STATE OF NEW JERSEY VS. CHARLES JACKSON (08-11-2612, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-0062-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES JACKSON, a/k/a
RAHEEM WOODS,

Defendant-Appellant.

_____________________________

Submitted May 8, 2018 – Decided July 6, 2018

Before Judges Fisher and Moynihan.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
08-11-2612.

Joseph E. Krakora, Public Defender, attorney
for appellant (William P. Welaj, Designated
Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and
on the brief).

PER CURIAM
 Defendant Charles Jackson was indicted for: second-degree

sexual assault, N.J.S.A. 2C:14-2(c)(1), (c)(4) (counts one and

two); second-degree luring or enticing a child, N.J.S.A. 2C:13-6

(count three); and third-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a) (count four). Defendant was found guilty

after a jury trial on counts three and four, and of fourth-degree

criminal sexual contact, N.J.S.A. 2C:14-3(b), as lesser-included

offenses of counts one and two. He received an aggregate state

prison sentence of fifteen years with seven and one-half years of

parole ineligibility. We affirmed his conviction and sentence,

State v. Jackson, A-5614-11 (App. Div. June 6, 2014);1 our Supreme

Court denied defendant's petition for certification, State v.

Jackson, 220 N.J. 99 (2014).

Defendant appeals from the denial of his post-conviction

relief (PCR) petition without an evidentiary hearing, arguing:

POINT I

THE POST-CONVICTION RELIEF COURT ERRED IN
DENYING THE DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING HIM AN
EVIDENTIARY HEARING TO FULLY ADDRESS HIS
CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE
LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY

1
We need not repeat the facts that are set forth in our prior
opinion.

2 A-0062-17T3
 HEARINGS AND PETITIONS FOR POST-
CONVICTION RELIEF.

B. TRIAL COUNSEL DID NOT ADEQUATELY
REPRESENT THE DEFENDANT ARISING OUT OF
HER FAILURE TO THOROUGHLY DISCUSS WITH
HER CLIENT ALL RELEVANT RAMIFICATIONS
ASSOCIATED WITH THE DECISION WHETHER OR
NOT TO TESTIFY, FURTHER ADVISING THE
DEFENDANT NOT TO TESTIFY DESPITE HIS
DESIRE TO DO SO, AS A RESULT OF WHICH HE
DID NOT TESTIFY IN HIS OWN DEFENSE.

C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM TRIAL
COUNSEL AS A RESULT OF TRIAL COUNSEL'S
FAILURE TO MAKE A MOTION TO DISMISS THE
INDICTMENT BASED UPON PROSECUTORIAL
MISCONDUCT IN THE GRAND JURY.

POINT II

THE POST-CONVICTION RELIEF COURT ERRED IN
DENYING THE DEFENDANT'S PETITION, IN PART, ON
PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.

Unpersuaded by any argument, we affirm.

Absent an evidentiary hearing, our review of the factual

inferences drawn by the PCR court from the record is de novo.

State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016).

Likewise, we review de novo the PCR court's legal conclusions.

Ibid.

Defendant claims only that his trial counsel failed to fully

discuss the consequences of testifying at trial and, although he

wanted to testify, trial counsel advised against it; he does not

claim he was not informed of his right to testify. It is incumbent

3 A-0062-17T3
on trial counsel "to advise defendant on whether to testify and

to explain the tactical advantages or disadvantages" of that

decision. State v. Savage, 120 N.J. 594, 630 (1990) (quoting

State v. Bogus, 223 N.J. Super. 409, 423 (App. Div. 1989)). "[A]

defendant's complete understanding of his right to testify can be

confirmed only when we have assurances that he has been advised

of the particular consequences in the trial at hand." State v.

Bey, 161 N.J. 233, 311 (1999). We have such assurances on this

case, gleaned from the record.

After the trial court reviewed the model charge, "DEFENDANT’S

ELECTION NOT TO TESTIFY,"2 with defendant, and defendant told the

judge he wanted the instruction presented to the jury, his counsel

asked the judge to conduct a Sands3 hearing, explaining that "one

of the reasons he's electing not to testify is because he has a

criminal record" and that when she and defendant were discussing

whether his prior convictions would be admissible to impeach his

credibility, "the fact that he has prior convictions weighed

heavily in our decision" not to testify. She continued, "But

that's only my opinion. It's not a [c]ourt's finding whether it's

admissible or not." Counsel wanted to ascertain the trial court's

2
Model Jury Charges (Criminal), "Defendant's Election Not to
Testify" (rev. May 4, 2009).
3
State v. Sands, 76 N.J. 127 (1978).

4 A-0062-17T3
opinion on the admissibility of the prior convictions and their

possible sanitization.

A few things are clear from the record. The Sands hearing

confirmed that trial counsel advised defendant regarding the use

of his prior convictions if he testified. Counsel gave advice,

but defendant elected not to testify. Although the trial judge

did not engage in the thorough exploration with defendant of the

possible consequences of his choice not to testify as did the

judge in State v. Ball, 381 N.J. Super. 545, 555-57 (App. Div.

