SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0418-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES D. DIXON,

Defendant-Appellant.

______________________________________

Submitted February 2, 2017 – Remanded

Resubmitted August 24, 2017 - Decided

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Indictment 

No. 10-03-0358.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Steven M. Gilson, Designated 

Counsel, on the briefs).

Andrew C. Carey, Middlesex County 

Prosecutor, attorney for respondent (Joie 

Piderit, Assistant Prosecutor, of counsel 

and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

February 23, 2017

August 29, 2017
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This post-conviction relief (PCR) matter returns to us 

following remand proceedings directed by our previous opinion, 

State v. Dixon, No. A-0418-15 (App. Div. Feb. 23, 2017). For 

the reasons that follow, we remand for an evidentiary hearing. 

I

This matter was previously remanded for the reasons set 

forth in our opinion, which need not be repeated at length, but 

for the following essential facts. Following a bench trial, 

defendant was found guilty of second-degree robbery, N.J.S.A.

2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; third-degree 

aggravated assault, N.J.S.A. 2C:12-1(b)(7); fourth-degree 

resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2); fourthdegree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d);

false imprisonment, N.J.S.A. 2C:13-3. Ultimately, defendant was 

sentenced to an aggregate twenty-year term of imprisonment. 

Briefly, during the trial, defendant did not dispute he

entered the victim's home to commit a burglary. In a statement 

provided to the police, defendant stated when he entered the 

victim's home, the victim was descending the stairs. Startled 

by defendant's presence, the victim started to run upstairs but 

slipped and fell down the stairs. While the victim lay injured 

on the floor, defendant took the victim's wallet. Defendant was 

apprehended by the police shortly thereafter. 
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The victim had no recollection of the incident. However, 

the emergency room physician who treated the victim testified he 

sustained blunt force trauma to the face, which caused multiple 

facial fractures. The doctor opined the injury was most likely 

caused by a "fisting" of the face and not by the fall. The 

trial court found the physician's testimony credible and, 

because it established defendant injured the victim during the 

theft, determined the robbery and burglary convictions were 

properly graded as second-degree crimes. See N.J.S.A. 2C:15-

1(a)(1) and (b); N.J.S.A. 2C:18-2(b)(1). 

Significantly, before trial, the State tendered an offer to 

defendant that were he to plead guilty to third-degree burglary, 

N.J.S.A. 2C:18-2, the State would recommend a ten-year term of 

imprisonment and dismiss the remaining charges. In his PCR 

petition, defendant claimed his attorney discouraged him from 

accepting this offer, advising the State had no evidence he 

assaulted the victim because the victim could not recollect the 

incident. Relying on his attorney's advice, defendant spurned

the plea offer and went to trial.

Defendant contends counsel was ineffective for providing 

this advice. Although the victim could not recall what 

transpired during the incident and, thus, could not testify he 

was struck by defendant, defendant claims his attorney knew of
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the physician's opinion regarding the cause of injury, but

failed to advise of the physician's potentially damaging 

testimony. As a result, he argues he was not properly informed 

of the consequences of accepting or rejecting the plea offer. 

Because the PCR court did not decide whether counsel had 

been ineffective in this respect, we remanded this matter for 

the PCR court to address this particular allegation. On remand, 

the court found defense counsel had not been ineffective. The

PCR court's principal reasons were as follows:

[A]lthough the parties had the medical 

discovery, they did not have the benefit of 

the testimony of the emergency room 

physician. . . . So, I don't know how that 

the defense attorney could consider the 

physician's testimony. . . . [But] the 

medical records indicate what the injuries 

were and – opine as to the fact that it was 

from a – a blow from the defendant. . . .

And it appears defense counsel thought he 

had the opportunity to secure a third-degree 

conviction of burglary. And you have here 

where the victim has no memory of what 

happened. There's a lack of evidence. The 

medical doctor conceded the injuries could 

have been received from falling down the 

stairs, which is reasonable doubt. . . . 

And all the indications are that [defense 

counsel] gave considered advice that because 

the victim had no memory, the defendant 

basically said he had nothing to do with him 

falling down the stairs and receiving the 

injury, lack of evidence, keystone for 

finding somebody not guilty, and also 

reasonable doubt as to how the injuries
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. . . were sustained by the victim. Defense 

– defense counsel had a reasonable shot at 

prevailing. 

