STATE OF NEW JERSEY VS. JERMAINE EASON (13-04-0369, PASSAIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 4, 2021
• Docket: A-4488-18
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4488-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE EASON, a/k/a JULITO EASON, and JERMAINE JULITO,

Defendant-Appellant. _______________________

Submitted March 16, 2021 – Decided June 4, 2021

Before Judges Fisher and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 13-04-0369.

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

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Indicted, with codefendants Rayvon Wilson and Clara Amaya, for second-

degree conspiracy to commit robbery, N.J.S.A. 2C:15-1(a)(2) and 2C:5-2 (count

one); eleven counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(1) and (2)

(counts two, five, seven, ten, thirteen, sixteen, nineteen, twenty-two, twenty-

five, twenty-eight and thirty-three); eleven counts of second-degree possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts three, six,

eight, eleven, fourteen, seventeen, twenty, twenty-three, twenty-six, twenty-nine

and thirty-four); one count of second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(a) (count four); three counts of fourth-degree theft, N.J.S.A.

2C:20-3 (counts nine, eighteen and thirty); six counts of third-degree theft,

N.J.S.A. 2C:20-3 (counts twelve, fifteen, twenty-one, twenty-four, twenty-seven

and thirty-five); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(1) and (2) (counts thirty-one and thirty-two), and after his first trial ended

in a mistrial during jury deliberations, on the ninth day of jury selection during

his second trial, defendant Jermaine Eason pleaded guilty to second-degree

unlawful possession of a weapon (count four) and seven counts of first-degree

robbery (counts five, seven, ten, nineteen, twenty-five, twenty-eight and thirty-

three). He also pleaded guilty under the terms of the same plea agreement to

charges in two other indictments: third-degree corrupting a juror, N.J.S.A.

2 A-4488-18 2C:29-8, and third-degree terroristic threats, N.J.S.A. 2C:12-3. He was

sentenced to an aggregate twenty-year prison term subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2, which we affirmed on our excessive

sentencing calendar, State v. Eason, No. A-5272-16 (App. Div. Jan. 9, 2018).

His timely filed postconviction relief (PCR) petition, as supplemented by

a brief prepared by appointed counsel, was denied by Judge Marybel Mercado-

Ramirez. Defendant appeals, arguing:

THIS MATTER MUST BE REMANDED FOR THE APPOINTMENT OF NEW PCR COUNSEL AS SUPPORT WAS NOT PROVIDED FOR ANY OF THE ARGUMENTS RAISED BY [DEFENDANT] IN THE PCR PETITION, LEAVING THE PCR COURT UNABLE TO PROPERLY ADDRESS ANY OF HIS ISSUES.

Reviewing the factual inferences drawn by the judge and her legal

conclusions de novo because she did not conduct an evidentiary hearing, State

v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016), we agree with defendant

that his counsel's brief did little to advance his arguments. But Judge Mercado-

Ramirez thoroughly reviewed each of the arguments defendant wished to

advance and found them meritless. We affirm substantially for the reasons set

forth in her comprehensive oral decision.

3 A-4488-18 Defendant reiterates his claims of ineffective assistance of both his trial

counsel and appellate counsel that were set forth in his pro se petition and

concomitant certification. Defendant avers his trial counsel who represented

him during the first trial failed to provide him with full discovery; "convinced"

him to plead guilty; and failed to "effectively represent [him] during the pretrial

preparation process[] and subsequent guilty plea." Appellate counsel, according

to defendant, failed to "appeal the denial of various motions such as his

suppression motion and severance motion, as well as his motion to substitute

counsel, and [appellate counsel's] failure to challenge prosecutorial misconduct

and disparity in sentencing."

The focus of defendant's argument on appeal is not on the merits of his

prior counsels' ineffectiveness under the Strickland-Fritz standard, 1 but on his

PCR counsel's failure "to [both] address these arguments with any supporting

1 To establish a PCR claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), first by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," then by proving he suffered prejudice due to counsel's deficient performance, Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at 52. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome of the proceeding. Fritz, 105 N.J. at 58.

