                                NOT FOR PUBLICATION WITHOUT THE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-0349-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RENE M. JACKSON,

          Defendant-Appellant.


                   Submitted March 24, 2020 – Decided May 12, 2020

                   Before Judges Yannotti and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 14-04-0874.

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

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Matthew E.
                   Hanley, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from the August 3, 2018 order denying his petition for

post-conviction relief (PCR) after an evidentiary hearing. He contends trial

counsel was ineffective in advising defendant not to testify at trial and in failing

to fully inform him of the substance of a witness's statement, which defendant

states resulted in him rejecting a favorable plea offer. We affirm.

      We derive the facts from our prior decision in the direct appeal. State v.

Jackson, No. A-5462-14 (App. Div. Dec. 16, 2016).

      On the night of these events, defendant was playing dominos in the

basement of a residence with eight or nine other people. After defendant lost a

couple of games, he got angry with S.F.1 and started to punch him.

                   V.S. and J.S. stepped in and separated defendant
            from S.F. The witnesses gave differing accounts as to
            what happened next. S.F. testified that defendant
            threatened him, stated that he was going to shoot him,
            and left to go outside. V.S. and J.S. said that S.F. tried
            to attack defendant with broken bottles. They both
            testified that V.S. took defendant outside to break up
            the fight, and that S.F. followed them outside to
            continue the fight.

                   S.F. testified that it was around midnight when he
            left the basement and went outside. According to S.F.,
            defendant approached and pointed a gun at him. S.F.
            stated that V.S. struggled with defendant and disarmed


1
  We use initials to protect the confidentiality of individuals involved in this
matter.
                                                                            A-0349-18T3
                                         2
      him. . . . After the incident, defendant departed, and
      S.F. called the police.

            V.S. testified that S.F. had come outside holding
      a broken glass bottle and that defendant went to his car
      to retrieve a red steering wheel lock club to defend
      himself. . . .

            The police arrived . . . . [and] questioned S.F.,
      who identified defendant by name and showed the
      police defendant's car, which was parked near the
      house. Later that day, the police arrested defendant and
      towed his car.

            Thereafter, defendant provided a recorded
      statement to the police . . . . Defendant told the police
      he owned a registered Smith & Wesson, 9mm handgun,
      which he kept in the trunk of his car. The weapon and
      a gun magazine were found in the glove compartment
      of defendant's car.

      [Id., slip op. at 1-4.]

In addition, in the recorded statement,

            Defendant admitted he got into an altercation
      with S.F. while playing dominos, and that the dispute
      continued out on the street. Defendant denied that he
      pointed his handgun at S.F. He said that S.F. attacked
      him with a broken bottle, and he defended himself,
      using the lock club device from his steering wheel.

      [Id., slip op. at 4.]




                                                                  A-0349-18T3
                                 3
        Defendant was charged in an indictment with fourth-degree aggravated

assault, in violation of N.J.S.A. 2C:12-1(b)(4); and second-degree possession of

a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a).2

        During the trial, S.F. identified the gun found in defendant's car as the gun

defendant pointed at him on the night of these events. After the State played

defendant's recorded statement for the jury, it rested its case on January 15,

2015. The jury was instructed to return on January 21, 2015.

        The day after the State rested, Detective Michael Gilmore of the Essex

County Prosecutor's Office spoke with Se.F., who was listed as a defense

witness. Se.F. told Gilmore that "defendant had asked him to testify falsely that

he, S.F., and defendant had gone to a gun firing range earlier during the day [of

the offenses]." Jackson, slip op. at 4. This testimony would establish that S.F.

knew defendant owned a handgun before the altercation.             Se.F. also stated

"defendant told him [that] he went back to his car to get his gun so that he could

confront S.F." Id., slip op. at 5.

        When the jury reconvened, the assistant prosecutor asked to reopen the

State's case so he could call Se.F. as a witness and question him about the

information he had given Gilmore. The prosecutor argued that defendant and


2
    An additional count was dismissed prior to trial.
                                                                             A-0349-18T3
                                          4
Se.F. knew the statement about the gun range was false, noting Se.F.'s statement

that defendant had phoned him several times "to that same effect." Ibid.

                  The [trial] judge noted that after obtaining
            [Se.F.'s] recorded statement, the State had tendered a
            plea offer to defendant and his attorney. The assistant
            prosecutor noted that if defendant pled to fourth-degree
            knowingly pointing a gun at S.F., as charged in the
            indictment, the State would recommend a sentence of
            eighteen months of incarceration, with an eighteen-
            month period of parole ineligibility. Defense counsel
            told the judge he had discussed the offer with
            defendant, and defendant had rejected it. The judge
            questioned defendant and he confirmed that he had
            rejected the plea offer.

