STATE OF NEW JERSEY VS. DONALD B. LINDSEY (10-09-2451, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0531-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONALD B. LINDSEY,
Defendant-Appellant.
________________________
Submitted October 18, 2019 – Decided January 6, 2020
Before Judges Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 10-09-2451.
Joseph E. Krakora, Public Defender, attorney for
appellant (Howard E. Drucks, Designated Counsel, on
the brief).
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Kevin J. Hein, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant, Donald Lindsey, appeals from the denial of his petition for
post-conviction relief (PCR) without an evidentiary hearing. In August 2008,
defendant and codefendant, Martin Pierce, engaged in a shootout that resulted
in the death of a four-year-old bystander, B.T. The State presented proof at trial
that defendant fired the bullet that struck and killed the child. The State argued
that defendant’s intent to kill Pierce transferred to become an intent to kill B.T.,
thereby making defendant culpable for the crime of murder. The jury found
defendant guilty of the attempted murder of Pierce but acquitted defendant of
the purposeful murder of B.T., finding him guilty instead of the lesser offense
of passion/provocation manslaughter pursuant to N.J.S.A. 2C:11-4(b)(2). We
affirmed defendant's convictions on appeal, rejecting his contentions that the
jury was improperly instructed and returned inconsistent verdicts. Defendant is
presently serving an aggregate term of twenty-eight years of imprisonment that
includes a combined period of parole ineligibility of twenty-four years, six
months.
Defendant claims in his PCR petition that his attorney rendered ineffective
assistance of counsel both before and during trial. Defendant specifically
contends that his counsel provided constitutionally deficient assistance by
advising him to reject a plea offer the State tendered before trial that would have
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capped his sentence at twenty-five years. Defendant also contends that defense
counsel forced him to testify and then allowed the jury to see him in shackles
while on the witness stand. He further asserts that counsel failed to clarify for
the jury, either by requesting an instruction or through argument in summation,
how the transferred-intent principle applies to passion/provocation
manslaughter under N.J.S.A. 2C:11-4(b)(2).
In a detailed and comprehensive forty-three-page opinion, the PCR court
rejected all of defendant's contentions, concluding that defendant failed to
establish a prima facie case of ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668 (1984). We have reviewed the record on appeal in
light of the applicable legal standards and conclude that with one exception,
defendant’s contentions were properly rejected by the PCR court without the
need for an evidentiary hearing. Defendant’s first contention, however, warrants
an evidentiary hearing to determine the circumstances surrounding defense
counsel’s advice that defendant should reject the State’s plea offer. We
therefore remand for an evidentiary hearing limited solely to the circumstances
pertaining to the plea offer and defendant's decision to reject that offer upon the
advice of counsel. In all other respects, we affirm the denial of PCR
substantially for the reasons set forth in the PCR court’s written opinion.
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I.
A.
On September 3, 2010, a Camden County Grand Jury returned a
superseding indictment charging defendant with the murder of four-year-old
B.T., the attempted murder of codefendant Martin Pierce, possession of a
weapon for an unlawful purpose, unlawful possession of a weapon, and unlawful
possession of an assault firearm.
Defendant stood trial before a jury that acquitted him of the murder of
B.T. but found him guilty of the lesser offense of passion/provocation
manslaughter pursuant to N.J.S.A. 2C:11-4(b)(2), a second-degree crime. The
jury convicted defendant of the attempted murder of Pierce, a first-degree crime,
and all remaining counts in the indictment.
The trial judge initially sentenced defendant to an aggregate term of thirty-
three years imprisonment with an approximate twenty-nine year period of parole
ineligibility imposed under the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2., and the Graves Act, N.J.S.A. 2C:39-4 to -5. The trial court ordered the
sentences imposed on the manslaughter, attempted murder, and assault firearm
convictions to be served consecutively. The judge merged the remaining
firearms counts with the assault firearm conviction.
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We affirmed defendant's convictions but remanded for resentencing,
instructing the trial court to provide a statement of reasons for requiring the
merged sentence imposed on the firearms convictions to be served consecutively
to the two NERA convictions. The New Jersey Supreme Court denied
defendant's petition for certification. State v. Lindsey, 223 N.J. 558 (2015).
