STATE OF NEW JERSEY VS. JAMES D. DIXON (10-03-0358, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-0418-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES D. DIXON,

Defendant-Appellant.

______________________________________

Submitted February 2, 2017 – Decided February 23, 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 brief).

Andrew C. Carey, Middlesex County
Prosecutor, attorney for respondent (Joie
Piderit, Assistant Prosecutor, of counsel
and on the brief).

PER CURIAM
 Defendant appeals from the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing. For the

reasons that follow, we remand for further proceedings

consistent with this opinion.

I

Following a bench trial, defendant was convicted 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 false imprisonment, N.J.S.A. 2C:13-

3; fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-

2(a)(1)(3); and fourth-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(d). The court granted the State's motion to

sentence defendant to an extended term, see N.J.S.A. 2C:44-3,

and imposed an aggregate term of twenty-five years in prison.

Defendant filed a direct appeal from his convictions and

sentence. We affirmed his convictions, but remanded for

resentencing because defendant was sentenced to a five-year

consecutive term for third-degree criminal restraint, when the

conviction on that count was for the lesser-included offense of

false imprisonment, a disorderly persons offense. See State v.

Dixon, No. A-1798-10 (App. Div. Jan. 25, 2013) (slip op. at 40-

42). The Supreme Court denied defendant's petition for

certification. State v. Dixon, 215 N.J. 486 (2013). On remand,
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defendant was sentenced to an aggregate term of twenty years in

prison.

To put the issues in context, we briefly recount the

pertinent evidence adduced at trial. There was uncontroverted

evidence defendant entered the home of the victim, J.R., to

commit a burglary.1 In a statement to the police, defendant

noted J.R. was coming down the stairs when he first saw

defendant. J.R. attempted to run upstairs but slipped and fell,

hitting and injuring his face against the stairs. Defendant

admitted he took J.R.'s wallet while J.R. lay on the stairs, but

denied assaulting him at any time. A neighbor who saw defendant

enter the home and suspected a crime was underway contacted the

police, who arrived minutes later. The police apprehended

defendant while still inside J.R.'s home.

The victim sustained trauma to the brain and facial

fractures; he has no memory of the incident. A physician who

treated him in the emergency room testified his injuries were

caused by blunt force trauma, most likely caused by someone

"fisting" J.R in the head or face, as indicated by a depression

in his face over one of the fractures. The doctor noted the

depression "cannot come from falling. That has to come from

. . . somebody hitting you."

1
We use initials to protect the victim's identity.
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 In making its findings of fact, the court rejected

defendant's claim he had not assaulted J.R., determining the

medical testimony established he purposely or knowingly caused

J.R. bodily injury. Because defendant injured J.R. with this

specific intent, the court noted the robbery and burglary

convictions were properly graded as second-degree crimes. See

N.J.S.A. 2C:15-1; N.J.S.A. 2C:18-2(b)(1).

In June 2014, defendant filed a PCR petition and brief on

his own behalf. In those pleadings, defendant claimed trial

counsel's performance was deficient in a number of respects, but

only one allegation is pertinent to the issues on appeal. That

particular allegation is trial counsel advised defendant to

reject a plea offer in which he would serve only a ten-year term

of imprisonment. Defendant contends counsel advised that,

because J.R. cannot recall the events in his home, the State

will not be able to prove defendant assaulted, threatened, or

put J.R. in fear of immediate bodily injury. Thus, the State

will be unable to show all of the elements necessary to

establish robbery or second-degree burglary. Accordingly,

counsel reasoned, if he went to trial, at worst defendant would

be convicted of a third-degree crime.

Defendant made two additional claims in his petition

pertinent to the issues on appeal. First, he asserted the trial
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judge should not have presided over the bench trial, because he

had heard and decided a motion to suppress defendant's statement

to the police. During the suppression motion, the judge learned

of incriminating statements defendant made while in police

custody. In addition, defendant was concerned the judge was

aware he had eleven prior convictions, many of which resulted in

prison terms.

Second, defendant also claimed in his petition the judge

erred for failing to "to charge himself on theft, with respect

to the alleged robbery." Defendant was apparently under the

impression a trial judge must charge himself or herself at the

end of a bench trial, just as a court would charge a jury

following a jury trial.

The PCR court denied defendant's petition without an

evidentiary hearing. In its decision, the court did not address

any of the above three contentions.