2005), defendant acknowledged in colloquy that he wanted the model

jury charge. He admitted in his PCR-supporting certification that

his counsel "advised against . . . taking the stand" but it was

he who "followed" that advice; the decision not to testify was not

unilaterally made by counsel. And it was made by defendant knowing

the judge would likely decide — as he ultimately did — to admit

his unsanitized prior convictions for first-degree robbery,

second-degree possession of a weapon for an unlawful purpose,

second-degree possession of CDS with intent to distribute within

500 feet of public property, third-degree possession of CDS with

intent to distribute within 1000 feet of school property, a first-

degree promoting prison contraband conviction in New York and

third-degree possession of CDS. That decision did not change

after defendant heard the judge's Sands-hearing ruling. In his

5 A-0062-17T3
certification defendant admitted, "I knew [not taking the stand]

was a mistake, but I followed my trial attorney's advice to my

detriment." We see no evidence to support defendant's contention

his counsel failed to advise him of the consequences of exercising

or waiving his right to testify, necessary to satisfy his burden

to show "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed . . . by the Sixth

Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984);

State v. Fritz, 105 N.J. 42, 58 (1987).

Further, we do not see that defendant established he suffered

prejudice – which "is not presumed, and must be proven," State v.

Fisher, 156 N.J. 494, 500 (1998) – due to counsel's deficient

performance, Strickland, 466 U.S. at 687, 691-92. Defendant must

show by a "reasonable probability" that the deficient performance

affected the outcome. Fritz, 105 N.J. at 58.

Defendant – other than to say that it was necessary that he

testify about his version of events lest the jury be left only

with the uncontroverted victim's testimony — did not provide an

affidavit or certification setting forth his version. R. 3:22-

10(c). "In order for a claim of ineffective assistance of counsel

to entitle a PCR petitioner to an evidentiary hearing, 'bald

assertions' are not enough — rather, the defendant 'must allege

facts sufficient to demonstrate counsel's alleged substandard

6 A-0062-17T3
performance.'" State v. Jones, 219 N.J. 298, 312 (2014) (quoting

State v. Porter, 216 N.J. 343, 355 (2013)). Based on this record,

we do not determine, especially in view of his many prior

convictions, that defendant has shown there is a reasonable

probability his testimony would have affected the outcome of his

trial.

We also agree with the PCR judge that the record regarding

counsel's advice was sufficiently developed before the trial court

and is thus barred. R. 3:22-4(a). The issue could have been

raised on direct appeal and we see no exception under Rule 3:22-

4(a)(1), (2) or (3) that warrants relief.4

Defendant's argument that trial counsel was ineffective

because she failed to file a motion to dismiss the indictment

based on prosecutorial misconduct is based on defendant's

contention that "the grand jury was misled when it was informed

there had been 'no results back yet' as to whether any semen had

been found" does not accurately reflect the State's presentation,

the pertinent part of which was:

A JUROR: Did they find any semen?

4
The three exceptions to the bar are that: the issue could not
reasonably have been raised in any prior proceeding; enforcement
of the bar would result in fundamental injustice; or denial of
relief would be contrary to a new state or federal constitutional
law.

7 A-0062-17T3
 [ASSISTANT PROSECUTOR]: None had been
recovered?

[DETECTIVE]: There hasn't been a conclusive
result back from the lab yet. They were being
sent to the lab but there's no results back
yet.

We determine this argument lacks sufficient merit to warrant

discussion. R. 2:11-3(e)(2). We add only the following brief

comments.

Contrary to defendant's argument, the State did not withhold

exculpatory evidence from the grand jury. As defendant concedes

in his merits brief, the report available to the State on the date

of the grand jury presentment – showing that no semen was found

on the submitted items — was only preliminary. As the PCR judge

found, it was not until eighteen days after presentment that the

final laboratory report was completed, showing the presence of the

victim's DNA – and no semen. At the time of presentment, as the

detective testified, no conclusive results were available. The

grand jurors were not told, nor could or did they consider any

evidence in deliberating, that semen had been found. Moreover,

as the PCR judge observed, the victim alleged defendant committed

penile, oral and digital vaginal penetration. The absence of

semen did not "squarely refute[] an element" of the crimes charged;

the State, therefore, was not obligated to present the preliminary

report. State v. Hogan, 144 N.J. 216, 237 (1996) (emphasis

8 A-0062-17T3
omitted). The oral and digital penetration was not refuted by the

absence of semen. And again, we do not see that defendant was

prejudiced. The jury did not find him guilty of the penetration

charges.

Like the claim related to counsel's advice regarding his

testimony, defendant's claim that counsel should have filed a

motion to dismiss the indictment is barred under Rule 3:22-4(a).

The grand jury presentation fully developed this issue which should

have been raised on appeal; we determine no exception to the bar

applies.

We also determine defendant's argument that the PCR judge

abused his discretion by denying him an evidentiary hearing to be

without sufficient merit to warrant discussion here. R. 2:11-

3(e)(2). A defendant must establish a prima facie case in support

of a PCR application, R. 3:22-10(b), by demonstrating "the

reasonable likelihood of succeeding" under the Strickland test

before an evidentiary hearing is ordered, Preciose, 129 N.J. at

462-63. Defendant failed to do so and an evidentiary hearing was

not warranted.

Affirmed.

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