The trial judge resentenced defendant to an aggregate term of twenty-eight
years imprisonment with an approximate twenty-four and one-half year period
of parole ineligibility. In accordance with the requirements of NERA, the
consecutive sentences imposed on the passion/provocation manslaughter and
attempted murder convictions each included a term of parole supervision in
addition to the minimum period of parole ineligibility fixed at 85% of the term
of imprisonment. N.J.S.A. 2C:43-7.2(c). As required by NERA, the period of
parole supervision was five years for the first-degree attempted murder
conviction and three years for the second-degree manslaughter conviction. Ibid.
The only change to defendant's original sentence was a reduction in the sentence
for unlawful possession of an assault firearm, which was reduced from ten years
to a five-year term of imprisonment with a five-year period of parole
ineligibility.
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B.
The factual circumstances leading up to the gunfight between defendant
and codefendant Pierce are detailed in our opinion affirming defendant’s
convictions on direct appeal, State v. Lindsey, No. A-6303-11 (App. Div. Aug.
20, 2015) (slip op. at 1–4) and need not be repeated at length here. The State
over the course of eight days of trial testimony presented multiple witnesses who
testified as to the personal animosity and prior confrontations between defendant
and Pierce leading up to the fateful gunfight that took B.T.’s life. For purposes
of this appeal, it is sufficient to recount that on August 4, 2008, defendant rode
his bicycle to his girlfriend's house. Upon arriving at her house, defendant saw
Pierce and three other men walking on the street. Suspecting that Pierce was
carrying a weapon in his backpack, defendant rode his bicycle to a nearby field
to retrieve his firearm, which he previously had hidden there. Now armed,
defendant returned to the location where he had seen Pierce.
Defendant confronted Pierce and the three other men. Children were in
the area standing near Pierce. Before the adult bystanders could evacuate the
children from the scene, defendant and Pierce exchanged gunfire. Defendant
saw B.T.'s body lying in the street, but did not stop to render aid or call 9 -1-1.
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Instead defendant fled. He later had a friend stash the Tec-9 firearm he used in
the gun battle.
II.
Defendant raises the following contentions on this appeal:
POINT I
THE PCR COURT SHOULD HAVE HELD THAT
DEFENDANT WAS ENTITLED TO RELIEF FOR
VIOLATION OF HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL UNDER THE
STANDARDS GOVERNING PETITIONS FOR
POST-CONVICTION RELIEF.
A. DEFENSE COUNSEL FAILED TO
ADEQUATELY ADVISE DEFENDANT
OF THE STRENGTH OF THE STATE'S
CASE.
B. DEFENSE COUNSEL ERRED IN
ADVISING DEFENDANT TO REJECT A
PLEA OFFER AND PROCEED TO
TRIAL.
C. DEFENSE COUNSEL ERRED IN
FAILING TO EXPLAIN TO
DEFENDANT HIS MAXIMUM
SENTENCE EXPOSURE.
D. DEFENSE COUNSEL ERRED IN
FORCING DEFENDANT TO TESTIFY.
E. DEFENSE COUNSEL ERRED IN
FAILING TO NOTE AND OBJECT TO
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DEFENDANT'S APPEARANCE
BEFORE THE JURY IN SHACKLES.
F. DEFENSE COUNSEL ERRED IN
FAILING TO REQUEST NECESSARY
AND CLARIFYING INSTRUCTIONS TO
THE JURY REGARDING
TRANSFERRED INTENT AND
PASSION/PROVOCATION.
G. DEFENSE COUNSEL ERRED IN
FAILING TO COMMENT IN HER
SUMMATION ON THE CRITICAL
RELATIONSHIP BETWEEN
TRANSFERRED INTENT AND
PASSION/PROVOCATION.
POINT II
THE COURT ERRED IN REFUSING TO GRANT
DEFENDANT AN EVIDENTIARY HEARING
REGARDING DEFENDANT'S CLAIMS OF
INEFFECTIVE ASSISTANCE OF COUNSEL.
III.
Post-conviction relief serves the same function as a federal writ of habeas
corpus. State v. Preciose, 129 N.J. 451, 459 (1992). When petitioning for PCR,
a defendant must "establish, by a preponderance of the credible evidence, that
he [or she] is entitled to the requested relief." State v. Mitchell, 126 N.J. 565,
579 (1992) (quoting State v. Marshall, 244 N.J. Super. 60, 69 (Law Div. 1990)).
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Defendant's PCR petition raises claims of constitutionally deficient
assistance of counsel. Both the Sixth Amendment of the United States
Constitution and Article 1, paragraph 10 of the State Constitution guarantee the
right to effective assistance of counsel at all stages of criminal proceedings.