            [Id., slip op. at 6.]

      Se.F. testified outside the presence of the jury, confirming he had given

Gilmore an oral statement and the transcription of the statement was accurate.

After Se.F. stated he would testify "consistently" with his prior oral statement,

the judge granted the State's motion to reopen the case. Id., slip op. at 7.

      Before the jury, Se.F. stated he had known defendant for about nine years

and they had been "close friend[s]" for more than five years. Ibid. He denied

that on the evening of the altercation with S.F., defendant told him that "he had

gone to his car to get a gun." Ibid. Se.F. further testified that defendant called

him on January 15, 2015 asking him to testify for the defense but "did not tell

him what to say." Ibid.

                                                                           A-0349-18T3
                                        5
      Se.F. was questioned about his statement to Gilmore in which Se.F. stated

defendant had called and "basically told me what to say and how to testify in his

defense stating that when asked to say, yes, we had been to the range . . . which

is not true." Id., slip op. at 7-8. Se.F. conceded he was not at the firing range

on the date in question, but defendant wanted him to testify to that effect. He

confirmed that the statement he gave to Gilmore was true. Id., slip op. at 8.

      After the defense rested its case, the trial court confirmed with defense

counsel that defendant was not going to testify. Defendant agreed in the court's

questioning of him that he made the decision not to testify after speaking to

defense counsel and that he was not forced, coerced or pressured in any way to

make the decision.

      Defendant was convicted on both counts. His motion for a new trial was

denied. We affirmed his convictions. Id., slip op. at 1.

      After defendant filed his pro se PCR petition, assigned counsel presented

a supplemental brief. Pertinent to this appeal, defendant contended counsel was

ineffective in not permitting him to testify on his own behalf and in failing to

provide defendant with Se.F.'s entire statement during trial.

      The PCR court granted defendant's request for an evidentiary hearing,

limited "to determine whether trial counsel rendered ineffective assistance of


                                                                         A-0349-18T3
                                        6
counsel by advising [defendant] not to testify on his own behalf." At the

hearing, defendant and his trial counsel testified, along with the assistant

prosecutor who tried the case.

       In an August 3, 2018 written decision, the PCR court denied the petition.

After finding all of the witnesses to be credible, the court analyzed defendant's

arguments in light of the Strickland3 standard.

       In addressing defendant's assertion that trial counsel precluded him from

testifying, the court found defendant had not demonstrated trial counsel's

representation fell below the objective standard of reasonableness. The court

stated:

             [Defense counsel] testified that he would not prohibit a
             defendant from testifying at trial. [Defense counsel]
             believed that [defendant] would be charged with
             witness tampering if he chose to take the stand on his
             own behalf, and he properly advised his client
             regarding this understanding. The strategic decision of
             counsel to fully inform [defendant] of the perceived
             ramifications of testifying does not fall below the
             standard in Strickland.

       Furthermore, the PCR court stated,

             Even if trial counsel's performance had fallen below the
             objective standard of reasonableness, . . . [defendant]
             has the burden to show that but for counsel's
             unprofessional error, the results would have been

3
    Strickland v. Washington, 466 U.S. 668 (1984).
                                                                         A-0349-18T3
                                        7
            different. Here, [defendant] testified that he held the
            belief that his testimony could have impacted the jury,
            resulting in a different outcome. However, . . .
            [w]itnesses testified about the incident in this matter,
            including one witness who testified that [defendant]
            asked him to falsely testify on [defendant's] behalf.
            There is not a reasonable probability that the outcome
            would have been different had [defendant] testified.

      Defendant presents the following issues for our review:

            I.  THE   COURT    ERRED   IN   DENYING
            DEFENDANT'S     PETITION    FOR    POST-
            CONVICTION RELIEF SINCE TRIAL COUNSEL'S
            FAILURE IN ADVISING DEFENDANT NOT TO
            TESTIFY ON HIS OWN BEHALF RESULTED IN
            INEFFECTIVE ASSISTANCE OF COUNSEL

            II. TRIAL COUNSEL'S FAILURE TO ALLOW
            DEFENDANT TO BE FULLY AWARE OF [SE.F.'S]
            STATEMENT AND TO LISTEN TO IT RESULTED
            IN DEFENDANT'S DENIAL OF A FAVORABLE
            PLEA OFFER AND TRIAL COUNSEL WAS THUS
            INEFFECTIVE

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

satisfy a two-pronged test. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J.

