NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-2393-18
STATE OF NEW JERSEY,
ALLEN JONES, a/k/a
ALLEN ELIJAH JONES III,
ALLEN JONES III and
ALLEN JONES JR.,
Submitted March 11, 2020 – Decided February 22, 2021
Before Judges Fuentes and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 15-03-0729.
Joseph E. Krakora, Public Defender, attorney for
appellant (Dianne Glenn, Designated Counsel, on the
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Melinda A. Harrigan, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
Defendant Allen Jones appeals from an order of the Criminal Part denying
his post-conviction relief (PCR) petition without conducting an evidentiary
hearing. We affirm.
On March 18, 2015, an Atlantic County grand jury returned an indictment
charging defendant with second degree aggravated assault, N.J.S.A. 2C:12-lb(l),
third degree terroristic threats, N.J.S.A. 2C:12-3b, third degree criminal restraint
with risk of serious bodily injury, N.J.S.A. 2C:13-2a, fourth degree resisting
arrest by flight by purposely preventing or attempting to prevent law
enforcement officers from effecting a lawful arrest, N.J.S.A. 2C:29-2a(2), and
first degree kidnapping by unlawful removal and confinement for a substantial
period of time with the purpose of inflicting bodily injury to terrorize the victim,
N.J.S.A. 2C:13-lb. Other than the charge of resisting arrest, the victim in all of
the charges was "M.R.," a woman whom defendant described as "my baby
Defendant used this phrase to describe the victim. The judge who presided
over the plea hearing and sentenced defendant referred to the victim in the
Judgement of Conviction dated January 26, 2016 as defendant's "former
girlfriend [and] the mother of his children." We identify the victim by her
initials to protect her privacy. See R. 1:38-3(c)(12).
On July 30, 2015, defendant entered into a negotiated agreement with the
State through which he pled guilty to second degree aggravated assault and third
degree criminal restraint with risk of serious bodily injury. Defense counsel
provided the following description of the terms of the plea agreement:
[W]e propose to resolve this case by way of plea of
guilty to count 1 on the indictment, that's an aggravated
assault, serious bodily injury, second-degree offense.
The remaining counts and related charges would be
recommended for dismissal. As far as the
recommendation pursuant to the negotiation, the
defendant stipulates persistent offender status.2 The
court will make findings regarding the extended term.
The sentence range the State is seeking is 10 to 15 years
New Jersey State Prison subject to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2 The State is going to
argue for 15. The plea is entered pursuant to Rule 3:9-
3(b) and I explained to my client that it doesn't take his
right to appeal away, but it does indicate that if he does
exercise his right to appeal of this negotiated plea, then
the State would have the right to withdraw from the plea
agreement, reinstitute all the charges and start the
Pursuant to N.J.S.A. 2C:44-3(a):
A persistent offender is a person who at the time of the
commission of the crime is 21 years of age or over, who
has been previously convicted on at least two separate
occasions of two crimes, committed at different times,
when he was at least 18 years of age, if the latest in time
of these crimes or the date of the defendant’s last
release from confinement, whichever is later, is within
10 years of the date of the crime for which the
defendant is being sentenced.
matter over again with everything back on the table. No
contact with the victim. I have nothing further.
The State also agreed to dismiss the remaining charges in the indictment.
The judge addressed defendant directly at the plea hearing and confirmed on the
record that he understood the terms of the plea agreement, knowingly and
voluntarily agreed to plead guilty, and was satisfied with the performance of
defense counsel. The judge also confirmed that defendant had read and
discussed with defense counsel all of the plea forms, including the form that
described the eighty-five percent period of parole ineligibility restrictions and
the mandatory three-year period of parole supervision under NERA.
In response to the judge's questions, defendant provided the following
factual basis under oath:
THE COURT: Let's talk about count 1, that alleges a
second degree [aggravated] assault. On September 27,
2014, were you in Atlantic City?
THE COURT: Where in Atlantic City were you when
you committed the offense?
DEFENDANT: Harrah's Casino.
THE COURT: And did you . . . attempt to cause or did
you purposely, knowingly or recklessly cause [M.R.]
serious bodily injury?
THE COURT: Did you strike her?
THE COURT: Where did you strike her?
DEFENDANT: In the face.
THE COURT: And as a result of striking in the face,
what kind of injury did she sustain?
