STATE OF NEW JERSEY VS. JEREMIAH A. JACKSON (12-08-1955, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-0708-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEREMIAH A. JACKSON,

Defendant-Appellant.
__________________________

Submitted February 4, 2020 – Decided March 11, 2020

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 12-08-1955.

Joseph E. Krakora, Public Defender, attorney for
appellant (John Vincent Molitor, Designated Counsel,
on the brief).

Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Nicole Lynn Campellone, Assistant
Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant appeals from an order entered by the Law Division on August

1, 2018, which denied his petition for post-conviction relief (PCR). We affirm.

I.

In August 2012, an Atlantic County grand jury returned Indictment No.

12-08-1955, charging defendant with second-degree burglary, while armed,

N.J.S.A. 2C:18-2 (count one); second-degree conspiracy to commit burglary,

N.J.S.A. 2C:5-2, N.J.S.A. 2C:18-2(a)(1) and (b)(2) (count two); second-degree

burglary, during which bodily injury was inflicted, N.J.S.A. 2C:18-2 (count

three); first-degree armed robbery, N.J.S.A. 2C:15-1 (count four); second-

degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-

1 (count five); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count six);

first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count seven); first-degree

felony murder, N.J.S.A. 2C:11-3(a)(2) (count eight); second-degree possession

of a weapon (shotgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count

nine); second-degree conspiracy to possess a weapon (shotgun) for an unlawful

purpose, N.J.S.A. 2C:5-2, N.J.S.A. 2C:39-4(a) (count ten); second-degree

possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a)

(count eleven); second-degree conspiracy to possess a weapon (handgun) for an

unlawful purpose, N.J.S.A. 2C:5-2, N.J.S.A. 2C:39-4(a) (count twelve); second-

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degree unlawful possession of a weapon (shotgun), N.J.S.A. 2C:39-5(c)(1)

(count thirteen); second-degree unlawful possession of a weapon (handgun);

N.J.S.A. 2C:39-5(b) (count fourteen); and fourth-degree tampering with

physical evidence, N.J.S.A. 2C:28-6(1) (count fifteen).

Defendant was tried before a jury. At the trial, the State presented

evidence showing that on the evening of December 9, 2011, Ellis Spell, Jr. was

in his bedroom with his cousins and a friend at the home of his parents, Rhonda

Lawrence and Ellis Spell, Sr. At around 8:30 p.m., one of Ellis, Jr.'s cousins

observed a person, who was apparently looking for his older brother, but he was

not at home.

Ellis, Jr. turned on the porch light and saw a black male, dressed in black,

with a "black shirt tied around his face." Ellis, Jr. realized that the man was

holding a shotgun. He locked the door and ran to his bedroom to alert his cousins

and his friend. One of Ellis, Jr.'s cousins saw a man on the porch holding "a

long gun." He saw another person making his way around the house. Another

cousin heard "pounding" on the front door or the porch wall and heard someone

say, "[y]ou know what we [are] here for."

Ellis, Jr. went to the kitchen to lock the back door. He saw someone

pointing "a silver revolver," and he went to warn his parents. Ellis, Sr. pushed

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him into one of the bedrooms. Rhonda hid in a bedroom closet and called 9-1-

1. She could hear Ellis, Sr. cursing at the men and demanding to know what

they wanted. According to Rhonda, a man said, "You know what we came for."

She heard Ellis, Sr. enter the bedroom and slam the door, after which there were

sounds indicating that the men kicked the bedroom door open. She heard a

scuffle and "three gunshots."

One of Ellis, Jr.'s cousins jumped out of the bedroom window and Ellis,

Jr. followed. Ellis, Jr. said that before he left the house, he heard his father

demand to know what the men wanted, followed by the sounds of a "tussle . . .

like[] they were fighting." The cousin stated that once outside, he heard three

gunshots. He saw three black men carrying what appeared to be two handguns

and a long gun. They ran past him and entered a four-door vehicle.

Police responded to the 9-1-1 call and found Ellis, Sr. lying on his back

on the bathroom floor. He was dead. The medical examiner determined that he

had been struck by two, small-caliber bullets. One of the bullets entered at the

bottom of his right cheek, exited his body, and reentered his chest. The second

bullet pierced the right shoulder and traveled downward. The medical examiner

attributed Ellis, Sr.'s death to the gunshot wounds and scalp lacerations.

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 Three days after the shooting, the police received a tip from a confidential

informant and arrested Tyree Kelly on the street. Kelly was carrying the guns

used in the murder and robbery. Kelly agreed to testify for the State. He stated

that he and defendant were close friends. He met defendant the morning after

the shooting. Defendant was with two other men, whom Kelly did not know.

Defendant told Kelly he went to the Spell residence with an older man, who had

a gun, and a "younger guy."

Defendant asked Kelly to get rid of the guns, which were dropped off at

Kelly's apartment a day or two later. Defendant said he targeted the Spell

residence for a robbery because he and the other men heard they were moving

drugs out of the house. Defendant stated that when they entered the house, the

older man had been "fighting . . . at the [back] door." He told Kelly there was a

scuffle. The shotgun fell and discharged.

Kelly stated that he cleaned the guns so that he could sell them.

Defendant's blood was found on the t-shirt Kelly used to clean the guns. Kelly

was on his way to Philadelphia to sell the guns when the police arrested him.

He said that shortly after the murder, defendant bragged about the shooting and

admitted he "did it."

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 The State's ballistics expert testified that the bullets found in Ellis, Sr.'s

body had been fired from the handgun the police recovered from Kelly. In

addition, the State's forensic scientist testified that a sweatshirt found on the

floor of defendant's car had DNA of Ellis, Sr. and defendant.

The jury found defendant guilty of murder (count six), felony murder

(count seven), burglary while armed with a firearm (count one), conspiracy to

commit armed burglary (count two), burglary during which bodily injury was

inflicted (count three), conspiracy to possess a weapon (shotgun) for an unlawful

purpose (count ten), and conspiracy to possess a weapon (handgun) for an

unlawful purpose (count twelve). The jury found defendant not guilty of the

other charges.

The judge later sentenced defendant to an aggregate term of fifty years of

imprisonment with an eighty-five-percent period of parole ineligibility pursuant

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed

from the judgment of conviction dated September 24, 2013. He raised the

following arguments:

POINT I
THE MURDER CONVICTION MUST BE
REVERSED BECAUSE THE COURT FAILED TO
CHARGE AGGRAVATED AND RECKLESS

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MANSLAUGHTER AS LESSER-INCLUDED
OFFENSES. (Not Raised Below).

POINT II
THE CONVICTIONS FOR BURGLARY AND
BURGLARY FELONY MURDER MUST BE
REVERSED BECAUSE THE COURT INSTRUCTED
THE JURY THAT IN ORDER TO CONVICT
DEFENDANT OF BURGLARY IT HAD TO FIND
THAT HE ENTERED THE PREMISES FOR THE
PURPOSE OF COMMITTING MURDER, BUT
FAILED TO EXPLAIN THAT AS AN
ACCOMPLICE, DEFENDANT MAY NOT HAVE
SHARED THE PRINCIPAL'S INTENT TO COMMIT
MURDER. (Not Raised Below).

POINT III
THE CONVICTIONS FOR BURGLARY AND
BURGLARY FELONY MURDER MUST BE
VACATED BECAUSE THE JURY FOUND, IN
ACCORDANCE WITH THE COURT'S
INSTRUCTION, THAT THE BURGLARY WAS
COMMITTED FOR THE PURPOSE OF
COMMITTING MURDER, AND THE STATE
FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT THAT WAS THE PURPOSE OF THE
BURGLARY. (Not Raised Below).

POINT IV
THE CONVICTIONS FOR BURGLARY AND
BURGLARY FELONY MURDER MUST BE
VACATED BECAUSE THE STATE FAILED TO
PROVE BEYOND A REASONABLE DOUBT THAT
DEFENDANT ENTERED THE PREMISES
WITHOUT LICENSE OR PRIVILEGE, AN
ESSENTIAL ELEMENT OF BURGLARY. (Not
Raised Below).

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 POINT V
THE SENTENCE OF 50 YEARS, 42.5 YEARS
WITHOUT PAROLE, IMPOSED ON THE MURDER
CONVICTION IS EXCESSIVE AND IS BASED ON
IMPROPER CONSIDERATIONS TREATED AS
AGGRAVATING FACTORS.

We affirmed defendant's convictions and sentences in an unpublished

opinion. State v. Jackson, No. A-1425-13 (App. Div. 2015) (slip op. at 9 to 24).

Thereafter, the Supreme Court denied defendant's petition for certification.

State v. Jackson, 223 N.J. 282 (2016).

II.

On April 28, 2016, defendant filed a pro se PCR petition in the Law

Division, alleging he was denied the effective assistance of trial counsel. The

court assigned counsel to represent defendant. Thereafter, defendant filed

certifications dated November 17, 2016, and April 12, 2018, in support of his

petition.

In his certifications, defendant claimed his trial attorney was ineffective

because the attorney: (1) failed to advise him adequately with regard to the

State's plea offer; (2) did not provide him with the discovery so that he could

make an informed decision regarding the State's plea offer; (3) failed to

challenge the State's DNA evidence; (3) advised him to reject the State's plea

offer and go to trial because counsel "was familiar" with one of the jurors; (4)

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conceded defendant was present at the crime scene and was shot at that location;

(5) failed to object to "expert-like" testimony of a witness who said defendant

suffered an injury to his thumb; (6) did not conduct an independent investigation

of certain suspects or contact other witnesses defendant identified; (7) did not

request voir dire of a juror who was seen sleeping during trial; (8) failed to

consult a DNA expert to test the results of the State's expert; and (9) did not

object to the trial court's instructions.

On August 1, 2018, the PCR court heard oral argument and placed an oral

decision on the record. The judge found that defendant was barred from raising

many of the issues presented in his petition because they should have been raised

on direct appeal. The judge further found that defendant failed to present a

prima facie case of ineffective assistance of counsel.

The judge found that defendant had not established that his trial attorney

was deficient in his handling of the case. The judge also found that defendant

failed to show he was prejudiced by any of the attorney's claimed errors. The

judge noted that at trial, the State had presented a strong case which established

that defendant committed the offenses for which he was found guilty. The judge

entered an order dated August 1, 2018, denying PCR. This appeal followed.

On appeal, defendant's appellate PCR counsel argues:

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 THIS COURT SHOULD REVERSE THE TRIAL
COURT'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF
WITHOUT AN EVIDENTIARY HEARING
BECAUSE DEFENDANT RAISED A PRIMA FACIE
CLAIM OF INEFFECTIVE ASSISTANCE OF
COUNSEL THROUGH HIS ALLEGATIONS THAT
HIS TRIAL COUNSEL FAILED TO CONTEST THE
STATE'S EVIDENCE AND IMPROPERLY
RELIEVED THE STATE OF ITS BURDEN TO
PROVE HIS GUILT BEYOND A REASONABLE
DOUBT.

Defendant has filed a pro se supplemental brief. He argues:

PCR COUNSEL WAS INEFFECIVE FOR FAILING
TO CONDUCT AN INDEPENDENT
INVESTIGATION OF THE LEGAL CLAIMS
RAISED IN MY PETITION FOR POST
CONVICTION RELIEF IN ACCORDANCE WITH
THE [PRINCIPLES] ESTABLSIHED IN STATE [v.]
RUE, [175 N.J. 1] (2002); [R.] 3:22-1.

III.

As noted, defendant argues that the PCR court erred by failing to conduct

an evidentiary hearing on his petition. He contends he presented a prima facie

case of ineffective assistance of counsel. We disagree.

