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APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0418-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES D. DIXON,
Defendant-Appellant.
______________________________________
Submitted February 2, 2017 – Remanded February 23, 2017
Resubmitted August 24, 2017 - Decided August 29, 2017
Before Judges Lihotz and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
No. 10-03-0358.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, on the briefs).
Andrew C. Carey, Middlesex County
Prosecutor, attorney for respondent (Joie
Piderit, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
This post-conviction relief (PCR) matter returns to us
following remand proceedings directed by our previous opinion,
State v. Dixon, No. A-0418-15 (App. Div. Feb. 23, 2017). For
the reasons that follow, we remand for an evidentiary hearing.
I
This matter was previously remanded for the reasons set
forth in our opinion, which need not be repeated at length, but
for the following essential facts. Following a bench trial,
defendant was found guilty of second-degree robbery, N.J.S.A.
2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; third-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(7); fourth-degree
resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2); fourth-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d);
false imprisonment, N.J.S.A. 2C:13-3. Ultimately, defendant was
sentenced to an aggregate twenty-year term of imprisonment.
Briefly, during the trial, defendant did not dispute he
entered the victim's home to commit a burglary. In a statement
provided to the police, defendant stated when he entered the
victim's home, the victim was descending the stairs. Startled
by defendant's presence, the victim started to run upstairs but
slipped and fell down the stairs. While the victim lay injured
on the floor, defendant took the victim's wallet. Defendant was
apprehended by the police shortly thereafter.
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The victim had no recollection of the incident. However,
the emergency room physician who treated the victim testified he
sustained blunt force trauma to the face, which caused multiple
facial fractures. The doctor opined the injury was most likely
caused by a "fisting" of the face and not by the fall. The
trial court found the physician's testimony credible and,
because it established defendant injured the victim during the
theft, determined the robbery and burglary convictions were
properly graded as second-degree crimes. See N.J.S.A. 2C:15-
1(a)(1) and (b); N.J.S.A. 2C:18-2(b)(1).
Significantly, before trial, the State tendered an offer to
defendant that were he to plead guilty to third-degree burglary,
N.J.S.A. 2C:18-2, the State would recommend a ten-year term of
imprisonment and dismiss the remaining charges. In his PCR
petition, defendant claimed his attorney discouraged him from
accepting this offer, advising the State had no evidence he
assaulted the victim because the victim could not recollect the
incident. Relying on his attorney's advice, defendant spurned
the plea offer and went to trial.
Defendant contends counsel was ineffective for providing
this advice. Although the victim could not recall what
transpired during the incident and, thus, could not testify he
was struck by defendant, defendant claims his attorney knew of
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the physician's opinion regarding the cause of injury, but
failed to advise of the physician's potentially damaging
testimony. As a result, he argues he was not properly informed
of the consequences of accepting or rejecting the plea offer.
Because the PCR court did not decide whether counsel had
been ineffective in this respect, we remanded this matter for
the PCR court to address this particular allegation. On remand,
the court found defense counsel had not been ineffective. The
PCR court's principal reasons were as follows:
[A]lthough the parties had the medical
discovery, they did not have the benefit of
the testimony of the emergency room
physician. . . . So, I don't know how that
the defense attorney could consider the
physician's testimony. . . . [But] the
medical records indicate what the injuries
were and – opine as to the fact that it was
from a – a blow from the defendant. . . .
And it appears defense counsel thought he
had the opportunity to secure a third-degree
conviction of burglary. And you have here
where the victim has no memory of what
happened. There's a lack of evidence. The
medical doctor conceded the injuries could
have been received from falling down the
stairs, which is reasonable doubt. . . .
And all the indications are that [defense
counsel] gave considered advice that because
the victim had no memory, the defendant
basically said he had nothing to do with him
falling down the stairs and receiving the
injury, lack of evidence, keystone for
finding somebody not guilty, and also
reasonable doubt as to how the injuries
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. . . were sustained by the victim. Defense
– defense counsel had a reasonable shot at
prevailing.