DEFENDANT: A bruise over her right eye.
THE COURT: I understand there was some
bleeding as well.
DEFENDANT: There was bruising over the right eye.
THE COURT: And were stitches required, if you know,
to close the wound? 3
The appellate record contains photographs of M.R. taken shortly after she was
treated for her injuries. The photographs show defendant had bruises on her
face and stiches over one eye. Atlantic Care Regional Medical Center records
dated September 27, 2014, document that M.R. suffered "multiple contusions on
right upper extremity, facial contusions and lacerations."
The judge scheduled the sentencing hearing for September 18, 2015.
Defendant returned to court on August 3, 2015, to allow defense counsel to place
on the record that the plea agreement entered into on July 30, 2015, was based
on a misapprehension of defendant's criminal record. Defense counsel
explained that she and the Assistant Prosecutor erroneously believed that
defendant's criminal record made him eligible to an extended term as a
"persistent offender" under N.J.S.A. 2C:44-3(a). The original plea agreement
allowed the State to argue that the court impose an extended term of fifteen years
subject to NERA. Defendant's actual criminal record did not make this
arrangement legally possible.
Defense counsel explained that she "attempted to remedy" this problem
by having defendant plead guilty to an additional count of third degree terroristic
threats. The State would be free to argue that the court sentence defendant to a
ten-year term on the second degree aggravated assault, which is subject to
NERA, to run consecutive to a five-year non-NERA term on the third degree
terroristic threats. As defense counsel noted: "I explained to him that I thought
that it meant him hitting the street sooner." However, defendant rejected this
proposal and asked the court to allow him to plead guilty to second degree
aggravated assault, with a maximum sentence of ten years subject to NERA.
The judge explained to defendant that this arrangement was no longer
available to him. Thus, the only options available were for him to stand trial
before a jury or accept the State's new plea offer. After conferring with his
attorney, defendant agreed "to modify the terms of the plea that was entered into
[on July 30, 2015]." Defendant agreed to stand by his guilty plea of second
degree aggravated assault and plead guilty to third degree terroristic threats.
Under this modified agreement, the State would request that the court sentence
defendant to a ten-year maximum sentence subject to NERA on the second
degree offense, to run consecutive to a five-year flat term on the third degree
offense. Defendant was free to argue that the court impose a lesser sentence.
Defense counsel noted: "My client understands . . . that the NERA sentence will
run first and then the non-NERA sentence would run on top of it for an aggregate
At this point the judge questioned defendant directly, again under oath,
and reviewed with him on the record the ramifications of his decision to accept
the terms of the modified plea agreement. The judge then questioned defendant
to ensure there was a valid and complete factual basis for both the second degr ee
aggravated assault and the third degree terroristic threats.
On January 7, 2016, the court sentenced defendant to a nine-year term of
imprisonment on the second degree aggravated assault count, with an eighty -
five percent period of parole ineligibility and three years of parole supervision
under NERA, to run consecutive to a four-year term on the third degree
terroristic threats count. The court granted the State's motion to dismiss the
remaining counts in the indictment.
Defendant thereafter filed a direct appeal to this court challenging the
sentence under the summary process available in Rule 2:9-11. The appeal came
for oral argument before this court on September 21, 2016. In an order entered
that same day, we remanded for the trial court to reconsider the imposition of
consecutive sentences under the standard established by our Supreme Court in
State v. Yarbough,
100 N.J. 627
, 643-44 (1985). Adhering to this court's order,
the trial court resentenced defendant on November 14, 2016 to a nine-year term,
subject to NERA, on the aggravated assault conviction to run concurrent to a
four-year term on the terroristic threats. Defendant again filed a direct appeal
to this court challenging the sentence through summary process in Rule 2:9-11.
We affirmed the trial court's revised sentence in an order dated on May 3, 2017.
The Supreme Court thereafter denied defendant's petition for certification. State
230 N.J. 559
On October 23, 2017, defendant filed this pro se PCR petition 4 alleging
ineffective assistance of his defense counsel. The court assigned counsel to
represent defendant in the prosecution of his PCR petition. The judge assigned
to adjudicate defendant's petition was not the same judge who presided over the
plea and sentencing hearings. PCR counsel submitted a brief in which he
that trial counsel was ineffective for failing to make a
motion to dismiss the indictment with prejudice
because the prosecutor gave misleading, willfully false
and inaccurate testimony, unsupported by evidence as
to the "assaulting [of] the alleged victim" thereby
resulting in a defective and tainted indictment and
violating the defendant's constitutional right to due
According to PCR counsel, defendant would not have pled guilty if his
trial attorney had filed such a motion to dismiss the indictment with prejudice.
