STATE OF NEW JERSEY VS. RAHEEM J. JACOBS (15-04-0333, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-0504-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHEEM J. JACOBS,

Defendant-Appellant.
____________________________

Submitted September 17, 2018 – Decided October 25, 2018

Before Judges Sumners and Mitterhoff.

On appeal from Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 15-04-
0333.

Joseph E. Krakora, Public Defender, attorney for
appellant (Janet A. Allegro, Designated Counsel, on the
brief.)

Jennifer Webb-McRae, Cumberland County Prosecutor,
attorney for respondent (Andre R. Araujo, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Raheem Jacobs appeals the trial court's order denying his

petition for post-conviction relief ("PCR") without an evidentiary hearing. We

affirm, substantially for the sound reasons set forth in Judge Jean S. Chetney's

August 21, 2017 oral opinion.

We summarize the pertinent facts from the record on appeal. On January

12, 2014, at approximately 1:34 a.m., a state trooper pulled over defendant for

failing to stop at a stop sign. 1 After the state trooper approached the vehicle, he

observed through the side window the butt of a firearm protruding from

underneath the back of the driver's seat. The state trooper asked defendant to

exit the vehicle. The state trooper then retrieved the firearm, which was a Cal-

Tech .40 caliber sub-machine gun. The state trooper impounded the vehicle and

obtained a search warrant. Pursuant to the warrant, the state trooper searched

the vehicle and recovered some large-capacity magazines, hollow-point

ammunition, and a revolver from inside a black bag that was beneath the driver's

seat. The police tested both the recovered firearms and found them to be

operable.

1
The state trooper also testified that he had been following the vehicle because
a computer search of the license plate indicated that the driver's license of the
registered owner was suspended. Defendant's driver's license was not suspended
at the time of the stop.
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 A Cumberland County grand jury charged defendant in a seven-count

indictment, including various charges for unlawful possession of weapons. On

March 4, 2016, defendant appeared before Judge Cristen P. D’Arrigo for a

Franks2 motion. At this hearing, the responding state trooper testified, and a

portion of the motor vehicle recording ("MVR") of the stop was played for the

court. The court denied the Franks motion.

Subsequently, on March 28, 2016, defendant pled guilty to count five of

the indictment, second-degree unlawful possession of the revolver recovered

from inside the black bag. On May 6, 2016, the court sentenced defendant to an

extended term of eleven years in New Jersey State prison with a five-and-a-half

year term of parole ineligibility, pursuant to the plea agreement. At the

sentencing hearing, defense counsel made no arguments on behalf of defendant,

declining to raise any mitigating factors or to argue for a lesser sentence than

the sentence negotiated in the plea agreement.

Defendant did not appeal the trial court's denial of the Franks motion, his

conviction, or his sentence. Instead, defendant filed a PCR petition alleging

2
Franks v. Delaware, 438 U.S. 154 (1978). "The primary purpose of the hearing
[is] to determine whether the police made material misrepresentations and/or
omissions in seeking . . . warrants from a Superior Court judge and, if so,
whether the evidence gathered from those defective warrants needed to be
suppressed." State v. Smith, 212 N.J. 365, 413 (2012).
A-0504-17T2
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ineffective assistance of his former counsel. After considering the arguments

without an evidentiary hearing, Judge Chetney issued an oral opinion rejecting

defendant's claims on August 21, 2017. Defendant appealed the denial of PCR.

On appeal, defendant raises the following contentions:

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF
WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS
CONTENTION THAT HE FAILED TO RECEIVE
EFFECTIVE LEGAL REPRESENTATION AT THE
PRETRIAL, PLEA AND SENTENCING
PROCEEDINGS.

A. THE PREVAILING LEGAL
PRINCIPLES REGARDING CLAIMS OF
INEFFECTIVE ASSISTANCE OF
COUNSEL ARISING OUT OF
EVIDENTIARY HEARINGS AND
PETITIONS FOR POST-CONVICTION
RELIEF.

B. TRIAL COUNSEL'S FAILURE TO
AGGRESSIVELY PURSUE
DEFENDANT'S INTERESTS DURING
PRETRIAL MOTIONS AND PLEA
NEGOTIATIONS CONSTITUTED
INEFFECTIVE ASSISTANCE OF
COUNSEL AND EFFECTIVELY
PREVENTED DEFENDANT FROM
ENTERING A WILLING, KNOWING
GUILTY PLEA.

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 POINT II

TRIAL COUNSEL'S FAILURE TO MAKE ANY
ARGUMENTS AT THE SENTENCING HEARING
CONSTITUTED INEFFECTIVE ASSISTANCE OF
COUNSEL.

Having considered the record in light of the applicable legal principles, we find

no merit in defendant's arguments. The PCR judge's opinion is legally sound

and well supported by the record. We add only the following brief comments.

