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N.J.S.A. 2C:11-3a(1)(2), and other related offenses. He entered into a negotiated plea agreement, which resulted in his plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. Defendant was sentenced in accordance with the plea agreement to an aggregate prison term of eighteen-years with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). At the time of his plea, defendant admitted to stabbing his girlfriend in the neck. She died as a result of these injuries. Defendant did not appeal. ">

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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1150-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON JONES,

Defendant-Appellant.

________________________________________________________________ January 6, 2011

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Submitted November 16, 2010 - Decided

Before Judges Carchman and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-12-3941.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Assistant Essex County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jason Jones was originally charged with first-degree murder, N.J.S.A. 2C:11-3a(1)(2), and other related offenses. He entered into a negotiated plea agreement, which resulted in his plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. Defendant was sentenced in accordance with the plea agreement to an aggregate prison term of eighteen-years with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). At the time of his plea, defendant admitted to stabbing his girlfriend in the neck. She died as a result of these injuries. Defendant did not appeal. Approximately sixteen months later, in September 2008, defendant filed a petition for post-conviction relief (PCR). In his PCR, defendant asserted that he was denied effective assistance of counsel. Specifically, he argued that counsel was ineffective because she failed to present evidence of his mental illness, which would have precluded him from entering a plea. In addition, defendant claims that he was not advised that a plea could potentially result in deportation. In denying relief, the PCR judge determined that defendant's mental illness should have been raised on direct appeal, R. 3:22-4(a). The judge noted: "Petitioner makes no mention in his certification nor does counsel in his supplemental brief that Petitioner raised these concerns to his trial counsel and/or to the
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Court during its colloquy with the Petitioner during the plea stage." The judge further concluded that neither the "fundamental injustice" exception, R. 3:22-4(b), nor the "constitutional rights" exception, R. 3:22-4(c), were implicated here. In addition, he found that no evidentiary hearing was required, R. 3:22-10, as there was no showing of a prima facie case to warrant such a hearing. Finally, the judge rejected defendant's argument regarding counsel's alleged failure to advise defendant as to the deportation consequences of a plea. The judge noted that in an earlier plea on different charges, defendant was advised of the possibility of deportation and acknowledged that information on his plea form. Defendant appeals; we reverse and remand for a hearing limited to the issue of ineffective assistance of counsel as it relates to his alleged mental illness. We reject the prosecutor's arguments that defendant's claim was barred by Rule 3:22-3 and Rule 3:22-4. Rule 3:22-3 states that: Except as otherwise required by the Constitution of New Jersey, a petition pursuant to this rule is the exclusive means of challenging a judgment rendered upon conviction of a crime. It is not, however, a substitute for appeal from conviction or for motion incident to the proceedings in the trial court, and may not be filed while such appellate review or motion is pending. The Comment to Rule 3:22-3 explains, This rule was amended effective September 2009 as part of the overall revisions of the post-conviction rules then adopted. The import of the change is to make clear that the bar against filing a post-conviction relief petition applies only if direct review is pending rather than, as heretofore, if such review is available.

In this case, direct review is not pending. This Rule requires the bar of a PCR petition only if direct review is pending, not if it is available. Accordingly, this Rule does not act as a bar to PCR in this case. Rule 3:22-4 states in relevant part: (a) Any ground for relief not raised in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing
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finds:

(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or

(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or

(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.

In the past, it was commonly held that ineffective assistance of counsel claims were ordinarily exempt from the bar of this Rule because they were grounded in the Sixth Amendment and the New Jersey Constitution. See e.g. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.2d 898 (2005); State v. Preciose, 129 N.J., 451, 459-60 (1992); State v. Guzman, 313 N.J. Super. 363, 374-75 (App. Div.), certif. denied, 156 N.J. 424 (1998). However, Rule 3:22-4 was amended effective February 2010. Under the amendments, section (a)(3) was "clarified by language indicating that it must be a new, retroactive rule of constitutional law that was previously unavailable." Pressler and Veniero, Current N.J. Court Rules, comment 1 on R. 3:22-4 (2011). (emphasis added). Accordingly, defendant's argument that his claim is not barred because it is grounded in the Sixth Amendment and the New Jersey Constitution is without merit because defendant has not asserted that barring his claim would be contrary to a new rule of constitutional law. Nevertheless, under Rule 3:22-4 (a)(1) courts commonly hold that "'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. Echols, 199 N.J. 344, 357 (2009) (quoting Preciose, supra, 120 N.J. at 460). "However, when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006) (citing State v. Allah, 170 N.J. 269, 285 (2002)).