In a separate pro se brief, defendant claimed that defense counsel "took personal
offense to the alleged crime against a woman and because of her biases she did
not provide adequate assistance to him." When asked by the court if defendant's
argument was based purely on gender bias, PCR counsel responded: "It seems
Defendant actually signed the petition on September 26, 2017.
to me the client’s saying that because the injury occurred to a woman and
because of her biases, which have not been defined[.]"
When pressed by the PCR judge to identify what evidence in the record
supported his claim of gender bias by his former defense counsel, defendant
I felt like the biases was 'cause I asked her to do stuff
for me [and] she did not do anything I asked. I felt like
I got railroaded and when I asked her to like do
investigation about the case and she did not do nothing
Because I felt like she wasn’t adequate. She wasn’t
coming to do nothing at all for me. That’s why. I might
have put the wrong word.
The PCR judge rejected defendant's claims of gender bias and ineffective
assistance of defense counsel. The PCR judge held that defendant's principal
argument was based on defense counsel's alleged failure to determine the extent
of the victim's injuries prior to negotiating a plea agreement with the State.
According to defendant, a proper investigation would have revealed that the
victim's injuries were not serious enough to support a finding of aggravated
assault. The PCR judge found the evidence established:
[The] police observed a female passenger [M.R.] curled
up on the floor in a fetal position. [M.R.'s] face was
covered in blood and a gash was over her eye, An
ambulance was called and [M.R.] told the police that
. . . [d]efendant assaulted her by punching her in the
face repeatedly while also kicking and strangling her.
[M.R.] claimed that the assault was so brutal that at one
point, she blacked out. Meanwhile, . . . [d]efendant
took off running down the street away from the police
officers. A chase ensued and when the police
apprehended . . . [d]efendant, he continued to resist by
refusing to get on the ground as instructed. The police
had to forcibly take . . . [d]efendant down to the ground
and used a compliance hold to place him in handcuffs.
The PCR judge did not find any basis to conclude defendant established a
prima facie case of ineffective assistance of counsel under the two-prong
standard established by the United States Supreme Court in Strickland v.
466 U.S. 668
(1984), and subsequently adopted by our Supreme
Court in State v. Fritz,
105 N.J. 42
, 58 (1987). Consequently, the PCR judge
concluded an evidentiary hearing was not necessary.
On appeal, defendant raises the following argument:
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF INEFFECTIVE ASSISTANCE OF
COUNSEL WHICH WARRANTED AN
EVIDENTIARY HEARING AND REVIEW ON THE
We reject this argument substantially for the reasons expressed by Judge
Benjamin Podolnick's comprehensive findings and well-reasoned analysis in his
memorandum of opinion dated November 5, 2018. We add only the following
brief comments. Defendant is guilty of second degree aggravated assault
because there is evidence in the record that established he attempted to cause
serious bodily injury to M.R., or actually caused such injury purposely or
knowingly. N.J.S.A. 2C:12-1b(1). The Criminal Code defines "serious bodily
injury" as "bodily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ." N.J.S.A. 2C:11-1. The medical
evidence of the treatment provided to M.R. supports Judge Podolnick's findings.
The record reviewed by Judge Podolnick shows M.R. suffered a laceration
over one eye that required seven stiches. Her face also showed other contusions
and lacerations. Defendant admitted under oath that he caused these injuries
when he attacked M.R. multiple times with his fists. Defendant physically
resisted the police officers when they responded to the scene of the attack. In
fact, he used so much force that it took several officers to detain and handcuff
In determining a claim of ineffective assistance of counsel in a case in
which a defendant has pled guilty, the issue is whether defendant's counsel
provided misleading or materially incorrect information that results in an
uninformed plea. State v. Nuñez-Valdéz,
200 N.J. 129
, 139-40 (2009); State v.
437 N.J. Super. 102
, 108-09 (App. Div. 2014). We discern no legal or
factual basis to disturb Judge Podolnick's findings and ultimate decision to deny
defendant's PCR petition. Defendant's claims of gender bias by defense counsel
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).