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State v. Diquez


October 20, 2008


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-05-0760.

Per curiam.


Submitted October 8, 2008

Before Judges Cuff and Fisher.

In this appeal, defendant seeks our reversal of an order that denied his petition for post-conviction relief. Because we find no merit in defendant's claim that he was denied the effective assistance of counsel during the sentencing proceedings, we affirm.

Defendant was indicted and charged with the first-degree murder of Douglas Brown on May 3, 1998. The parties negotiated a plea agreement, which called for the State's amendment of the murder charge to aggravated manslaughter; in exchange for defendant's guilty plea to that reduced charge, the State agreed to recommend a prison term not to exceed twenty-five years.

On October 1, 1999, defendant pled guilty to aggravated manslaughter. Defendant acknowledged that, on May 3, 1998, he was given a ride by the victim from New Brunswick to the latter's apartment in Piscataway. Once there, both defendant and the victim engaged in consensual sex. Defendant eventually rebuffed the victim's further sexual advances, which prompted a fight and the victim's death by strangulation at the hands of defendant.

On January 3, 2000, defendant was sentenced to a twenty- year term, which was subject to an 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant's appeal was placed on a sentencing calendar and heard by this court on October 2, 2000. We affirmed by way of an order entered that same day. State v. Diquez, No. A-3346- 99T4 (App. Div. 2000).

Defendant filed a petition for post-conviction relief (PCR) on March 15, 2005. The PCR judge conducted an evidentiary hearing over the course of six days in the summer of 2006. On the last day of the hearing, defense counsel advised the court of the following:

Your Honor, at this juncture in the proceedings, I would like to make an amendment to the [PCR petition], and that amendment is that the defendant does not seek to overturn the conviction. He was convicted and he pled to . . . [an] aggravated manslaughter charge. He does not wish to contest the charge he pled to. However he does want this PCR petition to be directed towards the issue of sentencing, that there was ineffective assistance of counsel in the area of sentencing and particularly referencing the mitigating factors and that ineffective assistance of counsel prejudiced the client, and he requests to be resentenced, but does not request to vacate the guilty plea.

Defendant thus abandoned his request for relief from his guilty plea and thereafter pursued only his claim of the denial of the effective assistance of counsel in the preparation for and during the sentencing proceedings. For the reasons set forth in her written decision of August 15, 2006, the PCR judge denied relief.

Defendant appealed, raising the following single issue for our consideration:


We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

When a defendant claims a deprivation of the effective assistance of counsel, the following test applies:

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. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984).]

This same test is applied when considering whether an accused has been deprived of the state constitutional promise of the effective assistance of counsel. State v. Fritz, 105 N.J. 42, 51 (1987). Defendant contends that application of these principles requires that he be resentenced because, he claims, his attorney should have presented to the sentencing judge: (1) expert testimony to demonstrate his alleged diminished capacity, which would, he claims, support application of mitigating factors three or four, or both, N.J.S.A. 2C:44-1(b)(3) (strong provocation); N.J.S.A. 2C:44-1(b)(4) (grounds to justify or excuse defendant's conduct); and (2) evidence of his alleged cooperation in the seizure of weapons in the Middlesex County Jail as an additional mitigating factor, N.J.S.A. 2C:44-1(b)(12) (cooperation with law enforcement).

Defendant's first argument, regarding his alleged diminished capacity, must be considered in the context of the plea agreement by which defendant limited his criminal exposure for first-degree murder by pleading guilty to aggravated manslaughter. As defense counsel testified at the PCR hearing, he did not "see the necessity to continue along those lines of diminished capacity because we had a plea arrangement that got us to where diminished capacity would get us."

Moreover, the PCR judge heard expert testimony on this point from Dr. Frank Dyer, a psychologist, and made the following findings:

Here, counsel's failure to engage an expert to present an insanity or diminished capacity defense cannot be considered deficient because the record does not contain evidence that would lead competent counsel to feel that such an investigation is necessary or potentially valid. PCR counsel argues that Dr. Dyer's report coupled with [d]efendant's placement in lower D-pod indicated psychological issues. At the hearing, Dr. Dyer specifically rejected any claims of insanity. He said "it is not in the picture." Further Dyer's report did not directly advance evidence of mental deficiency. Dr. Dyer testified at the PCR hearing that he didn't explicitly opine diminished capacity, but provided facts an attorney could argue that [d]efendant could not have had the required mens rea for purposely or knowing conduct. In coming to this conclusion Dr. Dyer testified that where there was a conflict in testimony between what [d]efendant told the police in his statement or what [d]efendant told the doctor, Dr. Dyer took the facts which most closely fit his theory that [d]efendant's behavior was an anomaly: a man who had never been involved with the law and became violent. Dr. Dyer stated he worked backwards from his conclusion to the acceptance of facts. Even some of [d]efendant's statements which didn't fit the expert's theory were discounted or rejected. Specifically, Dr. Dyer rejected the size differential between [d]efendant and the victim and the stated amount of liquor consumed.

In order to accept Dr. Dyer's opinion, the fact finder would have to reject all contradictory statements of [d]efendant which are internally inconsistent with the theory of dependent regression. I cannot make such a finding; therefore, I find the expert report fails based on its supposition of unproven and controversial facts.

The PCR judge's findings and her rejection of Dr. Dyer's opinion -- because Dr. Dyer attempted to fit the facts around the conclusion he desired to reach -- are entitled to our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999).

We also reject the second part of the appeal, in which defendant asserts that his attorney was ineffective because he did not provide the sentencing judge with evidence that defendant had cooperated with law enforcement. The PCR judge found that defense counsel did not then know of facts that would support a claim to mitigating factor twelve. She found that defendant did not provide the information to his attorney at that time because he did not trust him. Again, these findings are entitled to our deference. In this regard, the PCR judge correctly observed, in quoting Dooley v. Petsock, 816 F.2d 885, 890-91 (3d Cir. 1987), cert. denied, 484 U.S. 863, 108 S.Ct. 182, 98 L.Ed. 2d 135 (1987), that "trial counsel cannot be ineffective for failing to raise claims as to which his client has neglected to supply the essential underlying facts when those facts are within the client's possession; clairvoyance is not required of effective trial counsel." Application of that principle was certainly appropriate here.*fn1

To summarize, we have no cause to disturb the PCR judge's determination that defendant failed to present proof of any professional errors in his attorney's preparation for and participation in the sentencing proceedings.


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