STATE OF NEW JERSEY v. TAQUAN JACKSON

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. TAQUAN JACKSON, Defendant–Appellant.

DOCKET NO. A–5707–11T3

-- December 11, 2013

Before Judges Messano and Hayden. Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

Defendant Taquan Jackson appeals from the April 26, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing.   After reviewing defendant's arguments in light of the record and applicable law, we affirm.

We discern the following facts from the record.   On four separate occasions in May and June 2005, defendant and two associates, Indrit Shehi and Jeremy Simpson, lured cab drivers to dark locations in Bergen County, robbed them, and punctured their tires.   Defendant was armed with an imitation gun that appeared to be a real firearm, Simpson was armed with a knife, and Shehi was armed with a BB gun.   They all concealed their faces to avoid identification and shared the stolen money after each robbery.

On July 8, 2005, Shehi and defendant agreed that defendant would steal a car in Passaic County to sell to a “chop shop.”   Shehi then called a Chinese restaurant to order food for delivery.   When the delivery driver arrived, defendant brandished an imitation firearm, threatened the driver, and stole his car.

On April 6, 2006, a Bergen County grand jury indicted defendant on a total of twenty counts, including four counts of first-degree robbery, N.J.S.A. 2C:15–1;  three counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39–4(a);  three counts of third-degree possession of a handgun without a permit, N.J.S.A. 2C:39–5(b);  three counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(d);  three counts of fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful uses, N.J.S.A. 2C:39–5(d);  and three counts of fourth-degree unlawful possession of an imitation firearm, N.J.S.A. 2C:39–4(e).

On November 8, 2005, a Passaic County grand jury indicted defendant for first-degree robbery, N.J.S.A. 2C:15–1;  first-degree carjacking, N.J.S.A. 2C:15–2(a)(2);  second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39–4(a);  third-degree possession of a handgun without a permit, N.J.S.A. 2C:39–5(b);  and third-degree theft, N.J.S.A. 2C:20–3 and N.J.S.A. 2C:20–2(b)(2)(b).

On April 26, 2007, defendant entered guilty pleas to four counts of first-degree robbery in Bergen County and first-degree carjacking in Passaic County.   As part of the plea agreement, the State agreed to dismiss all other charges and recommend a maximum of twenty years with an 85% parole bar pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. Defendant's plea colloquy established the basis for the crimes to which he pled guilty.

On July 20, 2007, defendant was sentenced to nineteen years imprisonment with an 85% parole bar on each of the five counts to which defendant pled guilty.   All sentences were to run concurrently.   The sentencing judge dismissed all remaining counts at the request of the State.

In determining defendant's sentence, the judge found the following aggravating factors:  “[t]he nature and circumstances of the offense,” the future risk of criminal involvement, “[t]he extent of the defendant's prior criminal record,” and the need to deter defendant and others.  N.J.S.A. 2C:44–1(a)(1), (3), (6), and (9).   The judge found the following mitigating factors:  “[t]he defendant has no history of prior delinquency or criminal activity,” incarceration would constitute an excessive hardship to the defendant and his family, and the defendant's conduct was that of a youthful offender “substantially influenced by another person more mature than the defendant.”   N.J.S.A. 2C:44–1(b)(7), (11), and (13).

Defendant did not file a direct appeal.   On July 31, 2011, defendant filed a pro se PCR petition in which he alleged the following:

POINT I:  DEFENDANT WAS DENIED DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE U.S. CONST.   AMEND.  VI & XIV AND THE N.J. CONST.   ART. 1, PARA. 10 WHEN HIS PLEA ATTORNEY:

A.  Failed to Perform Any Pre–Trial Investigation into Defendant's Case.

B. Failed to File a Pre–Trial Motion to Suppress Defendant's Statement.

C. Failed to File a Pre–Trial Motion to Dismiss the Defective Complaints Concerning the Carjacking and the Four Cab Driving Robberies.