Strickland, 466 U.S. at 686 (citing McMann v. Richardson, 397 U.S. 759, 771
n.14 (1970)); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a violation of
the right to the effective assistance of counsel, a defendant must meet the two-
part test articulated in Strickland. Fritz, 105 N.J. at 58. "First, the defendant
must show that counsel's performance was deficient. . . . Second, the defendant
must show that the deficient performance prejudiced the defense." Strickland,
466 U.S. at 687.
To meet the first prong of the Strickland test, a defendant must show "that
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed by the Sixth Amendment." Ibid. Reviewing courts indulge in a
"strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at 689. The fact that a trial strategy
fails to obtain for a defendant the optimal outcome is insufficient to show that
counsel was ineffective. State v. DiFrisco, 174 N.J. 195, 220 (2002) (citing
State v. Bey, 161 N.J. 233, 251 (1999)).
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The second prong of the Strickland test requires the defendant to 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. Put differently,
counsel's errors must create a "reasonable probability" that the outcome of the
proceedings would have been different than if counsel had not made the errors.
Id. at 694. This assessment is necessarily fact-specific to the context in which
the alleged errors occurred—errors before trial, for example, may result in a
defendant failing to enjoy a favorable plea agreement, while errors during trial
may lead to an unfair conviction. See id. at 695 (noting the different questions
posed when a defendant challenges a conviction rather than a sentence). When
a defendant challenges a conviction, the second Strickland prong is particularly
demanding: "[t]he error committed must be so serious as to undermine the
court's confidence in the jury's verdict or the result reached." State v. Allegro,
193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).
Short of obtaining immediate relief, a defendant may prove that an
evidentiary hearing is warranted to develop the factual record in connection with
an ineffective assistance claim. Preciose, 129 N.J. at 462–63. The PCR court
should grant an evidentiary hearing when a defendant is able to prove a prima
facie case of ineffective assistance of counsel, there are material issues of
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disputed fact that must be resolved with evidence outside of the record, and the
hearing is necessary to resolve the claims for relief. R. 3:22-10(b); Preciose,
129 N.J. at 462. To meet the burden of proving a prima facie case, a defendant
must show a reasonable likelihood of success under the Strickland test.
Preciose, 129 N.J. at 463. "[C]ourts should view the facts in the light most
favorable to a defendant to determine whether a defendant has established a
prima facie claim." Id. at 462–63.
"[I]n order to establish a prima facie claim, a petitioner must do more than
make bald assertions that he [or she] was denied the effective assistance of
counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)
(emphasis omitted). The petitioner must allege specific facts sufficient to
support a prima facie claim. Ibid. The petitioner must present these facts in the
form of admissible evidence. In other words, the relevant facts must be shown
through "affidavits or certifications based upon the personal knowledge of the
affiant or the person making the certification." Ibid.
IV.
Defendant contends that his trial counsel was ineffective for advising him
to reject a pretrial plea offer that would have capped the sentence at twenty-five
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years.1 Defendant certified that trial counsel explained he should reject the offer
because his case was easy and that defense counsel felt good about proceeding
to trial. Defendant contends trial counsel did little to explain the strength of the
State's case, thereby depriving defendant of information necessary to make an
informed decision whether to accept the plea offer. Defendant also certified that
trial counsel did not inform him of his maximum sentencing exposure so that he
could properly consider the State’s offer to cap the sentence at twenty-five years.
A defendant's Sixth Amendment right to a fair trial extends to the plea-
bargaining process. Lafler v. Cooper, 566 U.S. 156, 162 (2012); State v.
Taccetta, 351 N.J. Super. 196, 200 (App. Div. 2002). "In the context of a guilty
1
The exact terms and circumstances of the plea offer are uncertain. See infra
note 2. The State disputes that it ever offered defendant a twenty-five-year
sentence. However, the PCR judge, who also presided over the trial,
acknowledged, based on the judge's own file and personal recollection, that a
twenty-five-year offer had in fact been made to defendant. We note that if the
plea offer required defendant to plead guilty to murder, then a twenty-five year
sentence would have been illegal, since the minimum sentence that may be
imposed on a conviction for murder is thirty years without parole. N.J.S.A.
2C:11-3(b). The record does not make clear whether the State had offered to
dismiss the murder count in favor of a guilty plea to aggravated manslaughter,
which carries an ordinary term of imprisonment between ten and thirty years.
