Opinion
DOCKET NO. A-3357-13T4
08-05-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM JEROME DUNCAN, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the briefs). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Lihotz. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-02-0121. Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the briefs). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant William Jerome Duncan, Jr., appeals from a January 9, 2014 Law Division order denying his petition for post-conviction relief (PCR) without the benefit of an evidentiary hearing. Defendant maintains he presented a prima facie case to warrant full evidentiary review of his claims of ineffective assistance of trial counsel, whom he asserted neglected to present evidence of his mental health history during sentencing. More specifically, on appeal, defendant argues:
POINT I.In a reply brief, he adds:
THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE LEGAL REPRESENTATION AT SENTENCING.
. . . .
(B) [DEFENDANT'S] TRIAL COUNSEL'S FAILURE TO PRESENT AN ADEQUATE ARGUMENT AT SENTENCING SUPPORTED BY MEDICAL EVIDENCE OF HIS HISTORY OF MENTAL ILLNESS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
TRIAL COUNSEL FAILED TO EFFECTIVELY ARGUE AND PRESENT EVIDENCE THAT [DEFENDANT'S] MENTAL ILLNESS WAS A MITIGATING FACTOR WHEN HE ARGUED FOR SENTENCING AT THE LOWER END.Finally, on July 6, 2015, a supplemental brief was filed by defendant pro se, alleging counsel never reviewed the presentence report with him, counsel should have presented evidence of defendant's mental illness at sentencing, and the sentencing judge failed to state the reasons why he did not apply certain mitigating factors.
We have considered these arguments in light of our review of the record and applicable legal principles. We affirm.
Defendant was indicted for murder after a police investigation into the death of his three-month-old son, who suffered blunt force head trauma. Defendant admitted to police he put the baby to sleep and hours later when he checked on him, the child was unconscious. In his custodial statement, defendant explained the baby hit his head on a piece of furniture when defendant moved him. Defendant retracted this statement in a later written note. He also told his investigator he tripped over the cat while carrying the baby, who hit his head, but seemed uninjured and was responsive after the fall.
Pursuant to a negotiated plea agreement, defendant agreed to plead guilty to an amended charge of aggravated manslaughter, and the State agreed to dismiss all other charges and recommended a twenty-five to thirty-year custodial sentence, although defendant was extended term eligible. During the plea colloquy, defendant's equivocal responses resulted in a recess to allow him additional time to consult with counsel. When the hearing resumed, defendant admitted he pushed the child while the child was atop his chest, causing him to hit his head. He also admitted he did not immediately seek medical assistance after the injury. The plea was accepted.
At sentencing, defense counsel referenced his sentencing memorandum arguing mitigating factors applied to warrant imposition of a sentence at the lower end of the range. The judge concluded aggravating factors one, two, three, six, and nine, N.J.S.A. 2C:44-1(a)(1), (2), (3), (6), (9), substantially outweighed applicable mitigating factors six, eleven, and twelve, N.J.S.A. 2C:44-1(b)(6), (11), (12). He imposed a term of thirty years subject to an 85% period of parole ineligibility, pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2.
Defendant did not file a direct appeal. He timely filed this matter, his first PCR petition.
In his supporting certification, defendant stated he suffered "serious mental health conditions" that predated the incident, which required prior hospitalizations and included suicide attempts. He stated he had previously been prescribed Seroquel, but his family hid his medication. On the night his son died, he "had been awake for three straight days," was "disoriented and unfocused." He suggests this condition explained his failure to seek medical assistance for the baby. He also insisted the fall, resulting in the baby's death, was an accident.
Defendant also submitted copies of various medical records documenting treatment before and after the incident. None of the records include an original mental health diagnosis or treatment review; further, only some of the records prior to the incident include a recitation of medical history referencing mental health.
Finally, defendant certified he was not seeking to withdraw his plea. Rather, he sought review of the imposed sentence. This position was confirmed during oral argument.
Because the PCR court did not conduct an evidentiary hearing, our review is de novo. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
A PCR proceeding "is a defendant's last opportunity to challenge the fairness and reliability of a criminal verdict in our state system. It is a safeguard intended to ensure that a defendant was not unjustly convicted." State v. O'Neil, 219 N.J. 598, 609-10 (2014) (citations and internal quotation marks omitted). Claims of ineffective assistance of counsel are cognizable on PCR, and must be proven by a preponderance of the evidence. See State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); State v. Preciose, 129 N.J. 451, 459 (1992).