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In this case, the proceedings below consist only of a plea hearing and a sentencing. At the plea defendant stated on the record that he was satisfied with his counsel and understood that he was entering a guilty plea. However, defendant also alleges that his counsel told him how to answer the questions so that the court would accept the plea, that he was afflicted by psychiatric and cognitive issues at the time of the plea and that his counsel never told him of the deportation consequences of his plea. These discussions defendant had with counsel in preparation for the plea and defendant's mental state are not on the record. Defendant first implies that counsel was ineffective because had she investigated his case and considered defendant's mental impairments, counsel would have attempted to persuade the prosecutor to offer a passion provocation manslaughter plea agreement under N.J.S.A. 2C:11-4(b)(2), as opposed to the aggravated manslaughter agreement he received. We derive this argument less from defendant's appellate brief than from the transcript and appendix. Defendant further asserts that if counsel investigated his case more thoroughly, she would have retained a mental health expert and possibly raised an insanity defense. A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984). The Strickland twoprong standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). State v. Allegro, 193 N.J. 352, 366 (2008); see also State v. Castagna, 187 N.J. 293, 313 (2006); State v. Martini, 160 N.J. 248, 265 (1999) (all holding that the Strickland two-pronged test applies in New Jersey). Under Strickland, to obtain relief based upon a claim of ineffective assistance of counsel, defendant must show that counsel's performance was deficient, and that counsel's deficient performance prejudiced his 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). Under the first prong, counsel's performance is deficient if it falls "'below an objective standard of reasonableness.'" Martini, supra, 160 N.J. at 264 (quoting Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 693). To set aside a guilty plea based on the ineffective assistance of counsel, under the first prong of Strickland defendant must demonstrate that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed.2d 873 (1996) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed.2d 235, 243 (1973)).

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Furthermore, because it is inherently difficult to evaluate defense counsel's tactical decisions from his or her perspective during trial, under the first prong, a court must "'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Harris, supra, 181 N.J. at 431 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). In other words, "defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed.2d 83, 93 (1955))). Under the second prong, the defective performance is prejudicial if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. In the context of a guilty plea, under this prong a defendant must establish that "'that there is a reasonable probability that, but for counsel's errors, [defendant] would not have pled guilty and would have insisted on going to trial.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed.2d 203, 210 (1985)). In particular, where the allegation is that counsel failed to inform the defendant of possible affirmative defenses, "the . . . inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." Hill, supra, 474 U.S. at 59, 106 S. Ct. at 371, 88 L. Ed 2d at 210. To succeed under the second Strickland prong, defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific 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). As in a summary judgment motion, the motion judge should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. Here, defendant alleges that counsel failed to properly investigate his case. "Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Furthermore, the New Jersey Supreme Court has considered the issue of psychiatric defenses and held that when evidence

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indicated that investigation of a psychiatric or diminished-capacity defense was warranted and counsel failed to investigate such a defense, counsel did not perform a "thorough investigation of law and facts" and was therefore ineffective. State v. Savage, 120 N.J. 594, 618 (1990). Here, if defendant's assertions are accurate, then he has met the first prong of Strickland. Under the second prong of Strickland, when a defendant claims that 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. Cummings, supra, 321 N.J. Super. at 170. Defendant, here, supports his assertions with evidence that he has a history of mental instability, including schizophrenia and depression, as well as heavy marijuana use. We are unable to discern from this limited record whether defendant's assertions establish the remaining requirements under the second prong of Strickland -- i.e. that were it not for counsel's alleged failure to raise these affirmative defenses, defendant would have insisted on going to trial and likely succeeded at trial. Defendant's first argument that if counsel had further investigated into his mental health, he would have been able to negotiate a passion provocation plea, is without merit. The limited factual record on the plea fails to establish any basis to conclude that defendant would have succeeded under a passion provocation manslaughter defense.
1

