State of New Jersey v. Robert F. Iverson

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3531-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT F. IVERSON, a/k/a ROBERT F. BLAKE, and ROBERT IVERSON, Defendant-Appellant. __________________________ Submitted September 24, 2026 – Decided October 6, 2026 Before Judges Mawla and Chase. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 17-03- 0259. Jennifer N. Sellitti, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Jennifer Davenport, Attorney General, attorney for respondent (Regina M. Oberholzer, Deputy Attorney General, of counsel and on the briefs). Appellant filed a supplemental brief on appellant's behalf. PER CURIAM Defendant Robert Iverson appeals from a February 23, 2024 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. We detailed the underlying facts of this matter in a prior appeal affirming defendant's conviction and sentence. State v. Blake, Nos. A-1554-18, A-2739- 18, and A-3183-18 (App. Div. Feb. 17, 2022) (slip op. at 3-15). To summarize, defendant's son, Daiquan Blake, attended a baby shower at a home the victim shared with her husband and got into an altercation with a guest and left. Daiquan1 armed himself and returned to the victim's residence with a group, including defendant and Robert Blake, defendant's other son. The victim and her husband were outside their residence when Daiquan fired at them and struck and killed the victim. Defendant and Robert were tried together separately from Daiquan. Multiple eyewitnesses testified at trial, some of whom placed defendant at the scene. Although defendant denied he was present, the State adduced expert 1 Because Daiquan shares the same surname as his brother, we use their first names to differentiate them. We intend no disrespect. A-3531-24 2 testimony analyzing cell phone data showing he was present with the group that returned to the residence. During trial, the defense successfully moved to exclude evidence the victim died from the gunshot. Defendant's counsel argued defendant was charged with a conspiracy offense, not homicide, murder, or a weapons offense. Thus, if the jury knew the victim had died, the prejudice to defendant would be "overwhelming" and "substantially outweigh the probative value." Defense counsel argued the jury would be "overwhelmed" by the burden of this information and "feel, well, then people have to pay for that and the only people that would pay are the three [d]efendants here." The trial judge granted the motion in part permitting the State to introduce evidence a gun was fired and struck the victim in the chest, but barring evidence she died of her injuries unless the defense opened the door. The defense sought reconsideration of this ruling. It argued the court should limit the evidence to the fact that a gun was fired in the direction of a person. The judge denied the motion. The jury convicted defendant of second-degree conspiracy to commit aggravated assault and attempting to cause serious bodily injury. N.J.S.A. 2C:5- 2(a)(1) and N.J.S.A. 2C:12-1(b)(1). At sentencing, the judge found aggravating A-3531-24 3 factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9) applicable, and no mitigating factors. Defendant received a seventeen-year sentence subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant raised several points on direct appeal, including challenging his sentence. He claimed his sentence was unjustly disparate from his co- defendants and the court abused its discretion by imposing an excessive sentence. Blake, slip op. at 38. Defendant contested the judge's findings under aggravating factors three and nine and claimed the judge should have found mitigating factors two, five, and eight, N.J.S.A. 2C:44-1(b)(2), (5), and (8), "[t]he defendant did not contemplate that [his] conduct would cause or threaten serious harm; . . . [t]he victim of the defendant's conduct induced or facilitated its commission; . . . [t]he defendant's conduct was the result of circumstances unlike to recur." Id. at 38-39. We rejected these arguments noting defendant stipulated to the application of the three aggravating factors and, notwithstanding the stipulation, the judge cited evidence in the record to support finding the aggravating factors and no mitigating factors. Id. at 39. The judge's findings showed defendant's sentence was not disparately harsher because his "long criminal history showed he was a A-3531-24 4 persistent offender and was extended term eligible pursuant to N.J.S.A. 2C:44 - 3(a)." Id. at 40. Defendant filed a timely PCR petition arguing trial counsel was ineffective for moving to limit the facts related to the victim's shooting because it prevented the jury from considering the totality of the circumstances relating to her death and deprived him of a fair trial. He argued cumulative errors by trial counsel showed he had ineffective assistance of counsel. And trial counsel was ineffective at sentencing for failing to dispute the applicability of the aggravating factors and the weight accorded them, which resulted in an excessive sentence. The PCR judge found defendant did not show how the exclusion of facts surrounding the victim's murder impacted the jury or would have led to a different result if those facts were admitted. The judge concluded it was a valid trial strategy to "limit hurtful facts." The cumulative error claim failed because defendant failed to "provide clear evidence to establish what specific alleged compoundable errors were committed by the trial attorney." The judge found "no evidence" documenting the cumulative error and concluded the claims were bald assertions. A-3531-24 5 As for the sentencing related PCR claims, the judge first observed we had reviewed the claims of an excessive sentence in the first appeal. Even so, the sentencing transcript showed defense counsel advocated for mitigating factors two, five, and eight. The judge concluded "[t]he advocacy demonstrated by trial counsel during the sentencing process was fair and just to . . . defendant." On appeal, defendant raised the following points through counsel: POINT I. DEFENDANT HAS MADE A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL FOR COUNSEL HAVING THWARTED HIS ABILITY TO PRESENT A VIABLE DEFENSE AND FOR FAILING TO ADEQUATELY REPRESENT HIM AT THE TIME