4 A-4488-18 information in his brief" and submit transcripts of the first trial, particularly

those of the pre-trial motions. Defendant contends he was "not given a

meaningful opportunity to have a full and fair [PCR] hearing with his claims

advanced by counsel."

Our Supreme Court made clear the duties of PCR counsel:

Under our scheme that attorney is responsible to communicate with his client and investigate the claims. State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000); State v. Casimono, 298 N.J. Super. 22, 27 (App. Div. 1997) (remanding case to trial court to determine whether PCR counsel fulfilled his obligations to interview trial counsel, meet with defendant, submit brief, and argue on behalf of defendant); State v. King, 117 N.J. Super. 109, 111 (App. Div. [1971]). Based on that communication and investigation, counsel then must "fashion the most effective arguments possible." Velez, 329 N.J. Super. at 133.

[State v. Rue, 175 N.J. 1, 18 (2002).]

In the brief submitted to Judge Mercado-Ramirez, PCR counsel sparely

addressed trial counsel's ineffectiveness:

Here, [defendant] states that his trial counsel did not properly review his case; did not provide him with all of the discovery; failed to perform investigations; and did not take his client's statement that he intended to proceed to trial into account and convinced him to enter a guilty plea in contravention of his client's wishes.

These actions[] and non-actions on the part of trial counsel qualify as ineffectiveness and meet[] the

5 A-4488-18 strictures of both prongs of the Strickland-Fritz test for allowing the matter to proceed.

[Defendant] has provided in his pro[]se PCR petition, and with more specificity in his supplemental certification the specific issues he wishes the [c]ourt should consider for relief.

His argument regarding appellate counsel specified only:

[Defendant] also states that appellate counsel, who instead of appealing the entire matter, including and especially the denial of his suppression motion, submitted his case to the [excessive sentence oral argument] panel to only have his sentence addressed.

During the first day of the PCR hearing, Judge Mercado-Ramirez

entertained defendant's complaints regarding PCR counsel's submission and his

request for new counsel. The judge did yeoman's work to ascertain the basis for

defendant's claims and to thoroughly scour the record to see if any were

supported. Having handled the case from the first day of jury selection during

the first trial through plea and sentencing, the judge's familiarity with the record

was evidenced in the findings she made as to each argument advanced by

defendant.

After synopsizing the evidence pertaining to each of the eleven robberies

with which defendant was charged, the judge turned to defendant's claims of

ineffectiveness of his trial counsel, beginning with counsel's failure to provide

6 A-4488-18 him with discovery, investigate favorable evidence and "to obtain police

dispatch records that would have proved [defendant] was innocent." The judge

related defendant's clarification, made during the first hearing, that "the only

item of discovery his trial counsel failed to provide was the police dispatch

report," and "the necessary investigation for favorable evidence he referred to

was the same police dispatch report."

Although the judge was not provided with transcripts of the first trial, she

reviewed CourtSmart recordings and from them found the record evidenced

defendant did receive the dispatch report. She first noted defendant signed a

pretrial memorandum on October 19, 2015, agreeing all discovery had been

provided. Moreover, on May 6, 2016, during the trial testimony of Paterson

Police Officer Alfredo Guzman, who performed the motor-vehicle stop that led

to defendant's arrest, trial counsel "extensively" cross-examined him about the

contents of the dispatch report, leading the judge to conclude "even before jury

selection of his second trial [began, defendant] was aware of that police dispatch

report and his trial counsel used it effectively during [defendant's] very first

trial." The judge also reviewed the dispatch report and found it did "not contain

anything of any significance that would prove [defendant's] innocence."

