NOT FOR PUBLICATION WITHOUT THE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-3605-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER M. JACKSON,
Defendant-Appellant.
—————————————————————————————
Submitted May 25, 2017 – Decided July 6, 2017
Before Judges Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
08-04-0523.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rasheedah Terry, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Susan Berkow, Special
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Christopher Jackson appeals from a May 23, 2014 Law
Division order denying his petition for post-conviction relief
(PCR) without an evidentiary hearing. He also appeals from a
February 5, 2016 order denying reconsideration. Having reviewed
defendant's arguments and the applicable law, we affirm.
On April 3, 2008, a Middlesex County grand jury returned
Indictment No. 08-04-0523, charging defendant with first-degree
murder, N.J.S.A. 2C:11-3(a)(1) (count one); third-degree criminal
restraint, N.J.S.A. 2C:13-2(a)1 (count two); and third-degree
hindering apprehension, N.J.S.A. 2C:29-3(b) (count three). On
September 12, 2008, pursuant to a negotiated plea agreement,
defendant pled guilty to first-degree aggravated manslaughter,
N.J.S.A. 2C:11-4(a), an amended charge of count one. In return,
the State agreed to dismiss the remaining counts and recommend a
sentence of up to twenty-five years of imprisonment, subject to
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
At his plea hearing, defendant admitted that in the early
hours of November 23, 2007, he had an altercation with the victim
at the victim's apartment in Perth Amboy after drinking alcohol
and using cocaine for several hours. Defendant had been staying
with the victim at the apartment. Defendant acknowledged the
victim made physical advances towards him, but defendant was able
to "keep him away" after a brief physical confrontation.
1
Both the indictment and defendant's judgment of conviction
list the criminal restraint charge as a fourth-degree offense.
However, the statutory citation, N.J.S.A. 2C:13-2, is a crime of
the third degree.
2 A-3605-15T1
When they physically separated, defendant acknowledged the
victim "taunt[ed]" him by claiming he told other people and would
tell his family they were in a homosexual relationship. Defendant
then became angry and beat the victim, repeatedly delivering strong
blows to his head and face. Defendant eventually rendered the
victim incapable of fighting back, at which point defendant decided
to take his belongings and leave the apartment. Prior to leaving,
defendant bound the victim's hands and feet with an electrical
cord to immobilize him and inserted a cloth into the victim's
mouth. Defendant admitted that before he left, he heard the victim
gasping for air and struggling. Defendant left the apartment
after the victim ceased making noises and was no longer moving or
breathing. He did not call for medical aid.
Defendant then affirmed his plea was voluntary, and he had
adequate time to consult with his attorney before making his
decision. He further acknowledged he understood the consequences
of his plea.
Defendant obtained new counsel following his guilty plea, and
on May 28, 2009, filed a motion to withdraw his plea. On July 9,
2009, after a hearing, the judge denied this motion.
The judge sentenced defendant on October 14, 2009. Defendant
requested the judge find mitigating factors N.J.S.A. 2C:44-1(b)(2)
(defendant did not contemplate his conduct would cause serious
3 A-3605-15T1
harm), (3) (defendant acted under a strong provocation), (4)
(substantial grounds tending to excuse defendant's conduct), and
(8) (defendant's conduct was the result of circumstances unlikely
to recur). The judge found the record supported aggravating
factors N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the
offense), (3) (risk of reoffending), (6) (defendant's prior
criminal record), and (9) need for deterrence. He found mitigating
factors N.J.S.A. 2C:44-1(b)(3) and (8). After concluding the
aggravating factors outweighed the mitigating ones, the judge
sentenced defendant to twenty-three years of imprisonment, subject
to NERA.
Defendant appealed, and the matter was scheduled on the
Excessive Sentence Oral Argument (ESOA) calendar. See R. 2:9-11.
Defendant only challenged his sentence on appeal and did not
dispute his underlying conviction. On March 9, 2011, following
oral argument, we affirmed defendant's sentence.
Two years later, on May 3, 2013, defendant filed a petition
for PCR, arguing his plea and sentencing counsel both rendered
ineffective assistance. On May 23, 2014, following oral argument,
the PCR judge denied defendant's petition without an evidentiary
hearing. Defendant moved for reconsideration, which the PCR judge
denied on February 5, 2016.
