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(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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-5192-07T45192-07T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIE JACKSON, Defendant-Appellant. _________________________________________________

Submitted October 15, 2009 - Decided Before Judges Cuff and Payne. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-02-0455. Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Paul T. Dow, Essex County Prosecutor, attorney for respondent (Luanh L. Lloyd, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant, Willie Jackson, appeals from the denial of his petition for post-conviction relief (PCR) without a hearing. On appeal, he raises the following arguments: POINT I
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DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE PROCEDURALLY BARRED FROM CONSIDERATION ON THE MERITS. POINT II DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR COUNSEL'S MISADVICE ON THE EVIDENTIARY NATURE OF HIS CRIMINAL RECORD WHICH EFFECTIVELY COERCED DEFENDANT INTO ACCEPTING A GUILTY PLEA. POINT III DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO ENSURE THE DEFENDANT POSSESSED THE MENTAL CAPACITY TO UNDERSTAND HIS PLEA OFFER AND THE POSSIBLE PENAL CONSEQUENCES OF SUCH AND/OR ARGUE DEFENDANT'S MENTAL HEALTH DISORDER AS [A] MITIGATING CIRCUMSTANCE. POINT IV DEFENDANT'S SENTENCE MUST BE VACATED DUE TO THE IMPROPRIETY OF THE JUDGE'S COMMENTS PRIOR TO IMPOSING SENTENCE AND/OR DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO CHALLENGE THE BIAS VISITED UPON DEFENDANT DURING SENTENCING. POINT V DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND IS THEREFORE ENTITLED TO AN EVIDENTIARY HEARING. We affirm. This matter arises out of an incident occurring on May 20, 2003. At 9:30 a.m. on that day, defendant stole a car parked on Ferry Street in Newark. While the theft was in progress, Arthur Mercies, the father of the owner of the car, spread eagled himself on the car's hood in an attempt to prevent the theft from occurring. However, defendant drove off, and Mercies, who had been clinging to the hood, fell to the roadway, sustaining injuries to his head that led to his death on June 3, 2003. Defendant was later indicted by an Essex County Grand Jury in indictment no. 04-02-455 for first-degree murder, N.J.S.A. 2C:12-1b (count eight); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count nine); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count ten); and third-degree receipt of stolen property, N.J.S.A. 2C:20-7 (count eleven). On February 7, 2005, defendant pled guilty to count one of the indictment, amended to second-degree reckless manslaughter, N.J.S.A. 2C:11-4b, and to count three, carjacking, N.J.S.A. 2C:43-7.2, to be served concurrently with a sentence that defendant was then serving on a conviction for a crime committed in Morris County. Additionally, on the same day, defendant pled guilty to Essex County indictment no. 04-10-3331, charging two counts of thirddegree aggravated assault, 129 N.J. 451, 460 (1992). Further, defendant claims that his argument that counsel had

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misinformed him as to the potential use of his criminal record likewise depended on evidence outside the record and thus could not have been raised on direct appeal. Ibid. To this extent, we agree with defendant, and we therefore address his arguments. We reject defendant's position that counsel was ineffective because he allegedly misadvised defendant as to the potential use of his extensive criminal record, thereby coercing him into accepting the State's plea offer. That claim is not supported by a certification either by defendant or by his trial counsel setting forth the nature of the advice given. Without such a certification, the claim lacks an evidentiary basis, which cannot be supplied by argument, alone. State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999); State v. Gaither, 396 N.J. Super. 508, 514 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). We note additionally that defendant stood trial in December 2003 on charges of receipt of stolen property and eluding. We find it reasonable to assume that the use of prior convictions existing at that time was explained in the course of that trial. We have been offered nothing to suggest that defendant would have failed to recall that explanation or would, two years later, have accepted without question an alleged explanation that was at odds with defendant's prior experience. Defendant next argues that "at the time of plea and sentence, he did not possess the mental capacity in which to make a knowing decision as required by law," that counsel knew or should have known of defendant's diminished capacity to make an informed decision, and counsel acted ineffectively in not bringing defendant's condition to the court's attention. Alternatively, defendant argues if we find him to have possessed the requisite mental capacity at the time of the plea, then counsel was ineffective in failing to raise defendant's longstanding mental condition as a mitigating factor at sentencing. Again, we find evidentiary support for defendant's claim to be lacking. In doing so, we recognize that the presentence investigation report contained defendant's statement that he had been struck on the head at the age of ten; had been prescribed Ritalin, Ducene and Thorazine for lengthy periods; had received counseling for an extended period at University Hospital and for short periods at Fair Oaks and Beth Israel Hospitals; and was presently seeing a psychiatrist every two weeks while in prison. However, no evidence has been presented that would suggest that defendant's mental faculties were impaired at the time he accepted the State's plea offer. Indeed, defendant denied on the record that any such impairment existed. Further, defendant offers no evidence to suggest that, if his mental functioning had not been impaired, he would have rejected the favorable plea offer that he, in fact, accepted. Accordingly, defendant has failed to establish, as state and federal precedent requires, both that counsel was ineffective and that, but for counsel's ineffectiveness, the outcome would have been different. 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.
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42, 58 (1987). We also reject defendant's argument that counsel was ineffective for failing to raise defendant's mental condition as a mitigating factor at sentencing. We find no evidence to have been presented in connection with defendant's plea or his PCR petition that would support the claim that defendant was mentally incapacitated at the time of the crime, therefore permitting a conclusion by the trial judge that defendant failed to appreciate the recklessness of his conduct or that his conduct could otherwise be excused or justified. See 184 N.J. 458 (2005) was withdrawn, since sentencing occurred before the decision in Natale was rendered, and no appeal was taken that would have triggered pipeline retroactivity. (continued) (continued) 13 A-5192-07T4 January 8, 2010 0x01 graphic

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