Courts normally should grant an evidentiary hearing if the defendant establishes a prima facie case of ineffective assistance of counsel. State v. Goodwin, 173 N.J. 583, 596 (2002); Preciose, supra, 129 N.J. at 462. Whether to hold a hearing on a PCR petition is a matter of judicial discretion. R. 3:22-10(b); State v. Jones, 219 N.J. 298, 311 (2014); Preciose, supra, 129 N.J. at 462. A court need not hold a hearing if it perceives that the hearing would be unhelpful in its analysis of the claims asserted. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
On the other hand, hearings may be required where there is a factual dispute on matters outside the trial record, see Jones, supra, 219 N.J. at 302, 308-09, 316, with factual disputes viewed "in the light most favorable to the defendant." Id. at 311. "If, with the facts so viewed, the PCR claim has a reasonable probability of being meritorious, then the defendant should ordinarily receive an evidentiary hearing in order to prove his entitlement to relief." Ibid.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which our Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Pursuant to that test, defendant must show, first, that his counsel's performance was deficient, and, second, that the deficiencies were so serious that they deprived him of a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. He must do so by presenting more than "bald assertions" that he was denied the effective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "Thus, when a petitioner 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.
As to the first prong, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
A fair assessment of attorney performance requires that every effort be made 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. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .
[Ibid.]
As to the second prong, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696. Thus, to be successful on the second prong, defendant must show a reasonable probability that, but for counsel's errors, the outcome of his trial would have been different. Ibid. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. This two-pronged analysis is "an exacting standard," State v. Allegro, 193 N.J. 352, 367 (2008), and applies equally to convictions after a trial or after a defendant pleads guilty. Gaitan, supra, 209 N.J. at 350-51.
Applying these standards to defendant's petition, we conclude he has not presented a sufficient basis to grant PCR or established the need for an evidentiary hearing. We repeat, defendant does not seek to vacate his guilty plea; he confines his arguments to attacking counsel's performance in failing to thoroughly investigate and present relevant facts that would have affected his sentence.
Whether a defendant pleads guilty or goes to trial, defense counsel has a duty to conduct "reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." State v. Chew, 179 N.J. 186, 217 (2004). Defense counsel's negligence in inadequately conducting pre-trial investigation may give rise to an ineffective assistance of counsel claim. State v. Russo, 333 N.J. Super. 119, 141 (App. Div. 2000) (holding the failure to conduct an adequate pre-trial investigation may result in the reversal of a conviction); see also State v. Porter, 216 N.J. 343, 357 (2013); Preciose, supra, 129 N.J. at 464.
The memorandum submitted on behalf of defendant prior to sentencing included counsel's written presentation seeking application of mitigating factors two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate his conduct would cause or threaten serious harm); four, N.J.S.A. 2C:44-1(b)(4) (factors excused defendant's conduct); eight, N.J.S.A. 2C:44-1(b)(8) (the conduct was unlikely to recur); nine, N.J.S.A. 2C:44-1(b)(9) (defendant is unlikely to commit another offense); eleven, N.J.S.A. 2C:44-1(b)(11) (defendant's imprisonment will cause excessive hardship to his dependents); and twelve, N.J.S.A. 2C:44-1(b)(12) (defendant's cooperation with law enforcement). During oral argument, counsel referenced the arguments set forth in his sentencing memorandum, and maintained the court was not bound by the State's plea recommendation when imposing sentence. Rather, after application of the identified mitigating factors, the judge could sentence defendant at "the lower end of the range" and even had the authority to "drop below that [range] if the [c]ourt so fe[lt]."
Following our review of the entire sentencing record and pleadings, we reject defendant's contention that had counsel "been more forceful" in his arguments, the judge would "have given more weight to the mitigating factors" and entered a shorter sentence. As the PCR judge, who also was the sentencing judge, commented, the court does not always receive sentencing memoranda. In this case, however, counsel's submission and argument "covered all areas." The judge acknowledged he reviewed the presentence report, which included information regarding defendant's difficult childhood and persistent drug use, along with a recitation of his prior mental health history, past suicide attempts, and current depression.
The PCR court, therefore, correctly found defense counsel adequately argued defendant's mental health impacted his conduct. These facts were fully considered and weighed by the judge at sentencing. Accordingly, defendant did not establish a prima facie claim of ineffective assistance of counsel, as he failed to sustain Strickland's first prong. Absent proof of a prima facie basis to grant PCR, an evidentiary hearing is unwarranted. Preciose, supra, 129 N.J. at 462. Defendant's PCR petition was properly denied.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION