NOT FOR PUBLICATION WITHOUT THE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-1249-16T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DONNELL GIDEON,
Defendant-Respondent.
________________________________
Argued April 26, 2017 – Decided June 6, 2017
Before Judges Alvarez and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
05-10-4097.
Patrick D. Isbill, Assistant Prosecutor,
argued the cause for appellant (Mary Eva
Colalillo, Camden County Prosecutor,
attorney; Mr. Isbill, of counsel and on the
brief).
Alan Dexter Bowman argued the cause for
respondent.
PER CURIAM
Appellant State of New Jersey appeals from an October 11,
2016 order granting post-conviction relief (PCR) to defendant
Donnell Gideon. Upon review of the decision in light of
controlling decisions of law, we are constrained to remand for
further proceedings.
The factual background and procedural history relating to
defendant's arrest and charges are fully set forth in this court's
opinion remanding the matter for an evidentiary hearing. State
v. Gideon, No. A-0293-13 (App. Div. February 10, 2016).
On September 1, 2004, defendant gave a statement to an
investigator at the Camden County Police Department regarding a
July 27, 2004 shooting. In his statement, defendant explained his
"workers" sold marijuana, supplied by E.J.,1 in Camden's Yorkship
Square area. Defendant learned T.A. had been robbing his "workers"
at gunpoint. As a result of these robberies, defendant sought out
T.A. on July 27, 2004, and engaged him in a fist fight. After the
fight was broken up, defendant returned home.
Immediately after returning home, defendant called E.J. to
explain what transpired. Soon after, E.J. arrived at defendant's
home and told him to "suit up" and "get your black on," meaning
change into black clothing. Defendant "suited up" knowing they
were going to "handle the situation from earlier." Defendant then
got into a car with E.J. and another individual and drove looking
for T.A. The three individuals thought they saw T.A. standing on
1
We utilized initials in our prior opinion for purpose of
confidentiality.
2 A-1249-16T3
a corner near the Yorkship Square area. They parked the car and
exited, E.J armed with an AK-47 rifle and the other individual
armed with a Mossberg shotgun. The three individuals then walked
down an alleyway where defendant asked E.J. "what's up?" E.J.
responded, "just look up." At that moment, E.J. and the other
individual opened fire on a group of people standing on the corner.
Defendant later learned three people were injured and one person
was killed in the shooting.
At trial, defendant asserted the investigator coached him on
what to say during his statement. Defendant then proceeded to
testify to a different version of what he was doing the night of
the shooting. Defendant admitted to fighting T.A. earlier in the
day, but while defendant was walking home from the fight, he ran
into his mother. Defendant's mother drove defendant to find T.A.
in order for the two to shake hands and "peace up." Defendant
then got back into the car with his mother who dropped him off at
home before she went to work. After being dropped off, defendant
contended he never left his home the rest of the night. On cross-
examination, defendant stated his girlfriend was with him in the
home the night of the shooting.
After trial, a jury convicted defendant of aggravated
manslaughter, attempted murder, aggravated assault, conspiracy to
commit murder, possession of a weapon for an unlawful purpose, and
3 A-1249-16T3
hindering apprehension or prosecution. Defendant was sentenced
to a twenty-seven-year prison term subject to the eighty-five
percent parole ineligibility provision under N.J.S.A. 2C:43-
7.2(a).
Defendant filed a direct appeal. We affirmed the conviction
and the sentence. State v. Donnell Gideon, No. A-2132-07 (App.
Div. October 18, 2010). Defendant filed a petition for
certification, which was denied. State v. Gideon, 205 N.J. 273
(2011).
On April 27, 2012, defendant filed a pro se petition for PCR.
Argument took place before the same judge who presided over the
trial. In a written opinion, the judge denied defendant's PCR
without an evidentiary hearing.
Defendant appealed. This court reversed in holding defendant
asserted sufficient facts to present a prima facie claim of
ineffective assistance of counsel, based on defendant's assertion
that his trial counsel never investigated his alibi witnesses.
Gideon, supra, A-0293-13.
On September 13, 2016, pursuant to our remand order, the same
PCR judge presided over an evidentiary hearing. At the hearing,
defendant's alibi witnesses, his mother Bianca Gideon-Nichols, and
his girlfriend, Sahleeha Bey, testified. Defendant's trial
counsel also testified. Both Gideon-Nichols and Bey testified
4 A-1249-16T3
that defendant was in their presence during the night of the
original crime, and later was with a man named "[T.A.]" Both
witnesses also testified that they volunteered to be an alibi
witness during the trial, and that defendant's counsel agreed.
