State of New Jersey v. Derrick S. Jackson

NOT FOR PUBLICATION WITHOUT THE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-0163-24

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK S. JACKSON, a/k/a

LOW D,

Defendant-Appellant.

___________________________

Submitted November 6, 2025 – Decided January 14, 2026

Before Judges Gummer and Paganelli.

On appeal from the Superior Court of New Jersey, Law

Division, Camden County, Indictment No. 18-03-0691.

Jennifer N. Sellitti, Public Defender, attorney for

appellant (Susan Brody, Designated Counsel, on the

brief).

Grace C. MacAulay, Camden County Prosecutor,

attorney for respondent (Jason Magid, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Derrick S. Jackson appeals from a March 15, 2024 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. Based on our careful review of the record and the application of well-

established law, we conclude defendant failed to establish a prima facie claim

of ineffective assistance of counsel and affirm.

Defendant was indicted for: first-degree murder, N.J.S.A. 2C:11-3(a)(1)

and (2) and 2C:11-3(b)(4)(g) (count one); second-degree possession of a

handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count five); and

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count

six). In addition, defendant and his co-defendants were charged with: first-

degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery,

N.J.S.A. 2C:15-1(a)(1) (count three); and second-degree conspiracy to commit

armed robbery, N.J.S.A. 2C:5-2(a)(1) and 2C:15-1(a)(1) (count four).

Defendant pled guilty to count one, as amended to first-degree

aggravatated manslaughter, N.J.S.A. 2C:11-4(a)(1) ("recklessly causes death

under circumstances manifesting extreme indifference to human life"). As part

of the plea agreement, the prosecutor recommended the dismissal of all other

charges against defendant. In addition, the prosecutor agreed to recommend a

sentence for a term of twenty-five years imprisonment with 85% parole

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ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant advised he would argue for a "lesser" prison sentence.

During the sentencing hearing, defense counsel acknowledged the

following aggravating factors applied: three, N.J.S.A. 2C:44-1(a)(3) ("[t]he risk

that the defendant will commit another offense"); six, N.J.S.A. 2C:44-1(a)(6)

("[t]he extent of the defendant's prior criminal record and the seriousness of the

offenses of which the defendant has been convicted"); and nine, N.J.S.A. 2C:44-

1(a)(9) ("[t]he need for deterring the defendant and others from violating the

law").

As to defendant's history, which included a prior aggravated assault,

counsel explained that the prior assault occurred when defendant was in school.

He stated defendant had been "in a fight with another boy, an officer came, and

[defendant] pushed the officer away during that fight." Thus, "this wasn't a

situation where [defendant wa]s purposely seeking out a police officer to

attack." Instead, because the "simple assault [was] on a police officer [it was]

elevated to an aggravated assault." 1

1

The sentencing transcript denotes this statement as being said by "[t]he

[c]ourt." However, we glean from the appropriate context that defense counsel

stated it.

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Counsel argued mitigating factor four, N.J.S.A. 2C:44-1(b)(4) ("[t]here

were substantial grounds tending to excuse or justify the defendant's conduct,

though failing to establish a defense"), applied. Counsel noted he had provided

information from the Social Security Administration and Malcraft Medical

Associates, which indicated that defendant: had a low IQ, had difficulty

processing information, and had reading and math skills that were at an

elementary school education level. Counsel argued defendant had "an

intellectual disability, . . . a severe impairment." Further, while noting defendant

graduated from high school, he also contended defendant was "functioning

intellectually and cognitively at a much lower level."

In addition, counsel noted the adult presentence report detailed

defendant's statement that he "began drinking alcohol [at] the age of 13, . . .

smoking marijuana [at] the age of 13, and he started using Xanax at age 17."

Counsel contended defendant "had been using all three" on a daily basis and "up

to and including the date" of this offense.

Counsel argued "collectively," defendant's "severe intellectual

impairment" and his daily alcohol and drug use should "excuse or justify . . .

[his] conduct" despite failing to establish a defense.

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Counsel also argued mitigating factor nine, N.J.S.A. 2C:44-1(b)(9) ("[t]he

character and attitude of the defendant indicate that the defendant is unlikely to

commit another offense"), applied. Counsel presented a letter "from the

program director of PowerCorps Camden" and stated defendant had "expressed

an interest in wanting . . . to resolve this matter." Counsel contended defendant

"wasn't hiding from what he did" and had "expressed remorse."

In addition, counsel argued mitigating factor twelve, N.J.S.A. 2C:44-

1(b)(12) ("[t]he willingness of the defendant to cooperate with law enforcement

authorities"), applied. Counsel acknowledged defendant sought a non-

traditional application of this factor, but noted "there were no motions" filed in

this matter and defendant sought to "accept responsibility at the earliest possible

moment."