II

We again set forth the applicable law, recited in our 

previous opinion, when a defendant asserts counsel provided 

ineffective assistance during the plea process. For a defendant 

to obtain relief based on ineffective assistance grounds, he is 

obliged to show not only the particular manner in which 

counsel's performance was deficient, but also the deficiency 

prejudiced his right to a fair disposition of the charges. 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. 42, 

58 (1987).

During plea bargaining, "a defendant has the right to make 

a reasonably informed decision whether to accept a plea offer." 

United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992); see also

State v. Nichols, 71 N.J. 358, 361 (1976). "Prior to trial an 

accused is entitled to rely upon his counsel to make an 

independent examination of the facts, circumstances, pleadings 

and laws involved and then to offer his informed opinion as to 

what plea should be entered." Von Moltke v. Gillies, 332 U.S.

708, 721, 68 S. Ct. 316, 322, 92 L. Ed. 309, 319 (1948). 
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"If a plea bargain has been offered, a defendant has the 

right to effective assistance of counsel in considering whether 

to accept it." Lafler v. Cooper, 566 U.S. 156, 168, 132 S. Ct.

1376, 1387, 182 L. Ed. 2d 398, 410 (2012). To establish 

prejudice, a defendant must show a reasonable probability he or 

she would have accepted the plea, the court would have found the 

plea acceptable, and the result would have been less severe than 

that imposed upon conviction after trial. Id. at 164, 132 S. 

Ct. at 1385, 182 L. Ed. 2d at 407.

Here, it is defendant's contention counsel's advice led to 

his rejecting a plea offer that would have been accepted and 

would have been less severe than the sentenced imposed after 

trial. We make the following observations about the PCR court's

conclusion counsel was not ineffective, a decision made without 

the benefit of an evidentiary hearing. 

First, there is no evidence from the record supplied 

showing defendant was aware of the content of the medical 

discovery. His petition would suggest he was not. 

Second, while the defense attorney may not have known the 

exact testimony the doctor would have provided, if the medical 

records revealed it was the doctor's opinion the victim's 

injuries were caused by a blow, the attorney knew or should have 

known the doctor might testify consistently with the content of 
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those records.1 If the attorney then told defendant there was no 

evidence he assaulted the victim, that raises the question 

whether counsel was ineffective if he advised defendant to 

reject the plea offer. 

Third, as for the PCR court's comment the doctor conceded 

the injuries could have occurred as a result of the victim 

falling down the stairs, we question the relevance of this 

point. What is material is the discovery that existed at the 

time the State made its plea offer, and whether plea counsel 

properly evaluated that discovery and advised defendant of the 

risks and benefits of going to trial, so defendant could make an 

informed decision whether to accept or reject the plea offer. 

Moreover, the court's reference to the doctor's testimony is out 

of context; for the sake of completeness we set forth the 

doctor's opinion on what caused the victim's injuries. 

The doctor testified blunt force trauma can be caused by 

"anything" but, in this matter, the victim's facial fractures 

were "most likely" caused by being "fisted," because there was a 

depression in one of the bones discovered on a MRI of the 

victim's face. She did state one could sustain a similar injury 

as the result of a fall, but "[i]t would have to be a very 

 

1 We have not been supplied with a copy of the medical 

discovery, but the State does not dispute the discovery revealed 

this was the doctor's opinion. 
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focused fall, somebody was intentionally trying to hit that 

area." The doctor also testified it was "possible" to sustain 

the same type of injury if one fell and hit his or her face 

against the edge of a stair, but she was not questioned whether 

it was "probable."

Where a defendant has presented a prima facie claim of 

ineffective assistance of counsel and the asserted facts in 

support thereof are outside the record, an evidentiary hearing 

is required. See State v. Preciose, 129 N.J. 451, 462 (1992). 

We are satisfied an adequate prima facie showing was made to 

mandate an evidentiary hearing in order to afford defendant the 

opportunity to demonstrate to the PCR court a favorable plea 

offer was made, the advice his counsel gave respecting his 

sentencing exposure upon conviction at trial was seriously 

deficient because there was a substantial disparity between the 

advice and the actual exposure, and defendant would and could 

have entered a guilty plea in accordance with the plea offer had 

he been correctly advised. Accordingly, we remand for an 

evidentiary hearing. 

Remanded for further proceedings consistent with this 

opinion.