OF SENTENCE (A) APPLICABLE LAW. (B) DEFENDANT HAS MADE A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL FOR HAVING FILED A MOTION TO LIMIT FACTS SURROUNDING THE MURDER OF THE VICTIM[,] WHICH PREJUDICED DEFENDANT'S ABILITY TO PRESENT HIS DEFENSE AND PREVENTED THE JURY FROM ASSESING DEFENDANT’S GUILT ON THE TOTALITY OF CIRCUMSTANCES. (C) DEFENDANT HAS MADE A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL FOR STIPULATING TO THE APPLICATION OF AGGRAVATING FACTORS AND A-3531-24 6 INADEQUATELY ARGUING MITIGATING FACTORS. Defendant's self-represented brief raises the following arguments: POINT I: RESENTENCING IS REQUIRED BECAUSE . . . SENTENCING TO AN EXTENDED TERM AS A PERSISTENT OFFENDER VIOLATES THE FIFTH[,] SIX[TH,] AND FOURTEENTH AMENDMENT[S]. POINT II: [DEFENDANT] WAS DENIED [HIS] CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL [UNDER THE SIXTH] AND [FOURTEENTH AMENDMENTS]. HE SHOULD THEREFORE BE GRANTED A RE- SENTENCING HEARING. I. PCR is a defendant's final chance "to raise a constitutional challenge to the fairness and reliability of" State criminal proceedings. State v. Hess, 207 N.J. 123, 144 (2005); see also State v. Nash, 212 N.J. 518, 540 (2013). However, it "is neither a substitute for direct appeal, Rule 3:22-3, nor an opportunity to relitigate cases already decided on the merits, Rule 3:22-5." State v. Preciose, 129 N.J. 451, 459 (1992); see also State v. Echols, 199 N.J. 344, 972 (2009). To succeed on a claim of ineffective assistance of counsel, a defendant must establish both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 A-3531-24 7 N.J. 42, 58 (1987) by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 349-50 (2012). A defendant must demonstrate "counsel's performance was deficient" and their errors were "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687 . "[T]he proper standard for attorney performance is that of reasonably effective assistance." Ibid. Thus, an attorney's performance may not be attacked unless it was not "'within the range of competence demanded of attorneys in criminal cases'" and "fell below an objective standard of reasonableness." Id. at 687-88 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). In evaluating the first Strickland prong, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. A reviewing court is required to make "every effort . . . to eliminate the distorting effects of hindsight." Ibid. It must also "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). A-3531-24 8 Under the second Strickland prong, a defendant must "affirmatively prove" with "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Gideon, 244 N.J. 538 , 551 (2021) (quoting Strickland, 466 U.S. at 693-94 ). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. (quoting Strickland, 466 U.S. at 694 ). We review the denial of a PCR petition without an evidentiary hearing for an abuse of discretion. State v. Hand, 480 N.J. Super. 15 , 26 (App. Div. 2024) (citing State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013)). A judge's legal conclusions, however, are reviewed de novo. Id. at 27 (citing State v. Harris, 181 N.J. 391, 419 (2004)). Pursuant to these principles we affirm substantially for the reasons expressed by the PCR judge. We add the following comments to further elucidate the claim raised in Point I.B. of defendant's brief. Defendant argues the defense theory at trial was that he was not present at the scene and not involved in a conspiracy resulting in the victim's death. He claims that to pursue this defense, it would have been necessary for the jury to hear testimony from witnesses about facts pertaining to the victim's death. But defense counsel moved to preclude this evidence. If counsel had not done so, A-3531-24 9 the jury would have understood defendant was not present because there would have been no testimony placing him at the scene. Defendant claims during sentencing his attorney admitted it was a mistake not to admit the evidence about the victim's shooting. Defense counsel said, "we had this situation where the defense was on needles because they—we were concerned about opening the door. Frankly, as it turned out, maybe we would have been better off if the door had been opened and we dealt openly with the death of the individual." Defendant claims defense counsel's reference to "they—we were concerned" demonstrates someone other than his attorney made the decision to exclude the evidence, namely, his co-defendant's attorney. Therefore, defendant asserts, there was nothing strategic about the decision. This is especially so because there is no evidence counsel conducted an adequate pretrial investigation or allowed defendant to participate in his own defense before counsel moved to preclude the evidence. We are unconvinced by these arguments. We must "make every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." State v. Hernandez-Peralta, 261 N.J. 231 , 251 (2025) (omission in original) (emphasis A-3531-24 10 added) (quoting State v. Pierre, 223 N.J. 560, 579 (2015)) (internal quotation marks omitted). When defendant's counsel moved to exclude the evidence he provided a valid rationale, namely, that the evidence of the victim's death would lead the jury to make defendant pay for the death. Counsel's concerns and strategic decision are not evidence of ineffective assistance of counsel because the conspiracy charge and fact and expert evidence presented against defendant amply implicated his involvement without having been the shooter. See Blake, slip op. at 10-13, 29-32. Thus, it was reasonable for counsel to avoid having the jury learn the victim died as well. There is no evidence the exclusion of evidence about the victim's death was prejudicial to the defense. Considering the jury heard the victim was struck in the chest by bullet the additional mention of her death would only have hurt the defense. The exclusion of this evidence did not prevent the defense from cross-examining witnesses and asking them who was present and whether defendant was at the scene. Defendant's argument the motion was made by or for his co-defendant's benefit lacks merit and is belied by the record. The motion was made by defendant's counsel and argued extensively by him first and then joined by co- defendant's counsel. A-3531-24 11 Affirmed. A-3531-24 12