An evidentiary hearing is only required on a PCR petition when the

defendant has established a prima facie case in support of PCR, the court has

determined there are material issues of disputed fact that cannot be resolved

based on the existing record, and the court finds an evidentiary hearing

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necessary to resolve the claims presented. State v. Porter, 216 N.J. 343, 354

(2013) (citing R. 3:22-10(b)). "To establish a prima facie case, defendant must

demonstrate a reasonable likelihood that his or her claim, viewing the facts

alleged in the light most favorable to the defendant, will ultimately succeed on

the merits." R. 3:22-10(b).

To prevail on a claim of ineffective assistance of counsel, a defendant

must show by a preponderance of the evidence that: (1) counsel's performance

was deficient; and (2) the deficient performance prejudiced the defendant. See

State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the two-prong test from

Strickland v. Washington, 466 U.S. 668, 687 (1984) for proving ineffective

assistance of counsel). The "mere raising of a claim of [ineffective assistance

of counsel] does not entitle the defendant to an evidentiary hearing." State v.

Peoples, 446 N.J. Super. 245, 254 (App. Div. 2016). A court should not grant

an evidentiary hearing if "defendant's allegations are too vague, conclusory, or

speculative." R. 3:22-10(e)(2).

To satisfy the first prong of the Strickland test, a defendant must overcome

a "strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Strickland, 466 U.S. at 689. A deficient

performance means that "counsel made errors so serious that counsel was not

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functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Id. at 687.

Furthermore, to establish the prejudice prong, the defendant must

establish "that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome of the matter." Id. at 694.

However, in order to establish a prima facie claim, a defendant "must do

more than make bald assertions he was denied the effective assistance of

counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The

defendant "must allege facts sufficient to demonstrate counsel's alleged

substandard performance." Ibid. Moreover, when a defendant claims his trial

attorney did not adequately investigate the case, "he must assert the facts an

investigation would have revealed, supported by affidavits or certifications

based upon the personal knowledge of the affiant or the person making the

certification." Ibid. (citing R. 1:6-6).

On appeal, defendant argues that his trial attorney was deficient because

he failed to perform an independent investigation to locate certain unnamed

"suspects." He contends his attorney "did nothing" to contest the State's DNA

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evidence. He also contends his attorney's lack of effort left him with two choices

– either plead guilty to a crime he allegedly did not commit, or go to trial with

an attorney who "refused to do anything to contest the State's evidence."

As stated previously, defendant claims his trial attorney failed to conduct

an adequate investigation of other "suspects" or persons who could have

provided testimony exonerating him. However, he did not identify those

persons, nor did he provide the PCR court with any affidavits or certifications

from these individuals, based upon their personal knowledge, setting forth their

proposed testimony.

Defendant also claims his trial attorney was deficient because he failed to

challenge the State's DNA evidence. However, he did not provide the PCR court

with an affidavit or certification from a qualified DNA expert, setting forth an

opinion with the basis upon which the State's DNA evidence could have been

challenged.

Defendant also alleges that his trial attorney was deficient because he

failed to provide him with discovery. He claims that without such information,

he was not able to make an informed decision regarding the State's plea offer.

The PCR court found, however, that record of the pre-trial conference on

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December 17, 2012, refuted defendant's claims. The record supports that

finding.

At the pre-trial conference, the judge noted that defendant had been

charged with various offenses in fifteen counts. Defendant's attorney told the

judge that he had reviewed the discovery with defendant, and that he had

discussed the State's plea offer with defendant. The record shows that under the

State's plea offer, defendant would plead guilty to felony murder and the State

would recommend a twenty-five-year prison term, with an eighty-five percent

period of parole ineligibility, pursuant to NERA.

The prosecutor briefly summarized the facts of the case. He said that at

trial, the State intended to prove that defendant and two unnamed persons went

to the victim's house. The prosecutor said defendant and the other persons tried

to get in the front door, but they were "stymied." According to the prosecutor,

defendant and the others entered the house through the back door and surprised

the victim while he was in the shower. They shot and killed the victim and fled

in an automobile. The prosecutor said the State's evidence included the weapons

used in the incident, DNA evidence of defendant and the victim, and witness

testimony.

