April 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL DICKERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Accusation No. 06-01-0020.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2012
Before Judges Sabatino and Fasciale.
This is an appeal of the denial of post-conviction relief ("PCR"). Defendant Michael Dickerson was charged in 2006 with first-degree attempted murder of his wife, who he had shot twice in the stomach after they had an argument, and a second-degree weapons offense. He had prior convictions that made him subject to a mandatory extended term for a Graves Act offense. See N.J.S.A. 2C:43-6(c) and 2C:44-3(d).
Pursuant to a written plea agreement, defendant pled guilty to first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, which carried a minimum term of twenty years with an eighty-five percent parole disqualifier pursuant to N.J.S.A. 2C:43-7.2, plus a concurrent seven-year term with five years of parole ineligibility on the weapons charge. In March 2006, defendant was sentenced to the twenty-year custodial term, as called for under the plea agreement.
Defendant then filed an appeal of his sentence, which was heard by a panel of this court on the excessive sentencing oral argument ("ESOA") calendar in March 2007. We sustained the sentence, rejecting the argument of defendant's appellate ESOA counsel that the sentence was excessive and that defendant should have been sentenced one grade lower to a second-degree offense.
After the Supreme Court denied certification, State v. Dickerson, 192 N.J. 70 (2007), defendant filed a PCR petition. He alleged in his petition, among other things, that his prior counsel was ineffective in failing to take advantage of his diagnosed heart ailment by either (1) taking the case to trial and presenting a defense of diminished capacity resulting from the heart condition and other medical ailments, or, alternatively, (2) arguing at sentencing for a lesser term in light of his medical problems. Defendant further contended that his counsel was ineffective in failing to argue that his conduct was, at most, provocation/passion manslaughter rather than murder. After considering the parties' written submissions, Judge Sheila Venable*fn1 denied the petition.
On appeal, defendant raises the following arguments:
THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.
1. Defendant established at least a prima facie case of ineffective assistance of counsel.
2. Remand is required to further evaluate whether defendant's deteriorating health condition merits a change of confinement.
We reject these contentions, essentially for the reasons cogently set forth in Judge Venable's letter opinion issued on May 11, 2009. We add only a few brief comments.
A person accused of crimes is constitutionally guaranteed the effective assistance of legal counsel in his defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, ___ S. Ct. ___, ___, ___ L. Ed. 2d. ___, ___ (2012) (slip op. at 3-4); Missouri v. Frye, 566 U.S. ___, ___, ___ S. Ct. ___, ___, ___ L. Ed. 2d. ___, ___ (2012) (slip op. at 8).
In reviewing claims of ineffectiveness, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds by State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).
Here, as Judge Venable aptly noted, the plea transcript shows that defendant elected to take the plea offer against the advice of his trial attorney, who had urged him to reject it. There is no competent evidence presented that defendant's trial counsel failed to explore any viable defenses. In particular, it is entirely conjectural that defendant's heart ailment would have supported a claim of diminished capacity for shooting his wife twice in the stomach.
We also reject defendant's claim that he would have successfully mounted a provocation/passion defense to explain his use of deadly force to respond to his wife's alleged sudden movement of a frying pan she was holding. The plea transcript reflects that defendant's trial attorney reviewed possible defenses with him, but defendant nevertheless insisted on avoiding a trial. The factual basis that he provided under oath to the court made no mention of the frying pan, nor any menacing gesture by his wife. Instead, defendant admitted that he shot her with an intent to kill her, with no suggestion that he had acted out of passion or self-defense.
In addition, defendant received the minimum sentence for the first-degree mandatory extended term of twenty years. Defendant has not shown with "reasonable probability" that the State would have agreed to such a sentencing downgrade, or that the trial court would have adopted a downgrade. Lafler, supra, 566 U.S. at ___, ___ S. Ct. at ___, ___ L. Ed. 2d at ___ (slip op. at 4) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). His claims of ineffectiveness amount to no more than "bald assertions" lacking in merit. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Given defendant's failure to set forth a prima facie case of ineffectiveness, there was no need for the trial court to have conducted a plenary hearing on the PCR petition. See State v. Preciose, 129 N.J. 451, 462-64 (1992). Oral argument on the PCR application, which had been fully briefed, was unnecessary. See State v. Mayron, 344 N.J. Super. 382, 387-88 (App. Div. 2001).
Equally unavailing is defendant's claim that his prior counsel was ineffective in failing to argue that his heart condition and other medical problems comprised a mitigating factor for sentencing purposes. His PCR counsel supplied various medical records to the trial court in support of that argument, which show that defendant now suffers from, among other things, a deteriorating heart condition, hepatitis C, and a high tumor marker.
As Judge Venable noted in her PCR ruling, "any heart condition or other disease [defendant] may have had at sentencing and during the appeal would not be enough to warrant a change or reduction in sentence[.]" We concur.
Although defendant shot his wife shortly after being discharged from the hospital for a heart attack, nothing in the record shows that his heart condition caused his mental -- as opposed to his physical -- health to deteriorate at the time the shots were fired. There was no certification supplied from a mental health professional in support of the PCR petition.*fn2
Moreover, as we already have emphasized, defendant's trial counsel ably negotiated, within the constraints of the law and the proofs, and in light of defendant's clear resistance to going to trial, a plea in which the State acceded to the statutory minimum term for a first-degree crime. We are not persuaded that any further advocacy, even if it had spotlighted defendant's medical problems, would have produced a more favorable outcome.