Lastly, counsel argued that "impos[ing] a 25-year sentence" would create

a "grave" "disparity" between defendant's sentence and the sentences of the other

defendants. Counsel argued for "a sentence at or near the bottom of the first-

degree range."

The sentencing court did not find mitigating factor four was applicable.

The court considered counsel's arguments concerning defendant's "intellectual

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disabilities, cognitive functioning issues, his processing issues, and his IQ. "

Nevertheless, the court was "not persuaded by that argument."

Moreover, the court did not find mitigating factor nine was applicable.

The court stated it believed defendant felt remorse. However, considering the

presentence report, defendant's history, and other factors, it did "not find that

remorse constitute[d] showing a character and attitude that show[ed] . . . he's

unlikely to commit another crime or another offense." The court considered the

circumstances surrounding the prior aggravated assault but concluded the

conduct rose to aggravated assault as "the [s]tatute is written."

Further, the court did not find mitigating factor twelve applicable. The

court found the factor did not "exist" as to defendant. The court noted co-

defendants "came forward and essentially gave information that helped solve

this case," but defendant had not done so. Therefore, the court, having

"reviewed all the mitigating factors, in particular the factors that were requested

by the defense," found that no mitigating factors applied.

Moreover, the court found disparate sentences were warranted because of

co-defendants' cooperation and "defendant [wa]s in a different position than the

co-defendants because of his action of pulling the trigger that caused the death

of the victim."

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As to aggravating factors, the court found factors three, six, and nine and

weighed each heavily. "In weighing the aggravating and mitigating factors on

a qualitative as well as quantitative basis," the court found that "the aggravating

factors clearly and convincingly substantially outweigh[ed] the lack of

mitigating factors."

The court concluded the plea agreement was "fair and in the interest of

justice." The court sentenced defendant to twenty-five years imprisonment in

accordance with the plea agreement.

Defendant appealed the sentence and the matter was placed on a

sentencing oral argument (SOA) calendar pursuant to Rule 2:9-11 ("In a criminal

. . . action . . . in the Appellate Division in which the only issue on appeal is

whether the court imposed a proper sentence . . . the matter shall be placed on a

sentencing calendar for consideration by the court . . . ."). Counsel argued the

sentencing court erred in finding mitigating factor four did not apply because

the court failed to provide "specific" reasoning and "just said that it wasn't

persuaded and didn't address the intellectual disability, the IQ issues that defense

counsel raised in detail."

In addition, counsel contended the sentencing court erred because it

"believed defendant felt remorse, but didn't find that it amounted to a[]

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mitigating factor." Further, the court "still could have mitigated the sentence

given that it found that . . . defendant did show remorse."

Counsel argued defendant's sentence was disparate to the other defendants

but acknowledged defendant "shot the gun" and the other defendants "were not

armed."

Lastly, while counsel argued before the SOA panel that mitigating factor

thirteen, N.J.S.A. 2C:44-1(b)(13) ("[t]he conduct of a youthful defendant was

substantially influenced by another person more mature than the defendant "),

applied, counsel conceded that it was not raised during the sentencing hearing.

Moreover, counsel stated that while defendant was "technically older," "he was

of a younger age intellectually." Therefore, mitigating factor thirteen was

supported in the record.

In a SOA order, we affirmed the sentence because "we [we]re satisfied

that the sentence [wa]s not manifestly excessive or unduly punitive and d[id]

not constitute an abuse of discretion." State v. Jackson, No. A-1487-18 (App.

Div. May 7, 2019) (order at ¶ 2), certif. denied, 239 N.J. 414 (2019).

Defendant filed the petition for PCR. During oral argument his appointed

PCR counsel argued trial counsel had been ineffective because counsel should

have "explor[ed]" defendant's purported "mental health deficiencies" further or

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arranged to have defendant evaluated to pursue a "diminished capacity" defense

or "mitigate his sentence."

In an oral opinion, the PCR court applied Strickland v. Washington, 466

U.S. 668 (1984), and found:

The defense in connection with this application

has not presented a report from a mental health expert

or an affidavit or a certification from a mental health

expert to support . . . that . . . defendant's condition

would support a diminished capacity defense or an

argument at least.

There is well-settled case law on a PCR petition,

if a defendant claims that his trial attorney should have

called a witness to testify at the trial, the defendant has

to provide legally competent evidence of what that

witness would have said if called at trial. Now here the

contention is not necessarily a trial witness, although

that would have been required if the case had gone to

trial and the defense had wanted to assert a diminished

capacity defense and tried the case itself.

