STATE OF NEW JERSEY v. RAHEEM JONES (13-05-0503, PASSAIC COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3213-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAHEEM JONES,
Defendant-Appellant.
_______________________
Submitted September 28, 2022 – Decided October 14, 2022
Before Judges Messano and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 13-05-0503.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the briefs).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Lauren Bonfiglio, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
A jury found defendant Raheem Jones guilty of the murder of L.S. and
related weapons offenses. State v. Jones, No. A-5394-15 (App. Div. Dec. 14,
2018) (slip op. at 2). 1 We affirmed the convictions on direct appeal, vacated the
sentence imposed by the trial judge, and remanded for resentencing. Id. at 4.
The judge re-sentenced defendant to life imprisonment with a period of parole
ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
and the Supreme Court denied defendant's petition for certification. State v.
Jones, 238 N.J. 426 (2019).
Defendant filed a timely pro se petition for post-conviction relief (PCR)
in which he alleged trial counsel provided ineffective assistance (IAC). Among
other things, defendant claimed counsel: failed to properly advise him of his
sentencing exposure if he went to trial compared to the State's more favorable
plea offer; failed to investigate a third-party guilt defense; and failed to properly
advise him of his right to testify in his own defense. PCR counsel was appointed
to represent defendant. In his brief and at oral argument, PCR counsel presented
defendant's claims and additionally argued trial counsel failed to investigate
defendant's alibi defense in addition to a third-party guilt defense.
1
We use initials only because we did so in our prior opinion.
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In support of the petition, defendant served a Paterson Police Department
report recounting the officers' interview of Clive Haughton. Haughton told
police that on the night of the murder, he was on the phone with the victim, who
he first met at work. The victim said she could not speak with Haughton because
her boyfriend, who had assaulted her in the past, would not let her go to the
laundromat without him. Defendant's investigators attempted to locate
Haughton in 2019 to no avail; their efforts were documented in several
supplemental reports.
In addition, the investigators attempted without success to locate Sherell
Pointer, defendant's cousin. PCR counsel claimed defendant told trial counsel
he was with Pointer in Plainfield on the night of the murder, and they went to
New York to do Christmas shopping. Again, several documents detailed
investigators' efforts to locate Pointer. Defendant sought an evidentiary hearing
on his PCR claims.
The PCR judge, who was also the trial judge, rendered an oral opinion
addressing defendant's arguments and denying the petition. He entered a
conforming order on July 7, 2020, and this appeal followed.
To succeed on an IAC claim, a defendant must meet the two-prong test
enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and applied
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by our Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must
show "that counsel made errors so serious that counsel was not functioning as
the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52(quoting Strickland, 466 U.S. at 687). "To satisfy prong one, [a defendant] ha[s]
to 'overcome a "strong presumption" that counsel exercised "reasonable
professional judgment" and "sound trial strategy" in fulfilling his
responsibilities.'" State v. Nash, 212 N.J. 518, 542 (2013) (quoting State v.
Hess, 207 N.J. 123, 147 (2011)). "[I]f counsel makes a thorough investigation
of the law and facts and considers all likely options, counsel's trial strategy is
'virtually unchallengeable.'" Ibid. (alteration in original) (quoting State v.
Chew, 179 N.J. 186, 217 (2004)).
Second, a defendant must show a "reasonable probability" that the
deficient performance affected the outcome. Fritz, 105 N.J. at 58. "A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." State v. Pierre, 223 N.J. 560, 583 (2015) (quoting Strickland, 466
U.S. at 694; Fritz, 105 N.J. at 52).
Our rules anticipate the need to hold an evidentiary hearing on a PCR
petition, "only upon the establishment of a prima facie case in support of post-
conviction relief." R. 3:22-10(b). "A prima facie case is established when a
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defendant demonstrates 'a reasonable likelihood that his or her claim, viewing
the facts alleged in the light most favorable to the defendant, will ultimately
succeed on the merits.'" State v. Porter, 216 N.J. 343, 355 (2013) (quoting R.
3:22-10(b)). "[W]e review under the abuse of discretion standard the PCR
court's determination to proceed without an evidentiary hearing." State v.
Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) (citing State v. Marshall,
148 N.J. 89, 157–58 (1997)).
Before us, defendant reiterates the arguments made to the PCR judge. He
contends the judge should have held an evidentiary hearing on his IAC claims
because trial counsel's "misadvice led [defendant] to reject the State's plea
offer," there were available "alibi and third[-]party defenses" counsel failed to
present, and trial counsel's ineffective assistance "denied [defendant] his
constitutional right to testify in his own defense." We disagree and affirm.