42, 58 (1987).    A defendant must establish both that his or her counsel's

performance was deficient, and that the deficiency prejudiced him or her during

trial. Strickland, 466 U.S. at 687.

      The first prong of Strickland requires a defendant to establish "that

counsel's performance was deficient[,]" a showing that requires "errors so

                                                                         A-0349-18T3
                                       8
serious that counsel was not functioning as the 'counsel' guaranteed [to] the

defendant by the Sixth Amendment." Ibid. This entails determining "whether

counsel's conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result ." Id.

at 686. Importantly, it is defendant's burden to "overcome the presumption that,

under the circumstances, the challenged action 'might be considered sound trial

strategy.'" State v. Harris, 181 N.J. 391, 431 (2004) (quoting Strickland, 466

U.S. at 689). But, a mere failure of trial strategy is not grounds for a finding of

ineffectiveness. State v. Sheika, 337 N.J. Super. 228, 243 (App. Div. 2001)

(citing State v. Davis, 116 N.J. 341, 357 (1989)). Therefore, only mistakes that

amount to a "mockery of justice" cross the threshold of ineffectiveness. State

v. Bonet, 132 N.J. Super. 186, 191 (App. Div. 1975).

      Under the second prong, a defendant must demonstrate "that the deficient

performance prejudiced the defense[,]" a showing which requires that the errors

"were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable." Strickland, 466 U.S. at 687. A defendant must establish "a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different."           Fritz, 105 N.J. at 52 (quoting

Strickland, 466 U.S. at 694). A "reasonable probability" is one that is "sufficient


                                                                             A-0349-18T3
                                         9
to undermine confidence in the outcome." Ibid. (quoting Strickland, 466 U.S.

at 694). However, "[i]t is not enough for the defendant to show that the error or

errors had some conceivable effect on the outcome of the trial." Sheika, 337

N.J. Super. at 242.

      In our review of a PCR court's determination, we defer to the court's

factual findings, including credibility determinations, if they are supported by

"adequate, substantial and credible evidence." Harris, 181 N.J. at 415 (quoting

Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).

      Defendant argues his trial counsel was ineffective when he advised him

not to testify on his own behalf at trial. He contends that his testimony would

have only helped his case. We are unconvinced.

      The record is clear that defendant advised the trial court it was his

uncoerced, voluntary decision not to testify, that he discussed the decision with

trial counsel, and that he was satisfied with the services of his counsel. In

addition, counsel's advice to defendant to refrain from testifying was a rational

strategic decision. He would have been confronted with Se.F.'s contradictory

testimony and subjected to possible witness tampering charges.

      Defendant has not shown that trial counsel committed "errors so serious

that [he] was not functioning as the 'counsel' guaranteed [to] . . . defendant by


                                                                         A-0349-18T3
                                      10
the Sixth Amendment." Strickland, 466 U.S. at 687. Furthermore, defendant

has not established the outcome would have been any different had he testified.

To the contrary, as stated, his testimony might have led to the imposition of

additional charges.

      Defendant also asserts he was denied the effective assistance of counsel

because he was not sufficiently informed of the entirety of Se.F.'s statement

when defendant decided to reject a plea offer. Because the PCR court did not

specifically address this argument in its ruling, defendant requests we remand

for a consideration of his contention.

      A careful review of the record satisfies us that a remand is not warranted.

On January 21, 2015, when the State sought to reopen its case to present the

testimony of Se.F., the assistant prosecutor described to the court, while

defendant was present, the specifics of the statement obtained from Se.F.,

including defendant's request that Se.F. give false testimony.

      The prosecutor also placed a plea offer on the record. Defense counsel

advised the trial judge he had discussed the offer with defendant. The judge

stated to defendant directly: "You understand what this evidence will do to you;

right? . . . It's extremely prejudicial . . . ." The judge also explained to defendant

the exposure he faced if he did not accept the plea offer for a fourth-degree


                                                                              A-0349-18T3
                                         11
offense but was instead convicted on the second-degree offense. Defendant

stated he had discussed the plea offer with his attorney and he did not want to

accept it.

      The record reflects defendant was fully apprised of the damaging

testimony Se.F. would be giving to the jury. He confirmed to the judge he

understood the significance of rejecting the plea offer and he made the decision

after discussion with counsel. His argument he was not afforded the effective

assistance of counsel in considering and rejecting the plea offer is without merit.

      We are satisfied the PCR court's denial of the petition was supported by

the credible evidence in the record. Defendant did not demonstrate trial counsel

was ineffective under the Strickland-Fritz test.

      Affirmed.




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                                       12