So the same principle applies when it comes to

expert witness . . . and a claim of PCR -- of ineffective

assistance of counsel if the claim is based on a failure

to call or solicit the advice of an expert witness, that

claim fails when the defendant does not provide the

report of such an expert or an affidavit or certification

from that expert explaining what kind of testimony they

would have provided or what kind of report would have

been generated.

So in light of that circumstance the first prong of

Strickland . . . is not met because there's no way to tell

that trial counsel was ineffective in not pursuing that

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because we don't know what an expert report would

have looked like.

Related to that as well is [t]he prejudice prong

can't be established either because if there's no

information about what that person would have written

in terms of an expert opinion, there's no way to

determine whether it would have had an impact on the

outcome of the trial. That burden -- or the proceedings.

That burden is on the defendant.

And so for those reasons the first claim for relief

here, which is that the trial counsel was ineffective for

not securing the services of an expert with regard to the

diminished capacity defense, that claim[] is denied.

As to the sentencing, similarly without a proffer

. . . of a certification or an affidavit or an expert report

about what evidence in support of diminished capacity

short of an actual legal defense, but enough for

mitigating factor four, without that, the claim of

ineffective assistance of counsel on that ground also

fails.

I would note that the trial counsel at the

sentencing did make substantial arguments, relying on

some of the documentation that's relied on in support of

the petition here to argue about the defendant's

diminished capabilities from a cognition standpoint and

otherwise. The trial court considered that information

and declined to find mitigating factor four.

So this is not a situation where trial counsel said

nothing, didn't use the information that they did have.

The argument simply is that they should have gotten

more information. This [c]ourt's ruling is that without

some evidence about what that other information would

have been and what that other opinion would have been,

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. . . that's insufficient to establish ineffective assistance

of counsel on the . . . sentencing claim.

So . . . the fi[na]l[] argument, the cumulative

error argument, neither of the contentions here about

error in terms of preparing to proceed either with trial

or to negotiate a better plea or to advance arguments at

sentencing, since neither of those was at error here -- or

to obtain expert report about diminished capacity for

sentencing since neither of those qualifies as ineffective

assistance of counsel, then the cumulative error

argument fails as well.

Again, as to the sentencing, ultimately the

defendant was sentenced in accordance with the plea

agreement that recommended a 25-year sentence.

Obviously the trial judge was not bound by that. And

defense counsel was not bound and argued in fact

mitigating factors on behalf of the defendant.

So for all those reasons I find that this petition

does not meet the standard for the holding of an

evidentiary hearing since there's no fact dispute at this

point and there has not been a showing of a prima facie

case of ineffective assistance of counsel under

Strickland . . . . Therefore[,] the petition is denied.

On appeal, defendant raises the following arguments for our

consideration:

THE PCR JUDGE ERRED IN FINDING THAT

[DEFENDANT] HAD FAILED TO ESTABLISH AT

LEAST A PRIMA FACIE CASE OF INEFFECTIVE

ASSISTANCE OF HIS PRIOR COUNSEL, WHICH

SHOULD HAVE REQUIRED AN EVIDENTIARY

HEARING.

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A. The Applicable Legal Standards.

B. Counsel's Failure to Have [Defendant]

Evaluated By a Mental Health Expert.

C. Counsel's Failure to Raise Adequate

Mitigation Arguments at Sentencing.

Defendant contends counsel failed "to adequately conduct a pretrial

investigation" because counsel failed "to arrange for him to be evaluated by a

mental health expert to determine his intellectual capacity to form the requisite

mens rea for the charged crime." (Italicization omitted).

Defendant argues he established both Strickland prongs because had an

evaluation "been conducted and if the examiner had determined that [his]

intellectual disabilities . . . would have prevented him from acting with

recklessness under circumstances manifesting extreme indifference to human

life, there [wa]s a reasonable likelihood that he would have proceeded to trial

rather than pleading guilty."

As to his argument concerning counsel's failure to raise adequate

mitigating factors at sentencing, defendant contends "counsel failed to

adequately present evidence to demonstrate to the sentencing court that [he] was

entitled to the application of mitigating factors [f]our and [t]hirteen." Defendant

contends that rather than "gathering adequate records," including the medical

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and vocational reports referenced in the Social Security Administration's

assessment, "counsel presented only very fragmentary information."

Further, defendant contends counsel was ineffective because they failed

to argue the judge placed "undue weight on the aggravating factors." While

recognizing his past included "an aggravated assault," defendant asserts it was

"minimal: pushing an officer at school," but the sentencing court referred to it

as defendant's "history of violent behavior" and "a violent history."