N.J.S.A. 2C:11-4(c). The uncertainty regarding the terms of the plea offer,
especially when viewed in the context that the State does not even acknowledge
that it tendered a plea offer, highlights the inadequacy of the current record and
underscores the need for an evidentiary hearing to clarify the circumstances
surrounding the plea offer and its rejection.
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plea, counsel is required to give a defendant information sufficient 'to make a
reasonably informed decision whether to accept a plea offer.'" Shotts v. Wetzel,
724 F.3d 364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d 39,
43 (3d Cir. 1992)). "Knowledge of the comparative sentencing exposure
between standing trial and accepting a plea offer" is crucial to providing a
defendant with the necessary information to make an informed decision in
accepting or rejecting a plea offer. Day, 969 F.2d at 43.
In the matter before us, the PCR court concluded that defendant failed to
make a prima facie case that defense counsel provided ineffective assistance of
counsel in advising defendant to proceed to trial and reject the State's twenty -
five-year plea offer. The PCR court found that defendant presented no evidence
establishing that defense counsel advised defendant to reject the twenty-five-
year plea offer. The court also concluded that in any event, defendant could not
establish prejudice, the second prong in the two-part Strickland test, because the
plea offer was contingent upon an event that never came to fruition—
codefendant also pleading guilty—and also because defendant ended up with a
lesser sentence than the one contemplated in the plea offer. The PCR court also
found that there were no material issues of disputed fact requiring an evidentiary
hearing.
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Our review of the record contradicts the PCR court’s findings. The PCR
court found that defendant failed to present evidence in the form of certifications
or affidavits showing that defense counsel advised defendant to reject the ple a
offer and proceed to trial. However, defendant stated in a supplemental affidavit
that "[t]here was a plea bargain offered by the Prosecutor's Office of Camden
County for 25 years. It was the contention of my counsel that I not take the plea
because as she said, the case was easy." Defendant also certified that "defense
counsel told me generally that she felt good about proceeding to trial and
accordingly advised me to go to trial." Furthermore, defendant certified that his
counsel advised him to reject a plea offer without detailing his maximum
sentencing exposure and while doing "little to explain to [him] the strengths of
the State's case."
As the New Jersey Supreme Court observed in Porter, "[t]he development
and resolution of ineffective assistance of counsel claims frequently call for an
evidentiary hearing 'because the facts often lie outside the trial record and
because the attorney's testimony may be required.'" 216 N.J. 343, 354 (2013)
(quoting Preciose, 129 N.J. at 462). In the present case, any discussions between
defendant and his trial counsel concerning the State’s plea offer and defense
counsel’s evaluation of the strength of the State’s expected trial proofs would
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not have occurred on the record. Accordingly, any claim of ineffective
assistance with respect to counsel's advice on accepting or rejecting a plea offer
can only be supported by means of affidavit or certification. In this instance,
we believe the statements made in defendant’s certifications, when viewed in
the light most favorable to defendant, are adequate to satisfy his burden of
production for purposes of his entitlement to an evidentiary hearing. R. 3:22-
10(b).
Of course, an evidentiary hearing would be unnecessary and unwarranted
if the record were to show, as the PCR court found, that defendant could not
possibly establish prejudice from his decision to reject the State’s plea offer.
See Lafler, 566 U.S. at 174 (holding that where a defendant's ineffective
assistance claim rests on the improper rejection of a plea deal, a defendant must
demonstrate prejudice by establishing that "but for counsel's deficient
performance there is a reasonable probability he [or she] and the trial court
would have accepted the guilty plea").
In this instance, the PCR court's conclusion that defendant could not
establish prejudice under the second prong of Strickland is based on two
independent grounds. First, defendant could not have reaped the benefit of the
State’s offer because it was contingent on codefendant Pierce also pleading
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guilty, which Pierce refused to do. Second, defendant ultimately received a
lesser sentence than the one that would have been imposed had he accepted the
plea offer. Our review of the record, however, provides support for neither of
the bases upon which the PCR court found that defendant could not have
suffered prejudice by his rejection of the plea offer.
We first address the contingent nature of the plea offer. The PCR court
found that the plea offer tendered to defendant was contingent on Pierce
pleading guilty based on the following statement made by defendant's trial
counsel at the initial sentencing hearing:
Secondly -- and I think this is also something that
should be considered strongly by the Court - - he was
always willing to plea [sic] in this case. There were
negotiations that were ongoing over the course of
several years to [plead] this case, up until the time when
the State indicated that there was no longer a plea
available to [defendant] unless [codefendant Pierce]
was going to plea [sic] and, of course, that was never
the case. So, [defendant] went to trial when he had been
willing to work out a plea. As I said, up until the time
when that possibility was withdrawn by the State.