II

On appeal, defendant raises the following points for our

consideration:

POINT I – THIS MATTER MUST BE REMANDED FOR
AN EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
COUNSEL'S INEFFECTIVENESS FOR MISADVISING
HIM REGARDING CAUSATION OF THE ASSAULT,
THEREBY PROMPTING DEFENDANT TO REJECT THE
STATE'S PLEA OFFER.
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 POINT II – THIS MATTER MUST BE REMANDED FOR
A NEW PCR HEARING BECAUSE PCR COUNSEL FAILED
TO ADVANCE ALL OF THE ISSUES DEFENDANT
RAISED IN HIS PETITION.

POINT III – THIS MATTER MUST BE REMANDED FOR
FINDINGS OF FACT AND CONCLUSIONS OF LAW
REGARDING DEFENDANT'S CLAIMS NOT ADDRESSED
BY THE PCR COURT.

Specifically, defendant asserts, as he did before the PCR

court, trial counsel was ineffective because he recommended

defendant spurn the State's plea offer and urged defendant to go

to trial. Defendant also complains PCR counsel failed to argue

the trial judge erred for presiding over the bench trial and for

failing to charge himself on the issue of theft.

We readily dispose of defendant's argument the trial judge

should not have presided over the trial because he heard and

decided the motion to suppress and was aware of defendant's

criminal history. First, this argument could and should have

been asserted on direct appeal; therefore, it is now barred.

See R. 3:22-4; State v. Afanador, 151 N.J. 41, 50 (1997).

Second, even if this argument were not precluded under the

aforementioned authority, as we observed in State v. Medina:

[E]xposure to inadmissible evidence in the
course of pretrial proceedings generally
does not require disqualification of the
judge even where the judge is to serve as
the factfinder. "A judge sitting as the
factfinder is certainly capable of sorting
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 through admissible and inadmissible evidence
without resultant detriment to the decision-
making process . . . ." State v. Kern, 325
N.J. Super. 435, 444 (App. Div. 1999).
Trained judges have the ability "to exclude
from their consideration irrelevant or
improper evidence and materials which have
come to their attention." State v. Kunz, 55
N.J. 128, 145 (1969).

[State v. Medina, 439 N.J. Super. 108, 130
(App. Div. 2002).]

Third, during argument on defendant's application to waive

his right to a jury trial, defendant stated he did not have any

objection to this particular judge presiding over the bench

trial, and even commented, "Your Honor, I honestly believe that

you would be fair." The contention the trial judge erred by

failing to charge himself is utterly without merit and does not

warrant discussion in a written opinion. R. 2:11-3(e)(2).

We turn next to defendant's claim trial counsel was

ineffective because he recommended defendant spurn the plea

offer and go to trial. 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).

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 There is no question "plea bargaining is a critical stage

of the criminal proceeding at which the right of representation

attaches." State v. Taccetta, 351 N.J. Super. 196, 200 (App.

Div.), certif. denied, 174 N.J. 544 (2002); see also State v.

Powell, 294 N.J. Super. 557, 564 (App. Div. 1996); United States

v. Day, 969 F.2d 39, 43 (3d Cir. 1992). During this stage, "a

defendant has the right to make a reasonably informed decision

whether to accept a plea offer." Day, supra, 969 F.2d at 43;

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).

"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). In Lafler, defendant

contended ineffective advice from counsel caused him to reject a

plea offer and to go to trial instead. The Court held to

establish prejudice in this context, 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
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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, the PCR judge overlooked deciding defendant's claim

counsel was ineffective on the ground counsel informed defendant

the State would not be able to establish he assaulted or

threatened J.R., because of J.R.'s inability to recall how he

had been injured. Counsel assumed the State would not be able

to prove an element of burglary that would elevate this offense

to a second-degree crime, see N.J.S.A. 2C:18-2(b), or prove

robbery, see N.J.S.A. 2C:15-1(a)(1), but apparently failed to

consider the impact of the physician's testimony. During

colloquy between the PCR judge and counsel, the judge touched

upon but never decided this issue. Thus, we are constrained to

remand this matter to the PCR judge, so he can fully address and

decide this claim.

Accordingly, we remand this matter to the PCR judge so he

may supplement his findings as directed in this opinion. The

trial court shall have forty-five days to issue a supplemental

opinion. The parties shall have ten days from the day they

receive the supplemental opinion to file a letter brief, not to

exceed ten pages, on the PCR court's findings.

Remanded for further proceedings consistent with this

opinion. We retain jurisdiction.
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