D. Failed to File a Pre–Trial Motion to Dismiss the Carjacking Robbery When the Evidence was Insufficient.

E. Failed to File a Pre–Trial Motion to Dismiss the Indictment of the Four Cab Driving Robberies on the Ground of the Arresting Officer's Failure to Conduct Any Identification Procedure/Photo Array with the Alleged Victims of the Crimes.

F. Failed to File a Notice of Appeal on Behalf of Defendant.

G. Coerced Defendant into Pleading Guilty to a Carjacking Offense that was Unsupported by the Evidence.

On January 26, 2012, defendant's counsel filed a brief in support of defendant's PCR application and raised the following:

POINT I:  PETITIONER IS ENTITLED TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT MITIGATING FACTORS AT SENTENCING.

B. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO EFFECTIVELY ARGUE PETITIONER'S SENTENCE WAS DISPARATE WHEN COMPARED WITH HIS CODEFENDANTS.

C. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE AN APPEAL ON PETITIONER'S BEHALF.

D. ALL POINTS RAISED BY PETITIONER IN ANY AND ALL PRIOR SUBMISSIONS TO THE COURT ARE INCORPORATED BY REFERENCE INTO THIS BRIEF.

After hearing argument, Judge Eugene H. Austin, the PCR judge, who also presided at the plea hearing, concluded that defendant's counsel was not ineffective and no hearing was warranted.   He found no unfair disparity between defendant's sentence and that of one of his co-defendant as defendant's culpability was much greater.   He determined there was “not a scintilla of evidence” that supported defendant's claims or demonstrated that they would have altered the result of the plea process.   Judge Austin emphasized that defendant was facing five first-degree charges, exposing him to between fifty and one hundred years incarceration.   The judge concluded that defendant's “attorney did an amazing job in negotiating the plea here.”   Judge Austin entered an order denying defendant's PCR petition on April 26, 2012.   This appeal followed.

On appeal, defendant raises the following contentions for our consideration:

POINT I:  THE PCR COURT ERRED BY FAILING TO GRANT JACKSON AN EVIDENTIARY HEARING WHERE JACKSON PRESENTED PRIMA FACIE EVIDENCE THAT TRIAL COUNSEL WAS INEFFECTIVE.

A. Trial Counsel was Ineffective for Failing to Object to the Judge's Finding of Aggravating Factor (1) Based Solely on the Fact that Jackson was Armed with a BB Gun or Imitation Firearm because “The Use of a Gun ha[d] been Factored into the Offense with which Defendant [was] Charged.”  State v. Pillot, 115 N.J. 558, 564 (1989).   Because the Finding of Aggravating Factor (1) Violated the Well–Established Prohibition Against Double Counting of Aggravating Evidence, Counsel's Failure to Object was Inexcusable.

B. If Aggravating Factor (1) had been Removed from the Sentencing Calculus, there is a Reasonable Probability that the Sentencing Court would have Imposed a Lesser Sentence.

POINT II:  THIS CASE MUST BE REMANDED FOR THE TRIAL COURT TO RULE ON THE POST–CONVICTION RELIEF CLAIMS SET FORTH IN JACKSON'S PRO SE PETITION.

We begin with a review of the well-established legal principles that guide our analysis.   Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime.   U.S. Const. amend.   VI;  N.J. Const. art.   I, ¶ 10.   This right to assistance of counsel “encompasses the right to effective counsel.”  State v. Norman, 151 N.J. 5, 23 (1997).  “Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding.”  State v. Preciose, 129 N.J. 451, 460 (1992).

Ineffective-assistance-of-counsel claims must satisfy the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987).   The test requires a showing of a deficient performance by counsel, and “ ‘that the deficient performance prejudiced the defense.’ ”  Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693).

This standard also applies in the context of guilty pleas, where attorney competence is required, and the prejudice prong “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.”  Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S.Ct. 366, 370, 88 L. Ed.2d 203, 210 (1985);  see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed.2d 873 (1996).