7 A-4488-18 Judge Mercado-Ramirez also noted defendant pleaded guilty during the

second trial's ninth day of jury selection after having "had a full-blown lengthy

[first] trial where all the evidence was presented and challenged" and entered

his guilty plea knowing the State added DNA evidence showing defendant's

blood was found at the scene of the last robbery during which defendant had

been shot by the store owner. The court also considered the plea form and plea

colloquy during which defendant acknowledged he: was satisfied with his trial

counsel; had reviewed the evidence with him; had sufficient time to speak to

counsel about the case; had all his questions answered by counsel to his

satisfaction; was not forced or threatened to plead guilty; was not promised

anything nor were representations made to him other than those made in open

court. The judge found that record belied defendant's contention that counsel

saw him only a handful of times and convinced him to plead guilty. The judge

added her review of the court file showed defendant and his trial counsel had

appeared before her forty-two times and had appeared before other judges

assigned to the case on twenty other dates.

The judge also observed defendant faced a life sentence if convicted at

trial because his prior record exposed him to a discretionary extended term,

N.J.S.A. 2C:44-3, but the plea agreement called for a twenty-year sentence for

8 A-4488-18 seven first-degree robberies. Thus, Judge Mercado-Ramirez concluded

defendant had not shown: "(i) counsel's assistance was not 'within the range of

competence demanded of attorneys in criminal cases'; and (ii) 'that there is a

reasonable probability that, but for counsel's errors, [defendant] would not have

[pleaded] guilty and would have insisted on going to trial.'" State v. Nuñez-

Valdéz, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457

(1994)).

The judge undertook the same painstaking review of defendant claims of

appellate counsel's ineffective assistance.

Judge Mercado-Ramirez had heard and denied defendant's motion to

suppress based on his contention Officer Guzman randomly stopped the motor

vehicle in which he was found. During her recitation of the facts pertaining to

the robbery of the El Higha Deli Grocery Store, during which one of the two

perpetrators was shot by the store owner, the judge noted Guzman was advised

via radio transmission minutes after the robbery "to be on the lookout for a

potential suspect vehicle": a Suzuki Grand Vitara XL7. Less than one-half hour

after the robbery, Guzman observed a vehicle matching that description

"traveling in a northerly direction away from the robbery location." Guzman

followed the vehicle and, from a license-plate check, learned the registered

9 A-4488-18 owner had a suspended driver's license, prompting him to initiate a motor

vehicle stop. From Guzman's report and trial testimony, the judge deduced, even

before Guzman could call in the stop to headquarters, he heard the vehicle's

driver yell, "he's shot." Guzman approached the vehicle with his gun drawn

because the circumstances linked the vehicle to the robbery. Defendant,

suffering a gunshot wound, was among the vehicle's three occupants. The judge

also related how each of the other occupants had confessed to eight robberies,

implicating defendant in detailed descriptions of the crimes.

The judge found Guzman, whose suppression-motion testimony she

deemed credible, was justified in stopping the vehicle based on the radio

transmission alone, and, when buttressed by the evidence of the owner's license

suspension, an appeal of the denial would not have been successful. We agree.

Defendant has not asserted any fact that would have warranted a reversal of the

motion judge's denial, based on the officer's testimony which she found credible.

See State v. Locurto, 157 N.J. 463, 471-72 (1999).

The judge also found appellate counsel was not ineffective for failing to

challenge defendant's other pre-trial motions. During argument at the excessive-

sentencing hearing, appellate counsel advised the panel he had received "a

communication from [defendant] in which he indicated that he didn't want an

10 A-4488-18 [excessive sentence] appeal, he wanted to appeal his pretrial motions." Counsel

represented he had "consulted the pertinent portions of the plea form and the

plea transcript" and had sent defendant "a letter back explaining with the

documents showing him that he had, in fact, explicitly waived his right to appeal

the pretrial motions and that therefore we would proceed with the [excessive

sentencing] appeal."

