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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, ...