We begin by noting our review is limited because none of the facts
defendant asserts to support his claims regarding his sentence exposure if he
went to trial, or that he was with Pointer on the night of the murder, or that he
wished to testify on his own behalf but trial counsel dissuaded him from doin g
so, are supported in the appellate record by defendant's verified petition, or a
certification or affidavit from any witness. See R. 3:22-8 ("The petition shall
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be verified by defendant and shall set forth with specificity the facts upon which
the claim for relief is based, the legal grounds of complaint asserted, and the
particular relief sought." (emphasis added)). Instead, we are furnished only with
PCR counsel's brief and the argument he made to the judge. This procedural
deficiency would be enough for us to affirm without considering the merits of
defendant's IAC claims. Nevertheless, because the State has failed to raise the
issue and for the sake of completeness, we address defendant's arguments.
In support of defendant's claim that trial counsel misadvised him of his
sentencing exposure if he went to trial, defendant furnished the PCR judge with
the Pretrial Memorandum completed by defense counsel and signed by
defendant. Question four asked if "a mandatory period of parole ineligibility
appl[ied]," and, if so, as to which count. Contrary to defendant's assertion that
question four was left blank and unanswered, handwritten next to "85% Law
Term" on the form was "Life," and "66 1/2 yrs" after "Term." Although the
"yes/no" answer to question four was not circled, the PCR judge concluded, "it
[wa]s amply clear . . . [defendant] was aware he was exposed to a life term with
a lengthy parole ineligibility." We agree. Moreover, the form explicitly said
the State's plea offer was a forty-five-year term of imprisonment subject to
NERA, and restitution for the victim's funeral expenses. The record before us
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demonstrates defendant was fully aware of the penal consequences of going to
trial versus accepting the State's plea offer.
There is another reason why defendant's claim that he would have
accepted a plea bargain if he knew what his potential sentence exposure was
lacks merit. Defendant has uniformly asserted throughout the PCR proceedings
that he had viable alibi and third-party guilt defenses that trial counsel failed to
investigate or fully assert, thereby implicitly asserting his innocence. As the
Supreme Court made clear in State v. Taccetta, a PCR petitioner cannot assert
that he would have pled guilty but for his attorney's deficient performance, and
at the same time assert his factual innocence. 200 N.J. 183, 196–97 (2009).
Without doubt, the "[f]ailure to investigate an alibi defense is a serious
deficiency that can result in the reversal of a conviction." Porter, 216 N.J. at 353.
It is equally without doubt that "[w]hen a petitioner claims his trial attorney
inadequately investigated his case, he must assert the facts that an investigation
would have revealed, supported by affidavits or certifications based upon the
personal knowledge of the affiant or the person making the certification." Ibid.
(quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)); see
also State v. Jones, 219 N.J. 298, 311–12 (2014) ("[T]o entitle a PCR petitioner
to an evidentiary hearing, 'bald assertions' are not enough—rather, the defendant
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'must allege facts sufficient to demonstrate counsel's alleged substandard
performance.'" (quoting Porter, 216 N.J. at 355)).
The PCR judge rejected defendant's claim that trial counsel failed to
investigate his alibi defense, stating:
[T]here's nothing, absolutely nothing, which
establishes that this is anything other than a recent
fabrication on the part of [defendant]. There's no
certification from Ms. Pointer. And absent that, this
utterly unsupported contention cannot be the basis for
a prima facie showing of any . . . ineffective assistance
of counsel.
We agree, and the argument lacks sufficient merit to warrant further discussion.
R. 2:11-3(e)(2).
We explain the context for defendant's related claim—counsel failed to
investigate and assert a third-party guilt defense—which is equally unavailing.
At trial, the jury heard the victim's 9-1-1 call in which she "told the operator[,]
'I was stabbed to death. My boyfriend stabbed me . . . all over my body.'" Jones,
slip op. at 6. Defendant's PCR counsel asserted the victim's reference to her
boyfriend was a reference to Clive Haughton.
At trial, the victim's mother and other witnesses said she was dating Clive
at the time she was murdered, and that defendant was her ex-boyfriend. In her
summation, defense counsel vigorously argued that when the victim told the
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dispatcher her boyfriend stabbed her, she meant Clive, not defendant. In short,
trial counsel fully presented a third-party guilt defense, but given the other
substantial evidence of defendant's guilt, the jury rejected the contention. That
does not mean counsel's performance was deficient.
Defendant implies Haughton should have been called as a witness.
However, the police spoke with him, and, if Haughton testified consistently with
the information he gave to police as cited above, his testimony would not have
helped defendant in the least.
Lastly, the record belies defendant's claim that he wished to testify and
trial counsel dissuaded him from doing so without explanation. Trial counsel
engaged in extensive questioning of defendant under oath, and the exchange
illustrates counsel fully explained defendant's right to testify, the possible
consequences of his choice, and the option to have the jury instructed to draw
no inference from defendant's choice not to testify, and that defendant
knowingly and voluntarily waived his right to testify. The PCR judge found that
to be the case, and so do we.
Affirmed.
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