When "the PCR court has not conducted an evidentiary hearing, we review

its legal and factual determinations do novo." State v. Aburoumi, 464 N.J.

Super. 326, 338 (App. Div. 2020). PCR "is New Jersey's analogue to the federal

writ of habeas corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State

v. Preciose, 129 N.J. 451, 459 (1992)). It "provide[s] a built-in 'safeguard that

ensures that a defendant [i]s not unjustly convicted.'" State v. Nash, 212 N.J.

518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)).

"A petition for [PCR] is cognizable if based upon . . . [a s]ubstantial denial

in the conviction proceedings of defendant's rights under the Constitution of the

United States or the Constitution or laws of the State of New Jersey." R. 3:22-

2(a). "Those accused in criminal proceedings are guaranteed the right to counsel

to assist in their defense." State v. Gideon, 244 N.J. 538, 549 (2021) (citing

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U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10). "[I]t is not enough '[t]hat a

person who happens to be a lawyer is present at trial alongside the accused,' . . .

rather, the right to counsel has been interpreted by the United States Supreme

Court and [the New Jersey Supreme] Court as 'the right to the effective

assistance of counsel.'" Id. at 550 (second alteration in original) (quoting

Strickland, 466 U.S. at 685-86).

To establish a prima facie claim for ineffective assistance of counsel, a

defendant must satisfy the two-prong test established in Strickland. 466 U.S. at

687; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-

prong test in New Jersey). "First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment."2 Strickland, 466 U.S. at 687. "[A] court

2

The Sixth Amendment of the Constitution of the United States provides:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have

been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

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must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action

'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)).

Under "the 'second, and far more difficult prong,'" a defendant must show

that his or her defense was prejudiced. Gideon, 244 N.J. at 550 (quoting

Preciose, 129 N.J. at 463). The defendant must demonstrate "that counsel's

errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable." Strickland, 466 U.S. at 687. "Prejudice is not to be

presumed." Gideon, 244 N.J. at 551. "The defendant must 'affirmatively prove

prejudice.'" Ibid. (quoting Strickland, 466 U.S. at 693).

If defendant fails to "make[] both showings, it cannot be said that the

conviction . . . resulted from a breakdown in the adversary process that renders

the result unreliable." Strickland, 466 U.S. at 687.

A defendant "must establish the right to [PCR] by a preponderance of the

credible evidence." Preciose, 129 N.J. at 459 (citing State v. Mitchell, 126 N.J.

process for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.

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565, 579 (1992)). "R[ule] 3:22-1 does not require evidentiary hearings to be

held on [PCR] petitions [and] R[ule] 3:22-10 recognizes judicial discretion to

conduct such hearings." State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999). Nevertheless, PCR "courts ordinarily should grant evidentiary

hearings to resolve ineffective-assistance-of-counsel claims if a defendant has

presented a prima facie claim in support of" PCR. Preciose, 129 N.J. at 462.

"[C]ourts should view the facts in the light most favorable to a defendant to

determine whether a defendant has established a prima facie claim." Id. at 462-

63. "A prima facie case is established when a defendant demonstrates 'a

reasonable likelihood that his or her claim, . . . will ultimately succeed on the

merits.'" State v. Porter, 216 N.J. 343, 355 (2013) (quoting R. 3:22-10(b)).

A defendant "must do more than make bald assertions that he was denied

the effective assistance of counsel." Cummings, 321 N.J. Super. at 170.

Therefore, when a defendant "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.

Applying this well-established law, we consider defendant's arguments.

First, we conclude there is no merit to defendant's argument that counsel failed

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to investigate and have him evaluated by a mental health expert. Defendant's

argument fails because it is not supported by an affidavit or certification or a

report of mental health expert that discloses what would have been revealed if

such an evaluation occurred. Under these circumstances, defendant cannot

establish either Strickland prong.

Second, as to sentencing, we conclude there is no merit to defendant's

arguments concerning counsel's document production to the court nor counsel's

argument as to aggravating factors. Defendant's arguments concerning the

records fails in the absence of a certification or affidavit explaining how the

records reviewed by the Social Security Administration would have been more

persuasive than the materials provided to the court. In the absence of this

information, defendant cannot establish either Strickland prong regarding the

aggravating factors. We add that mitigating factor thirteen was raised during

our sentencing calendar hearing, nevertheless, we affirmed the sentence.

Further, defendant's argument that counsel did not sufficiently oppose the

application of aggravating factors is belied by the record. Indeed, counsel

argued defendant's prior "aggravated assault" should be given less weight

because of the circumstances surrounding the charge.

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To the extent we have not addressed any of defendant's remaining

arguments, we conclude they are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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