Judge Mercado-Ramirez reviewed the portion of defendant's plea

colloquy in which he stated he understood he was waiving his right to appeal

any pretrial motions, other than the suppression motion, confirming that portion

of the plea form addressing that waiver. The judge observed "appellate

attorney's performance cannot be found to be deficient based upon rights

previously waived by the client." The judge also diligently reviewed the denial

of defendant's motions to sever counts and substitute trial counsel and concluded

there would be no merit to an appeal of those decisions.

Because defendant admitted his claim of prosecutorial misconduct was

based on the purported failure to turn over the dispatch records, the judge

concluded her finding that the report was turned over and used by trial counsel

during the first trial rendered that argument meritless if appealed.

11 A-4488-18 Defendant is entitled "to the effective assistance of appellate counsel on

direct appeal." State v. O'Neil, 219 N.J. 598, 610 (2014). To that end, appellate

counsel has a duty to "bring to the court's attention controlling law that will

vindicate her [or his] client's cause." Id. at 612. But appellate counsel is not

obligated to raise issues they know to be without merit. See State v. Worlock,

117 N.J. 596, 625 (1990); State v. Gaither, 396 N.J. Super. 508, 515-16 (App.

Div. 2007). The United States Supreme Court held appellate advocates must

exercise professional judgment in winnowing potential issues on appeal,

selecting only "the most promising for review," and cautioned against judges

"second-guess[ing] reasonable professional judgments" of appellate counsel.

Jones v. Barnes, 463 U.S. 745, 752, 754 (1983).

We follow the Court's guidance in holding an appellate counsel, unlike a

PCR counsel, is not mandated to advance every argument a defendant desires to

include in a direct appeal. Gaither, 396 N.J. Super. at 515. Our Supreme Court

also instructed that "[a]n attorney is entitled to 'a strong presumption' that he or

she provided reasonably effective assistance, and a 'defendant must overcome

the presumption that' the attorney's decisions followed a sound strategic

approach to the case." State v. Pierre, 223 N.J. 560, 578-79 (2015) (quoting

Strickland, 466 U.S. at 689). Under those precepts, we agree with Judge

12 A-4488-18 Mercado-Ramirez that appellate counsel was not ineffective when he refrained

from appealing the denial of defendant's motions.

The judge's thorough review also included defendant's sentencing-

disparity argument. We discern no reason to disturb the judge's cogent

observations, echoing her findings made during defendant's sentencing, that

defendant: pleaded guilty to seven robberies involving separate incidents and

victims, and his codefendants pleaded guilty to only three; pleaded guilty to two

additional indictments; faced a possible life term; and, as the "main actor," had

"far greater" culpability than his codefendants.

The judge concluded defendant's unsupported assertions of appellate

counsel's errors did not warrant a finding of ineffective assistance, and that

defendant had not established a prima facie case to warrant an evidentiary

hearing.

Even though PCR counsel did not advance defendant's arguments in his

brief, Judge Mercado-Ramirez's careful consideration of those arguments

obviate the necessity for a remand. As was the case in Rue, the brief submitted

did little to show the "best available arguments" were made on defendant's

behalf. Rue, 175 N.J. at 19. But PCR counsel did not "denigrate or dismiss"

13 A-4488-18 defendant's pro se claims, or "negatively evaluate them"; nor did he "render aid

and support to the state's opposition." Ibid.

Defendant does not contend there was any evidence not considered by

Judge Mercado-Ramirez that would have better supported his PCR arguments.

He does not proffer any argument or evidence that his PCR counsel should have

advanced to counter the judge's finding that he met neither prong of Strickland-

Fritz and did not establish a prima facie case. This is not an appeal of a

determination of a PCR petition alleging ineffective assistance of PCR counsel.

But, as Judge Mercado-Ramirez cogently found, there is no merit to the claims

of ineffective assistance of any counsel, including those raised by defendant

alone. We see no reason to disturb Judge Mercado-Ramirez's well-reasoned

denial of defendant's petition.

Affirmed.

14 A-4488-18