A petitioner must establish the right to relief by a preponderance of the evidence, Preciose, supra, 129 N.J. at 459, and “must allege facts sufficient to demonstrate counsel's alleged substandard performance.”  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).   However, “bald assertions” of ineffective assistance are not enough.  Ibid. The court must view the facts alleged in the light most favorable to the petitioner.  Ibid.

A person is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of “a reasonable likelihood that his or her claim will ultimately succeed on the merits.”  State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed.2d 88 (1997).   However, an evidentiary hearing need not be granted where “the defendant's allegations are too vague, conclusory, or speculative[.]”  Ibid.;   see also State v. Pyatt, 316 N.J.Super. 46, 51 (App.Div.1998), certif. denied, 158 N.J. 72 (1999).

Having considered the record in light of the applicable legal principles, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion.   R. 2:11–3(e)(2).   We affirm substantially for the reasons provided by Judge Austin in his April 23, 2012 oral opinion.   We add only the following brief discussion.

In applying the aggravating and mitigating factors set forth in N.J.S.A. 2C:44–1, the sentencing judge must “avoid ‘double counting’ circumstances that the Legislature has already incorporated as an element of the offense.”   State v. Lawless, 214 N.J. 594, 608 (2013).   Indeed, “[c]onsideration of an inappropriate aggravating factor violates the guidelines and thus is grounds for vacating sentence.”  State v. Pineda, 119 N.J. 621, 628 (1990).

“Elements of a crime, including those that establish its grade, may not be used as aggravating factors for sentencing of that particular crime.”   Lawless, supra, 214 N.J. at 608.   Thus, where the use of a weapon is utilized to elevate the degree of an offense, the fact that a firearm was used cannot also be used as the basis for an aggravating factor.  Pillot, supra, 115 N.J. at 564.

Under aggravating factor one, “[t]he nature and circumstances of the offense,” N.J.S.A. 2C:44–1(a)(1), “the sentencing court reviews the severity of the defendant's crime, ‘the single most important factor in the sentencing process,’ assessing the degree to which defendant's conduct has threatened the safety of its direct victims and the public.”  Lawless, supra, 214 N.J. at 609 (quoting State v. Hodge, 95 N.J. 369, 378–79 (1984)).   The court must “undertake[ ] a thorough and broad inquiry” looking at “the gravity of the defendant's conduct, considering both its impact on its immediate victim and the overall circumstances surrounding the criminal event.”  Id. at 609–10.

Here, defendant alleges that his trial counsel was constitutionally ineffective when he failed to object to the judge's alleged double counting at the sentencing hearing.   Defendant argues that the sentencing judge found aggravating factor one solely due to his use of a firearm.   According to defendant, because the first-degree robbery conviction was based on his use of a deadly weapon, the judge's findings constituted improper double counting.   If his counsel had objected, defendant contends, aggravating factor one would not have been part of the calculation of his sentence and he would have received a lesser sentence.

Based upon our review of the record, we are convinced that the sentencing judge did not double count in his finding of aggravating factor one.   Although the judge did refer to the use of a weapon, he found the nature and circumstances of defendant's offenses were particularly heinous because defendant lured each of his victims into a trap in a dark, secluded, and dangerous location.   The judge described each victim as “some poor working guy trying to operate a taxi to support his family find[ing] himself looking down the barrel of a gun.”   After defendant trapped and threatened his victims, he slashed their tires so that they were stranded in the isolated location.   Thus, the judge did not double count but appropriately applied aggravating factor one.   Hence, defendant's counsel was not deficient in failing to raise a non-existent error.

Defendant also argues that the failure of Judge Austin to specifically address his seven pro se arguments in the opinion warrants reversal.   We disagree.   The judge specifically stated that he read all submissions and found that defendant produced no evidence in support of his claims.   As more than bald assertions are required to support a PCR application, the judge properly dispensed of defendant's pro se claims.   See Cummings, supra, 321 N.J.Super. at 170.

Affirmed.

PER CURIAM

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