4 A-3605-15T1
Defendant then filed this appeal and advances the following
arguments:
POINT I
THE PCR COURT'S ORDER THAT DENIED DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF MUST BE
REVERSED BECAUSE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL IN THE
PROCEEDINGS BELOW
A. Trial counsel failed To Investigate
And Present Viable Defense.
1. Mens Rea Defenses.
a) Extreme Intoxication.
b) Diminished capacity.
c) Insanity defense.
2. Self Defense.
B. Defense Counsel Failed to Perform
Proper Investigation.
C. Defendant Did Not Enter Into A
Voluntary Plea Because Counsel
Coerced Him Into Entering Into Said
Plea.
D. Sentencing Counsel Failed to Argue
for Mitigating Factors Amply
Supported by the [R]ecord.
POINT II
THE PCR COURT ABUSED ITS DISCRETION WHEN IT
DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY
HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA
FACIE CASE FOR INEFFECTIVE ASSISTANCE OF
COUNSEL.
5 A-3605-15T1
The United States Supreme Court established the test for
determining whether counsel was ineffective in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
which our Supreme Court adopted in State v. Fritz, 105 N.J. 42
(1987). In order to meet this two-prong test, the defendant must
establish both that: (1) 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 that there
exists a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Strickland, supra, 466 U.S. at 687, 694, l04 S.
Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
Similarly, when a defendant claims ineffective assistance in
connection with a guilty plea, he or she must show "(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. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in
original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
6 A-3605-15T1
When a defendant raises a claim for ineffective assistance
of counsel in support of PCR, the judge should grant an evidentiary
hearing "if [the] defendant has presented a prima facie claim in
support of post-conviction relief." State v. Preciose, 129 N.J.
451, 462 (1992). To establish a prima facie claim, the defendant
"must demonstrate the reasonable likelihood of succeeding under"
the Strickland test. Id. at 463. The judge "should view the
facts in the light most favorable to the defendant." State v.
Jones, 219 N.J. 298, 311 (2014). However, the "defendant must
allege specific facts and evidence supporting his allegations,"
State v. Porter, 216 N.J. 343, 355 (2013), and "must do more than
make bald assertions that he was denied the effective assistance
of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div.), certif. denied, 162 N.J. 199 (1999). We review the decision
of the PCR judge to forgo an evidentiary hearing de novo. State
v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145,
125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
Applying these standards, we first reject defendant's
arguments his plea counsel was ineffective for failing to
investigate and present the "mens rea" defenses of intoxication,
diminished capacity, and insanity. Defendant asserts counsel
should have used these defenses to rebut the "purposely" or
"knowingly" mental-state requirements of first-degree murder,
7 A-3605-15T1
criminal restraint, and hindering apprehension. See N.J.S.A.
2C:11-3(a)(1) and (2); N.J.S.A. 2C:13-2(a); N.J.S.A. 2C:29-3(b).
Regarding intoxication, defendant cites his plea admissions
and a toxicology report showing cocaine and alcohol in his system
to argue counsel should have pursued this defense. Voluntary
intoxication that negates purpose or knowledge can provide a
defense to crimes that require proof of these mental states,
including first-degree murder. See State v. Warren, 104 N.J. 571,
576 (1986); N.J.S.A. 2C:2-8(a). However, voluntary intoxication
is not a defense to aggravated manslaughter, which requires the
State prove "[t]he actor recklessly causes death under
circumstances manifesting extreme indifference to human life."
N.J.S.A. 2C:11-4(a)(1); State v. Junita, 224 N.J. Super. 711, 722
(App. Div.), certif. denied, 113 N.J. 339 (1988); N.J.S.A. 2C:2-
8(b). Based on the record before us, there is no question
defendant's actions met the requirements for an aggravated
manslaughter conviction. Therefore, because defendant pled guilty
to aggravated manslaughter, he has failed to satisfy the second
prong of Strickland by showing "the result of the proceeding would
have been different." Strickland, supra, 466 U.S. at 694, l04 S.
Ct. at 2068, 80 L. Ed. 2d at 698.