During the hearing, defendant's trial counsel (counsel)
testified his common practice was to speak with a potential alibi
witness once introduced. While counsel could not recall being
approached by Gideon-Nichols or Bey, he concluded that neither
offered to be alibi witnesses because he never investigated their
claims as to defendant's whereabouts.
On October 11, 2016, the judge issued an order granting
defendant's PCR petition and vacating the judgment of conviction
despite finding that Gideon-Nichols' and Bey's testimony was not
credible. The judge noted numerous inconsistencies between their
testimony with evidence presented during the trial, and found
their testimony would not be consistent with defendant's statement
to police and his trial testimony. The judge concluded that
because Gideon-Nichols and Bey were not credible, he could not
find that they approached defendant's counsel and presented
themselves as an alibi witness prior to trial.
On the other hand, the judge found counsel was credible.
Nonetheless, the judge held that counsel rendered effective
assistance of counsel based upon defendant's trial testimony, in
5 A-1249-16T3
counsel's presence, where he stated Bey was an alibi witness. At
the evidentiary hearing, counsel acknowledged that, after the
testimony, he and defendant did not discuss the prospect of Bey
serving as an alibi witness.
The judge held, "after [defendant] revealed a potential
alibi witness in his trial testimony, [defendant's counsel] had a
continuing duty to his client to investigate this potential alibi
witness. He did not do so." Since counsel did not investigate
the potential alibi witness and the jury did not have the
opportunity to hear and determine the credibility of Gideon-
Nichols and Bey, the judge concluded that defendant received
ineffective assistance of counsel. Without making further
findings, the judge held the PCR should be granted. This appeal
followed.
The State raises the following point on appeal:
POINT I
THE PCR COURT ERRED IN GRANTING DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF AS ITS
RULING NEITHER ADDRESSES NOR SATISFIES THE
PREJUDICE PRONG REQUIRED PURSUANT TO
STRICKLAND[2] IN ORDER TO AFFIRMATIVELY FIND
INEFFECTIVE ASSISTANCE OF COUNSEL. [RAISED
BELOW.]
2
Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.
2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984).
6 A-1249-16T3
"Post-conviction relief is New Jersey's analogue to the
federal writ of habeas corpus." State v. Preciose, 129 N.J. 451,
459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled
to post-conviction relief if there was a "[s]ubstantial denial in
the conviction proceedings of defendant's rights under the
Constitution of the United States or the Constitution or laws of
the State of New Jersey[.]" "A petitioner must establish the
right to such relief by a preponderance of the credible evidence."
Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain
that burden, specific facts" that "provide the court with an
adequate basis on which to rest its decision[]" must be
articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel
are well suited for post-conviction review. See R. 3:22-4(a)(2);
Preciose, supra, 129 N.J. at 460. In determining whether a
defendant is entitled to relief on the basis of ineffective
assistance of counsel, New Jersey courts apply the two-prong test
articulated by the United States Supreme Court in Strickland,
supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693,
and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct.
2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra,
129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
7 A-1249-16T3
Under the first prong of the Strickland test, a "defendant
must show that [defense] counsel's performance was deficient."
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693. Under the second prong, a defendant must demonstrate
"a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Our review of an order granting or denying PCR contains
consideration of mixed questions of law and fact. State v. Harris,
181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S.
Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a PCR court's
factual findings and will uphold those findings that are "supported
by sufficient credible evidence in the record." State v. Nash,
212 N.J. 518, 540 (2013). However, a PCR court's interpretations
of law are provided no deference and are reviewed de novo. Id.
at 540-41.
On appeal, the State concedes that defendant's counsel was
deficient in failing to investigate the potential alibi witness
but argues that the judge failed to analyze the second prong under
the Strickland standard, namely whether defendant demonstrated "a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
8 A-1249-16T3
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.
2d at 698. We agree.
Unlike the judge's cogent analysis regarding the first prong
of Strickland, we conclude that the requisite analysis relating
to the second prong of Strickland was not similarly employed. As
such, we are impelled to remand the matter for further findings
by the judge consonant with our decision. In reaching this
decision, we express no view as to the remand's outcome.
Reversed and remanded. We do not retain jurisdiction.
9 A-1249-16T3
STATE OF NEW JERSEY VS. DONNELL GIDEON(05-10-4097, CAMDEN COUNTY AND STATEWIDE)
Combined Opinion