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 The judge then questioned defendant on the record. The judge told

defendant he faced serious charges including murder, felony murder, and armed

robbery. The judge explained that if convicted of felony murder, defendant

could be sentenced to life imprisonment, with a lengthy period of parole

ineligibility. The judge also told defendant that if he were convicted of other

offenses, additional sentences could be imposed, which could be consecutive.

The judge asked defendant if he understood what he had told him.

Defendant said, "Yes." Defendant stated that he wanted to reject the State's

plea offer and proceed to trial. The judge asked defendant if he was sure he

wanted to "turn down [twenty-five years]." Defendant replied, "Yes."

Thus, the record establishes that defendant was provided with the

discovery and that trial counsel had advised defendant concerning the State's

plea offer. Defendant told the judge he wanted to reject the offer. He did not

have any questions, or suggest he had not been adequately counseled regarding

the plea offer.

Defendant also claims that his attorney failed to discuss trial strategy with

him. However, defendant has not explained the strategies he believes counsel

should have discussed with him, or how the alleged lack of these discussions

prejudiced his defense. As we stated previously, defendant "must do more than

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make bald assertions that he was denied the effective assistance of counsel."

Ibid.

We therefore conclude that the record supports the PCR court's finding

that defendant failed to establish that his attorney's performance was deficient.

The record also supports the court's determination that defendant failed to show

he was prejudiced by counsel's alleged deficiencies. As the PCR court found,

the State presented strong evidence at trial, which supported the jury's verd ict.

Assuming that trial counsel's handling of the matter was deficient in some

respects, defendant failed to show the result here probably would have been

different, but for those alleged deficiencies.

We also conclude that because defendant failed to present a prima facie

claim of ineffective assistance of counsel, the PCR court correctly determined

that defendant was not entitled to an evidentiary hearing on his petition.

IV.

As noted, in his pro se supplemental brief, defendant contends he was

denied the effective assistance of PCR counsel because counsel failed to conduct

an independent investigation of the claims raised in his petition. He claims he

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asked his attorney to consult a DNA expert to examine the DNA evidence and

requested counsel to file a motion for post-conviction DNA testing. He also

disputes the State's evidence that a sweatshirt was found in his car with

bloodstains on it.

In addition, defendant asserts that PCR counsel failed to investigate

whether his trial attorney advised him of his sentencing exposure when the State

made its plea offer. He claims the plea offer was "actually" an offer of twenty-

five years to life, instead of an offer of twenty-five years with an eighty-five

percent period of parole ineligibility. He alleges he relied upon his trial attorney

to advise him properly during the trial and pre-trial plea discussions.

Defendant claims that at the pre-trial conference, the trial judge

"attempted" to explain his sentencing exposure. He asserts, however, that this

was his attorney's responsibility. He states that his trial attorney did not fully

explain the plea offer to him and he did not "fully understand" the State's offer.

He asserts that he "naively" rejected the State's plea offer because his attorney

did not "fully" explain it to him.

Defendant also claims his trial attorney was ineffective because he

conducted plea negotiations before the court ruled on his pre-trial motions. He

contends plea negotiations should be conducted after the court decides the pre-

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trial motions so that he could be in a better position to determine whether to

accept the plea offer or proceed to trial.

We are convinced that defendant's supplemental arguments lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We note,

however, that defendant has not shown that PCR counsel was deficient in

handling the petition, or that the matter would have been resolved differently if

PCR counsel had conducted a further investigation of defendant's claims or

consulted with a DNA expert.

Defendant did not provide any certification or affidavit explaining what a

further investigation would have revealed. He failed to establish that the result

of a PCR proceeding would have been different if PCR counsel had conducted

a further investigation.

Moreover, as noted previously, the PCR court addressed defendant's claim

that his trial counsel failed to advise him adequately regarding the State's plea

offer, and correctly determined that defendant failed to establish that his

attorney's advice regarding the plea was deficient. The contention that PCR

counsel was deficient in handling that issue is entirely without merit.

Defendant's other claims that he was denied the effective assistance of PCR

counsel are unsupported by the record.

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Affirmed.

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