Defendant next argues counsel was ineffective for failing to
consult an expert to explore the viability of the defenses of
8 A-3605-15T1
diminished capacity and insanity. Defendant points to several
facts in support of these arguments, including his drug and alcohol
use, his fear of his father's alleged homophobic beliefs, and his
presentence report, which states he was "reportedly diagnosed with
Paranoid Schizophrenia and Post Traumatic Stress Disorder."
However, defendant has failed to identify any evidence suggesting
he was suffering from such impairments during the incident in
question. Instead, defendant's presentence report shows he
knowingly confessed his actions to police and gave a videotaped
statement admitting he did so because the victim "tried to play
me out in a sexual manner." Defendant later affirmed these events
under oath at his plea hearing. We therefore find defendant's
claims amount to "bald assertions" of ineffective assistance that
do not entitle him to an evidentiary hearing. Cummings, supra,
321 N.J. Super. at 170.
Defendant also argues plea counsel was ineffective for
failing to purse a claim for self-defense. This argument lacks
merit. In order to justify the use of deadly force, the actor
must "reasonably believe[] that such force is necessary to protect
himself against death or serious bodily harm." N.J.S.A. 2C:3-
4(b)(2). "[A] defendant claiming self-defense must have an actual
belief in the necessity of using force, and must also establish
9 A-3605-15T1
that the belief was honest and reasonable." State v. Urbina, 221
N.J. 509, 525 (2015).
Defendant contends the victim's advances established a
reasonable belief that force was necessary to protect himself from
sexual assault. The record shows defendant first used force to
"keep [the victim] away"; he then used deadly force not to protect
himself, but in response to the victim's taunting after they had
physically separated. Because there was no basis to support a
reasonable belief that deadly force was necessary, defendant's
counsel was not deficient for failing to raise this claim.
Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed.
2d at 693.
Defendant further asserts these alleged errors show plea
counsel "failed to properly investigate the facts and the law."
For the reasons discussed, we reject defendant's arguments as mere
"bald assertions that he was denied the effective assistance of
counsel." Cummings, supra, 321 N.J. Super. at 170.
Defendant next argues his plea was involuntary because plea
counsel "pressured him into pleading guilty." Specifically,
defendant alleges counsel told him he would receive a higher
sentence if he did not accept the State's plea offer. We reject
defendant's claim, as he affirmed under oath that his plea was
voluntary and he understood its consequences. We further find
10 A-3605-15T1
plea counsel's assessment was correct; as the PCR judge noted, the
evidence supporting a conviction for first-degree murder was
"overwhelming." The minimum sentence for first-degree murder is
thirty years of imprisonment. N.J.S.A. 2C:11-3(b)(1). Therefore,
counsel's alleged statements were entirely appropriate and did not
meet the standard for ineffective assistance.
Last, defendant contends his sentencing counsel was
ineffective for failing to argue mitigating factors N.J.S.A.
2C:44-1(b)(11) (imprisonment would cause excessive hardship to
dependents), and (12) (willingness of defendant to cooperate with
law enforcement). Defendant argues these factors were applicable
because he has three minor children, and he cooperated with law
enforcement by confessing to police that he "did it."
However, sentencing judges are only obligated to find
mitigating factors that "clearly were supported by the record,"
which was not the case here. See State v. Bieniek, 200 N.J. 601,
608 (2010). According to defendant's presentence report, he does
not live with his children and admitted he failed to make child
support payments.2 These facts do not clearly indicate excessive
hardship to dependents. See State v. Dalziel, 182 N.J. 494, 505
(2005). Moreover, we have questioned whether confessions
2
As defendant notes, his presentence report does not explicitly
indicate arrearage in his child support payments.
11 A-3605-15T1
constitute "cooperation" under mitigating factor N.J.S.A. 2C:44-
1(b)(12). See State v. Read, 397 N.J. Super. 598, 613 (App. Div.),
certif. denied, 196 N.J. 85 (2008). Counsel was not deficient for
failing to raise these factors.
Moreover, defendant cannot show prejudice. Aggravated
manslaughter carries a maximum sentence of thirty years'
imprisonment. N.J.S.A. 2C:11-4(c). Given the nature of
defendant's offense, we find the imposed twenty-three year
sentence was entirely appropriate, and defendant has failed to
show how the outcome would have been different had his counsel
raised these mitigating factors. Strickland, supra, 466 U.S. at
694, l04 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Affirmed.
12 A-3605-15T1