With regard to defendant's second argument, defendant does not assert specifically anywhere in his brief that he would have gone to trial relying on an insanity defense, had counsel investigated his mental health more thoroughly. However, the argument does merit further inquiry. Defendant suggests that he would have succeeded under an insanity defense when he states that he "told investigating officers that he was mentally ill" and this "could have impacted the State's proof of the mental intent required for the crimes." Inferentially, had counsel investigated defendant's mental issues and obtained a psychiatric expert, defendant would have gone to trial and possibly succeeded under an insanity defense. Defendant asserts that he is entitled to a hearing on his PCR. Although we have significant doubts as to whether defendant could have bettered the reduced plea obtained through the efforts of counsel, we conclude that a hearing is warranted to explore the bona fides of defendant's mental condition and whether
2

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defendant can meet the second prong of Strickland. A defendant is not automatically entitled to an evidentiary hearing on a PCR motion. Rule 3:22-10 vests the trial court with the discretion to conduct such a hearing. "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted). A trial court should grant an evidentiary hearing to resolve ineffective assistance of counsel claims if defendant has presented a prima facie case in support of post-conviction relief. Preciose, supra, 129 N.J. at 463. Although courts grant deference to counsel's trial strategies and counsel is presumed effective, an evidentiary hearing will assist in determining what those trial strategies were. There is no evidence in the record as to what trial counsel did or did not investigate, and an evidentiary hearing will allow the court to determine whether counsel's performance met the requirements of Strickland. Finally, we reject, as did the trial judge, defendant's claim that he was not advised as to the consequences of his plea and its affect on his immigration status. The issue of immigration status and deportation has been the subject of decisions of both our Supreme Court and the Supreme Court of the United States. See Padilla v. Kentucky, 599 U.S. ____, 130 S. Ct. 1473, 176 L. Ed.2d 284 (2010) (holding that because deportation is uniquely difficult to classify as either a direct or a collateral consequence, this distinction is ill-suited to evaluating a Strickland claim concerning the specific risk of deportation, and advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel); State v. Nunez-Valdez, 200 N.J. 129 (2009) (holding that counsel's misinformation could form a basis to vacate a guilty plea under the two-prong standard of Strickland and whether a defendant should be advised of the deportation consequences of a guilty plea should not depend on whether the consequences is characterized as "collateral"). While on its face, the absence of any explanation or discussion regarding defendant's immigration status or the possibility of deportation is wanting, the judge noted that he had taken a plea from defendant on unrelated charges at which time, the issue of deportation was addressed, and defendant was advised of the consequences. That plea was apparently entered in August 2006. At the hearing on the PCR, the State

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should present the necessary proofs to establish these facts and then the judge may analyze that information consistent with the Court's standards enunciated in State v. Slater, 198 N.J. 145, 150 (2009). W

e reverse the denial of the PCR and remand for a hearing limited to the issues described herein and consistent with this opinion. We do not retain jurisdiction. 1 Passion provocation manslaughter requires a defendant to prove (1) the provocation was adequate; (2) the defendant did not have time to cool off between the provocation and the slaying; (3) the provocation actually impassioned the defendant; and (4) defendant must not have actually cooled off before the slaying. State v. Mauricio, 117 N.J. 402, 411 (1990); State v. Docaj, 407 N.J. Super. 352, 361 (App. Div.), certif. denied, 200 N.J. 370 (2009). The proofs fail to demonstrate that defendant could establish a factual basis for the charge of passion provocation manslaughter. 2 To prevail under an insanity defense, a defendant must prove by a preponderance of the evidence that "he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong." N.J.S.A. 2C:4-1.

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