The PCR court considered this statement as evidence that defendant could
not have accepted and effectuated the plea offer because it was contingent on
codefendant also agreeing to plead guilty. However, counsel's statement
suggests that there may have been a time when the State's plea offer was not
A-0531-18T4
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contingent on Pierce also pleading guilty, and that this contingency was imposed
only later in the course of several years of ongoing negotiations. The phrase "up
until the time the State indicated that there was no longer a plea available to
[defendant] unless [codefendant Pierce] was going to plea" indicates that, at
some point, a plea offer had been tendered to defendant that was not dependent
on Pierce's willingness to plead guilty. (Emphasis added).
We recognize that defense counsel’s above-quoted statement was made at
sentencing in support of an argument that defendant had been willing to accept
responsibility for his actions but was foreclosed from doing so because of
Pierce’s insistence on exercising his right to go to trial. Viewed in the context
of a sentencing allocution, counsel’s statement might be interpreted to suggest
that defendant never had an opportunity to make a timely acceptance of
responsibility by pleading guilty pursuant to an offered plea agreement.
However, the literal phrasing of counsel’s statement also supports the
interpretation that the contingency was not imposed by the State at the outset of
negotiations but rather was imposed only later, after the State had invested time
and effort in prosecuting the case.
The point simply is that counsel's reference to plea negotiations during
her sentencing allocution does not reveal the terms and conditions of the plea
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offer with sufficient detail or precision from which we might reasonably
conclude that defendant was precluded from ever accepting and effectuating the
offer. Cf. Porter, 216 N.J. at 355 ("Certain factual questions, 'including those
relating to the nature and content of off-the-record conferences between
defendant and [the] trial attorney,' are critical to claims of ineffective assistance
of counsel and can 'only be resolved by meticulous analysis and weighing of
factual allegations, including assessments of credibility.'" (quoting State v.
Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998)). Viewed in the light most
favorable to defendant, defense counsel's statement is susceptible to the
interpretation that defendant had the opportunity to accept the plea offer before
the State imposed as a contingency that Pierce also accept the plea. Preciose,
129 N.J. at 462–63. Because it is possible to ascribe different meanings to
defense counsel's statement, we find an evidentiary hearing is necessary to fully
understand (1) the precise terms of the plea offer, (2) the circumstances in which
it was tendered, (3) when exactly the State first made the plea offer contingent
on Pierce pleading guilty, and (4) when in relation to the imposition of such a
precondition did defense counsel give the advice now claimed to constitute
ineffective assistance of counsel.
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We next address the PCR court’s conclusion that defendant cannot show
prejudice from his decision to reject the State’s plea offer because he would have
served more time under that offer than under the sentence he is currently serving
following his trial convictions. It is true that the combined NERA and Graves
Act parole ineligibility terms he is currently serving are slightly less than the
twenty-five-year stipulated 2 sentence that apparently would have been imposed
had he pled guilty pursuant to the State’s plea offer. We do not believe,
however, that for purposes of prejudice analysis under Strickland, the potential
duration of imprisonment can be measured solely by reference to parole
ineligibility terms. There remains a possibility that defendant will not earn
release at his earliest and subsequent parole eligibility dates and thus might be
required to serve the full twenty-eight-year sentence that was imposed. It also
is possible that defendant may lose the commutation and work credits awarded
during his incarceration. See N.J.S.A. 30:4-140; N.J.A.C. 10A:9-5.1. In that
event, defendant may serve more time in prison than if he had been sentenced
in accordance with the State’s pretrial plea offer.
2
The record before us does not make clear whether the twenty-five-year period
refers to a maximum term of imprisonment or a period of parole ineligibility.
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Furthermore, defendant's maximum potential term of imprisonment must
account for the statutorily specified periods of parole supervision the trial court
was required to impose as part of defendant's sentence for his two NERA
convictions. N.J.S.A. 2C:43-7.2(c). Run consecutively, the three-year period
of parole supervision imposed on his second-degree passion/provocation
manslaughter conviction and the five-year period of parole supervision imposed
on his first-degree attempted murder conviction combine for a total of eight
years of parole supervision following defendant's release from prison. See State
v. Friedman, 209 N.J. 102, 120 (2012) (requiring parole supervision terms on
separate NERA convictions to be served consecutively where the sentencing
court has sentenced a defendant to consecutive custodial NERA terms). Were
defendant to be released on parole and thereafter have his parole revoked, he
might be returned to prison and required to serve more time in prison than the
twenty-eight-year aggregate “maximum” sentence.
