                        NOT FOR PUBLICATION WITHOUT THE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 – Remanded February 23, 2017
              Resubmitted August 24, 2017 - Decided August 29, 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 briefs).

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

PER CURIAM
    This post-conviction relief (PCR) matter returns to us

following remand proceedings directed by our previous opinion,

State v. Dixon, No. A-0418-15 (App. Div. Feb. 23, 2017).    For

the reasons that follow, we remand for an evidentiary hearing.

                               I

    This matter was previously remanded for the reasons set

forth in our opinion, which need not be repeated at length, but

for the following essential facts.   Following a bench trial,

defendant was found guilty 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

resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2); fourth-

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

false imprisonment, N.J.S.A. 2C:13-3.    Ultimately, defendant was

sentenced to an aggregate twenty-year term of imprisonment.

    Briefly, during the trial, defendant did not dispute he

entered the victim's home to commit a burglary.    In a statement

provided to the police, defendant stated when he entered the

victim's home, the victim was descending the stairs.   Startled

by defendant's presence, the victim started to run upstairs but

slipped and fell down the stairs.    While the victim lay injured

on the floor, defendant took the victim's wallet.    Defendant was

apprehended by the police shortly thereafter.
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    The victim had no recollection of the incident.    However,

the emergency room physician who treated the victim testified he

sustained blunt force trauma to the face, which caused multiple

facial fractures.   The doctor opined the injury was most likely

caused by a "fisting" of the face and not by the fall.     The

trial court found the physician's testimony credible and,

because it established defendant injured the victim during the

theft, determined the robbery and burglary convictions were

properly graded as second-degree crimes.   See N.J.S.A. 2C:15-

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

    Significantly, before trial, the State tendered an offer to

defendant that were he to plead guilty to third-degree burglary,

N.J.S.A. 2C:18-2, the State would recommend a ten-year term of

imprisonment and dismiss the remaining charges.   In his PCR

petition, defendant claimed his attorney discouraged him from

accepting this offer, advising the State had no evidence he

assaulted the victim because the victim could not recollect the

incident.   Relying on his attorney's advice, defendant spurned

the plea offer and went to trial.

    Defendant contends counsel was ineffective for providing

this advice.   Although the victim could not recall what

transpired during the incident and, thus, could not testify he

was struck by defendant, defendant claims his attorney knew of
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the physician's opinion regarding the cause of injury, but

failed to advise of the physician's potentially damaging

testimony.   As a result, he argues he was not properly informed

of the consequences of accepting or rejecting the plea offer.

    Because the PCR court did not decide whether counsel had

been ineffective in this respect, we remanded this matter for

the PCR court to address this particular allegation.   On remand,

the court found defense counsel had not been ineffective.     The

PCR court's principal reasons were as follows:

         [A]lthough the parties had the medical
         discovery, they did not have the benefit of
         the   testimony   of   the   emergency   room
         physician. . . . So, I don't know how that
         the defense attorney could consider the
         physician's testimony. . . . [But] the
         medical records indicate what the injuries
         were and – opine as to the fact that it was
         from a – a blow from the defendant. . . .

         And it appears defense counsel thought he
         had the opportunity to secure a third-degree
         conviction of burglary.    And you have here
         where the victim has no memory of what
         happened. There's a lack of evidence. The
         medical doctor conceded the injuries could
         have been received from falling down the
         stairs, which is reasonable doubt. . . .

         And all the indications are that [defense
         counsel] gave considered advice that because
         the victim had no memory, the defendant
         basically said he had nothing to do with him
         falling down the stairs and receiving the
         injury, lack of evidence, keystone for
         finding   somebody  not   guilty,  and  also
         reasonable doubt as to how the injuries
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                                                           A-0418-15T1
         . . . were sustained by the victim. Defense
         – defense counsel had a reasonable shot at
         prevailing.

                                II

    We again set forth the applicable law, recited in our

previous opinion, when a defendant asserts counsel provided

ineffective assistance during the plea process.   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).

    During plea bargaining, "a defendant has the right to make

a reasonably informed decision whether to accept a plea offer."

United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992); 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).


                                5
                                                           A-0418-15T1
    "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).   To establish

prejudice, 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 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, it is defendant's contention counsel's advice led to

his rejecting a plea offer that would have been accepted and

would have been less severe than the sentenced imposed after

trial.   We make the following observations about the PCR court's

conclusion counsel was not ineffective, a decision made without

the benefit of an evidentiary hearing.

    First, there is no evidence from the record supplied

showing defendant was aware of the content of the medical

discovery.   His petition would suggest he was not.

    Second, while the defense attorney may not have known the

exact testimony the doctor would have provided, if the medical

records revealed it was the doctor's opinion the victim's

injuries were caused by a blow, the attorney knew or should have

known the doctor might testify consistently with the content of
                                6
                                                            A-0418-15T1
those records.1   If the attorney then told defendant there was no

evidence he assaulted the victim, that raises the question

whether counsel was ineffective if he advised defendant to

reject the plea offer.

     Third, as for the PCR court's comment the doctor conceded

the injuries could have occurred as a result of the victim

falling down the stairs, we question the relevance of this

point.   What is material is the discovery that existed at the

time the State made its plea offer, and whether plea counsel

properly evaluated that discovery and advised defendant of the

risks and benefits of going to trial, so defendant could make an

informed decision whether to accept or reject the plea offer.

Moreover, the court's reference to the doctor's testimony is out

of context; for the sake of completeness we set forth the

doctor's opinion on what caused the victim's injuries.

     The doctor testified blunt force trauma can be caused by

"anything" but, in this matter, the victim's facial fractures

were "most likely" caused by being "fisted," because there was a

depression in one of the bones discovered on a MRI of the

victim's face.    She did state one could sustain a similar injury

as the result of a fall, but "[i]t would have to be a very

1
     We have not been supplied with a copy of the medical
discovery, but the State does not dispute the discovery revealed
this was the doctor's opinion.
                               7
                                                          A-0418-15T1
focused fall, somebody was intentionally trying to hit that

area."   The doctor also testified it was "possible" to sustain

the same type of injury if one fell and hit his or her face

against the edge of a stair, but she was not questioned whether

it was "probable."

    Where a defendant has presented a prima facie claim of

ineffective assistance of counsel and the asserted facts in

support thereof are outside the record, an evidentiary hearing

is required.   See State v. Preciose, 129 N.J. 451, 462 (1992).

We are satisfied an adequate prima facie showing was made to

mandate an evidentiary hearing in order to afford defendant the

opportunity to demonstrate to the PCR court a favorable plea

offer was made, the advice his counsel gave respecting his

sentencing exposure upon conviction at trial was seriously

deficient because there was a substantial disparity between the

advice and the actual exposure, and defendant would and could

have entered a guilty plea in accordance with the plea offer had

he been correctly advised.   Accordingly, we remand for an

evidentiary hearing.

    Remanded for further proceedings consistent with this

opinion.




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