassurances regarding Drug Court when he pled guilty, he expressed no
dissatisfaction with the level of familiarity he had with the proofs against him.
His attorney filed an application for Drug Court after he was rejected by the
Morris County team, and then filed a motion for reconsideration. Defendant
therefore knew he had negotiated a plea to state prison he was likely to receive.
The record calls into question the credibility of defendant's certification.
Nothing in the record meets the first Strickland prong or the second. Defendant
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had a criminal history which included prior convictions and faced second-degree
charges. Under the circumstances, a term of incarceration without a term of
parole ineligibility was a favorable resolution of the charges against him. Thus,
he has not demonstrated he would not have entered a guilty plea but for counsel's
misrepresentations regarding Drug Court. Defendant's claims lack merit.
Affirmed.
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