In sum, although it is possible that defendant will ultimately spend less
time in prison than he would have spent had the plea agreement been effectuated,
it also is possible that he will serve more than twenty-five years in prison.
Accordingly, the PCR court was mistaken in concluding that defendant cannot
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possibly have suffered prejudice from his decision to reject the State’s plea
offer.
V.
Defendant's remaining contentions lack sufficient merit to warrant
extensive discussion in this written opinion. See R. 2:11-3(e)(2). As to these
contentions, we adopt the thorough and cogent analysis set forth in the PCR
court’s written opinion.
With respect to defendant’s claim that his counsel forced him to testify,
the record shows that the trial court conducted an appropriate colloquy with
defendant in open court during which defendant knowingly and voluntarily
waived his right to remain silent and instead exercised his right to testify in his
own defense. The record clearly shows that after being informed of his right to
remain silent and after being given the opportunity to consult with trial counsel,
defendant expressly told the court that he made the decision to testify knowingly
and voluntarily, and that no one pressured him to testify. The PCR court, who
was also the trial judge, added that defendant did not hesitate or appear reluctant
to testify.
With respect to defendant’s contention that his counsel was ineffective in
her summation in explaining the passion/provocation defense and the concept of
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transferred intent, the PCR court found that defense counsel gave an elaborate
and effective summation, encompassing the very arguments defendant raised in
his PCR petition.
With respect to defendant’s contention that his counsel was ineffective in
allowing the jury to view defendant in shackles, the record shows that ca reful
attention was paid by counsel and the trial court to ensure that the jury did not
see that defendant was wearing a leg brace. The court took adequate
precautions, and the record shows that the jury never saw the restraining device.
Finally, we address defendant’s contention that trial counsel was
ineffective for failing to request a jury charge explicitly detailing the
relationship between passion/provocation manslaughter and transferred intent,
which, according to defendant, led the jury to reach inconsistent verdicts. On
direct appeal, we rejected defendant’s challenge to the inconsistency in the jury
verdicts.
Defendant now seeks to reframe the jury instruction issue as a denial of
his right under the United States and New Jersey Constitutions to the effective
assistance of counsel. However, defendant raises this specific ineffective
assistance argument for the first time on appeal. He did not present this
argument to the PCR court.
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In these circumstances, we decline to consider defendant's contention on
its merits.
It is a well-settled principle that . . . appellate courts
will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such
a presentation is available "unless the questions so
raised on appeal go to the jurisdiction of the trial court
or concern matters of great public interest."
[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973) (quoting Reynolds Offset Co. v. Summer, 58
N.J. Super. 542, 548 (App. Div. 1959)).]
Defendant’s claim that counsel was ineffective in respect to the jury
instructions does not go to the jurisdiction of the trial court. Nor does his
contention raise an issue of great public importance that would warrant our
exercising original jurisdiction. We therefore decline to consider this argument,
which may be raised to the PCR court either by a motion to amend the PCR
petition or by filing another petition.
VI.
For the reasons explained in section IV of this opinion, we remand the
matter to the PCR court to convene an evidentiary hearing solely on defendant’s
contention that counsel rendered ineffective assistance with respect to the advice
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counsel gave to defendant concerning the State’s plea offer. 3 In all other
respects, we affirm the PCR court’s decision to deny defendant’s petition
without a hearing. We do not retain jurisdiction.
Affirmed in part and remanded for proceedings consistent with this
opinion.
3
We note that in the event the PCR court on remand decides to grant defendant's
petition, the appropriate relief would not be to order a new trial but rather to
reoffer the plea agreement. Lafler, 566 U.S. at 174 (rejecting remedy of specific
performance of plea agreement, as distinct from re-offering of plea agreement).
That would preserve for the trial court its determination whether to accept the
plea agreement and sentence defendant in accord with it. Ibid.; see also R. 3:9-
3(e) (permitting the trial court to vacate a plea if it determines "the interests of
justice would not be served by effectuating the [plea] agreement . . . o r by
imposing sentence in accordance with the court's previous indications as to
sentence"). As noted, the current record does not indicate the terms of the plea
offer. We therefore have no information before us concerning the periods of
parole ineligibility and parole supervision period required by NERA.
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