II
We again set forth the applicable law, recited in our
previous opinion, when a defendant asserts counsel provided
ineffective assistance during the plea process. For a defendant
to obtain relief based on ineffective assistance grounds, he is
obliged to show not only the particular manner in which
counsel's performance was deficient, but also the deficiency
prejudiced his right to a fair disposition of the charges. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42,
58 (1987).
During plea bargaining, "a defendant has the right to make
a reasonably informed decision whether to accept a plea offer."
United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992); see also
State v. Nichols, 71 N.J. 358, 361 (1976). "Prior to trial an
accused is entitled to rely upon his counsel to make an
independent examination of the facts, circumstances, pleadings
and laws involved and then to offer his informed opinion as to
what plea should be entered." Von Moltke v. Gillies, 332 U.S.
708, 721, 68 S. Ct. 316, 322, 92 L. Ed. 309, 319 (1948).
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"If a plea bargain has been offered, a defendant has the
right to effective assistance of counsel in considering whether
to accept it." Lafler v. Cooper, 566 U.S. 156, 168, 132 S. Ct.
1376, 1387, 182 L. Ed. 2d 398, 410 (2012). To establish
prejudice, a defendant must show a reasonable probability he or
she would have accepted the plea, the court would have found the
plea acceptable, and the result would have been less severe than
that imposed upon conviction after trial. Id. at 164, 132 S.
Ct. at 1385, 182 L. Ed. 2d at 407.
Here, it is defendant's contention counsel's advice led to
his rejecting a plea offer that would have been accepted and
would have been less severe than the sentenced imposed after
trial. We make the following observations about the PCR court's
conclusion counsel was not ineffective, a decision made without
the benefit of an evidentiary hearing.
First, there is no evidence from the record supplied
showing defendant was aware of the content of the medical
discovery. His petition would suggest he was not.
Second, while the defense attorney may not have known the
exact testimony the doctor would have provided, if the medical
records revealed it was the doctor's opinion the victim's
injuries were caused by a blow, the attorney knew or should have
known the doctor might testify consistently with the content of
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those records.1 If the attorney then told defendant there was no
evidence he assaulted the victim, that raises the question
whether counsel was ineffective if he advised defendant to
reject the plea offer.
Third, as for the PCR court's comment the doctor conceded
the injuries could have occurred as a result of the victim
falling down the stairs, we question the relevance of this
point. What is material is the discovery that existed at the
time the State made its plea offer, and whether plea counsel
properly evaluated that discovery and advised defendant of the
risks and benefits of going to trial, so defendant could make an
informed decision whether to accept or reject the plea offer.
Moreover, the court's reference to the doctor's testimony is out
of context; for the sake of completeness we set forth the
doctor's opinion on what caused the victim's injuries.
The doctor testified blunt force trauma can be caused by
"anything" but, in this matter, the victim's facial fractures
were "most likely" caused by being "fisted," because there was a
depression in one of the bones discovered on a MRI of the
victim's face. She did state one could sustain a similar injury
as the result of a fall, but "[i]t would have to be a very
1
We have not been supplied with a copy of the medical
discovery, but the State does not dispute the discovery revealed
this was the doctor's opinion.
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focused fall, somebody was intentionally trying to hit that
area." The doctor also testified it was "possible" to sustain
the same type of injury if one fell and hit his or her face
against the edge of a stair, but she was not questioned whether
it was "probable."
Where a defendant has presented a prima facie claim of
ineffective assistance of counsel and the asserted facts in
support thereof are outside the record, an evidentiary hearing
is required. See State v. Preciose, 129 N.J. 451, 462 (1992).
We are satisfied an adequate prima facie showing was made to
mandate an evidentiary hearing in order to afford defendant the
opportunity to demonstrate to the PCR court a favorable plea
offer was made, the advice his counsel gave respecting his
sentencing exposure upon conviction at trial was seriously
deficient because there was a substantial disparity between the
advice and the actual exposure, and defendant would and could
have entered a guilty plea in accordance with the plea offer had
he been correctly advised. Accordingly, we remand for an
evidentiary hearing.
Remanded for further proceedings consistent with this
opinion.
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