In cases where the PCR court does not conduct an evidentiary hearing, we

review the PCR judge's determinations de novo. State v. Jackson, 454 N.J.

Super. 284, 291 (App. Div. 2018) (citation omitted). A PCR petitioner carries

the burden to establish the grounds for relief by a preponderance of the credible

evidence. State v. Goodwin, 173 N.J. 583, 593 (2002) (citations omitted). To

sustain that burden, the defendant must allege and articulate specific facts that

"provide the court with an adequate basis on which to rest its decision." State

v. Mitchell, 126 N.J. 565, 579 (1992).

In his PCR petition and this appeal, defendant primarily contends that his

former counsel was constitutionally ineffective. To establish an ineffective-

assistance-of-counsel claim, a convicted defendant must demonstrate: (1)

counsel's performance was deficient, and (2) the deficient performance actually

prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 687

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(1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland

two-part test in New Jersey). There is a strong presumption that counsel

"rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment." Strickland, 466 U.S. at 690.

Further, in the context of a PCR petition challenging a guilty plea based

on the ineffective assistance of counsel, a defendant must demonstrate 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)). A defendant must also show that "a

decision to reject the plea bargain would have been rational under the

circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010); see also State

v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011).

Defendant first argues that his counsel was ineffective in failing to pursue

an amnesty defense under the 2013 amnesty act. Defendant avers he told his

counsel that he was on the way to turn in the firearms when he was pulled over,

but his counsel did not pursue this defense. The 2013 amnesty act, L. 2013, c.

117, "created a path for people to transfer or surrender firearms that they

possessed unlawfully, during a fixed period of time, without fear of

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prosecution." State v. Harper, 229 N.J. 228, 236 (2017). The provision provided

two ways for an individual to surrender a handgun, rifle, or shotgun: "(1) transfer

the assault firearm to any person lawfully entitled to own or possess su ch

firearm; or (2) voluntarily surrender the assault firearm pursuant to the

provisions of N.J.S.A. 2C:39-12." L. 2013, c. 117, § 1.3 A person seeking to

voluntarily surrender a weapon to the police must "gi[ve] written notice of his

intention to do so, including the proposed date and time of surrender." N.J.S.A

2C:39–12. Such notice must be received "before any charges have been made

or complaints filed against such person for the unlawful possession of the

weapon, device, instrument or substance in question and before any

investigation has been commenced by any law enforcement agency concerning

the unlawful possession." Ibid.

In this case, the PCR judge correctly found that defendant did not satisfy

the elements of an amnesty defense. Defendant presents no evidence that he

transferred the firearms to someone who could lawfully possess them or gave

advance notice of a surrender to the police. We agree with the PCR judge that

3
The act contained a similar provision for assault firearms and added a third
way to comply: a person could transfer or surrender the assault firearm, or
"render the assault firearm inoperable." L. 2013, c. 117, § 2. In this case, it is
undisputed that the two weapons recovered by the police were operable.
A-0504-17T2
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defendant's counsel was not ineffective for declining to raise this unmerit orious

defense.

We also agree with the PCR judge that defendant's counsel was not

ineffective in failing to ensure that the judge at the Franks hearing viewed the

relevant portions of the MVR. We have reviewed the MVR, and agree with the

PCR court that the MVR does not foreclose the possibility that the state trooper

observed the butt of the firearm in plain view. Because the MVR does n ot

contradict the affidavit and testimony of the state trooper, counsel was not

ineffective in making arguments regarding the contents of the MVR at the

Franks hearing.

Finally, we reject defendant's argument that his counsel was ineffective in

failing to argue for a lesser sentence. To be sure, "a defense attorney must have

an unfettered right to argue in favor of a lesser sentence than that contemplated

by the negotiated plea agreement." State v. Briggs, 349 N.J. Super. 496, 501

(App. Div. 2002). But "the court's decision to impose a sentence in accordance

with the plea agreement should be given great respect, since a 'presumption of

reasonableness . . . attaches to criminal sentences imposed on plea bargain

defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div. 1996) (quoting

State v. Sainz, 107 N.J. 283, 294 (1987)). In this case, defendant was subject to

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an extended term based on a previous conviction for unlawful possession of a

weapon and faced a minimum of ten years' incarceration. N.J.S.A. 2C:43-

7(a)(3). Having considered the record, we find no evidence that the sentence

called for by the plea agreement was unreasonable and conclude that defendant's

counsel was not ineffective in failing to argue for a lesser sentence.

In this case, the PCR judge did not misapply her discretion in denying an

evidentiary hearing, as defendant failed to establish a prima facie basis for relief.

State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) ("[W]e review

under the abuse of discretion standard the PCR court's determination to proceed

without an evidentiary hearing."). The remaining issues raised by defendant

lack sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

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