STATE OF NEW JERSEY VS. NORMAN JACKSON

Defendant was indicted on multiple counts that included

first-degree robbery charges. The State offered defendant a

plea agreement in which it would recommend a sentence of ten

years subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2. Defendant rejected the offer and, following a jury

trial, was convicted on eight counts that included first-degree

robbery, second-degree kidnapping, second- and third-degree

weapons offenses, third- and fourth-degree aggravated assault

and third-degree resisting arrest. After appropriate mergers,

the trial judge sentenced defendant to an aggregate sentence of

thirty years subject to NERA.

The facts underlying these convictions are set forth in our

opinion, in which we vacated defendant's conviction for

kidnapping and affirmed his other convictions and sentence.

State v. Jackson, Docket No. A-5155-07 (App. Div. March 15,

2011). The Supreme Court reversed, reinstating defendant's

kidnapping conviction, and affirmed defendant's remaining

convictions and sentence. State v. Jackson, 211 N.J. 394

(2012).

Defendant filed a PCR petition in which he asserted various

claims of ineffective assistance of both his trial and appellate

counsel. The allegations included arguments that were

procedurally barred because they could have been raised on

direct appeal, R. 3:22-4(a), and factual allegations that were

not supported by affidavit or certification as required by Rule

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3:22-10(c). The PCR judge conducted an evidentiary hearing as

to one of defendant's contentions, i.e., that his trial counsel

was ineffective because he failed to respond to the State's plea

offer with a counter-offer defendant asked him to make.

At the hearing, defendant's trial counsel testified

unequivocally that he communicated every plea offer to

defendant. Defendant rejected all plea offers made to him. He

maintained that he wanted to have a trial because he was

innocent.

Defendant testified that after receiving the ten-year plea

offer, he asked his attorney to inquire if the offer could be

reduced to eight years. Defendant stated his counsel never got

back to him as to whether the counter-offer was communicated to

the State. He claimed that he was guilty of the offenses and

wanted to plead guilty before trial but did not convey this to

his trial attorney because his attorney was committed to trying

the case.

The PCR judge made detailed credibility findings regarding

the conflicting testimony, concluding that defendant was not

truthful and accepting the version of events provided by his

trial counsel. In addition, the PCR judge stated that

defendant's remaining allegations of ineffective assistance of

counsel lacked merit.

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In this appeal, defendant presents the following arguments:

POINT I

THE PERFORMANCE OF THE DEFENDANT'S TRIAL ATTORNEY WAS DEFICIENT WHERE HE DID NOT REVIEW WITH THE DEFENDANT THE STRENGTHS AND WEAKNESSES OF THE CASE BEFORE THE DEFENDANT FORMALLY REJECTED THE PLEA OFFER. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PARA. 10 (1947)[)].

POINT II

THE DEFENDANT WAS PREJUDICED WHERE, IN ADDITION TO A MORE SEVERE PRISON TERM BEING IMPOSED AFTER A TRIAL AT WHICH HE WAS FOUND GUILTY, IT APPEARS THE DEFENDANT WANTED TO AMICABLY RESOLVE THIS MATTER AS LATE AS THE FIRST DAY OF TRIAL BY PLEADING GUILTY TO A LESSER TERM. (U.S. CONST. AMEND VI, XIV; N.J. CONST. ART. I, PARA. 10 (1947)[)].

POINT III

THE DEFENDANT INCORPORATES HEREIN ALL OF HIS PRO SE ARGUMENTS FOR POST-CONVICTION RELIEF.

To prevail on his PCR petition, defendant was required to

establish that: (l) counsel's performance was deficient and he

or she made errors that were so egregious that counsel was not

functioning effectively as guaranteed by the Sixth Amendment to

the United States Constitution; and (2) the defect in

performance prejudiced defendant's rights to a fair trial such

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that there exists a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Strickland v. Washington, 466 U.S.

668, 687, 694, l04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674,

693, 698 (1984); see also State v. Fritz, l05 N.J. 42 (l987). A

review of defendant's arguments in light of the record and

applicable principles of law leads us to conclude that he has

failed to satisfy these criteria and that none of his arguments

have any merit.

In his PCR petition and before the PCR judge, defendant

argued that his trial attorney was ineffective for failing to

communicate a counteroffer to the State. In Point I, defendant

raises a different argument — that his trial attorney failed to

communicate to him the strengths and weaknesses in the State's

case and why the State's plea offer was reasonable. Plainly,

the factual basis for this argument could have been explored at

the evidentiary hearing. However, defendant did not raise this

issue before the PCR judge. He may not do so for the first time

on appeal. State v. Arthur, 184 N.J. 307, 327 (2005).

The argument raised in Point II was the subject of the

evidentiary hearing. We are obliged to defer to the PCR judge's

finding that defendant's testimony was not credible, State v.

Nunez-Valdez, 200 N.J. 129, 141 (2009); State v. Barone, 147

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N.J. 599, 615 (1997), which precludes any relief to him on that

ground.

Finally, Point III incorporates the arguments made by

defendant pro se. He alleges his trial counsel was

constitutionally ineffective for failing to: advise him of the

penal consequences prior to trial; challenge the identification

procedure as impermissibly suggestive; request a jury

instruction on cross-racial identification; introduce Sergeant

Mason Maher as a witness; and request the racial profiling

reports against Patrolman Wayne Bizarro. In addition, he

contends that his trial counsel was ineffective for telling the

jury in closing, "I don’t envy you convicting a man of this — on

this type of testimony." Defendant also alleges his appellate

counsel was ineffective for failing to raise on direct appeal

pretrial motions to suppress the handgun and dismiss the

superseding indictment.

These arguments lack sufficient merit to warrant discussion in a written opinion. Affirmed.