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State of New Jersey v. Richard Toledo

June 29, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD TOLEDO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-09-1484.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 1, 2012

Before Judges Messano and Espinosa.

Defendant pled guilty to two counts of murder, N.J.S.A. 2C:11-3(a), and one count of kidnapping, N.J.S.A. 2C:13-1(b), pursuant to a plea agreement. The charges arose from his beating two children, ages fourteen and seven, to death with a hammer in the basement of their home where he was renting a room from their mother. He then kidnapped the children's mother. Defendant does not deny his guilt for these offenses but appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Defendant was sentenced to consecutive terms of life imprisonment on the murder charges and a consecutive term of thirty years on the kidnapping count. In addition, the court ordered that he serve eighty-five percent of the life term before becoming eligible for parole on the first murder charge; that there be no parole eligibility on the second murder charge; and that he serve eighty-five percent of his sentence on the kidnapping charge before becoming eligible for parole.

Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed his sentence. State v. Toledo, No. A-0891-08 (App. Div. May 1, 2009). The Supreme Court denied his petition for certification, 200 N.J. 208 (2009).

Defendant filed a pro se petition for PCR on December 30, 2009, in which he argued he was denied the effective assistance of counsel because trial counsel:

(a) failed to explore a defense of diminished capacity, after being informed by the defendant of numerous head injuries he had suffered as a child;

(b) Ordered two psychological evaluations on the defendant, but failed to request any diagnosis and/or results of the psychological evaluations that were done by Dr. Frank J. Dyer, Ph.D., and Dr. Richard Fillippone[;]

(c) failed to make sure that defendant properly understood that he was excepting [sic] a life sentence, that would consequently deprive him of ever being eligible of making it out of prison, knowing that he was suffering from anxiety, depression, and fear, from being assaulted numerous times in the County jail, and consequently being placed in Administrative Segregation due to circumstances beyond his control.

A brief and amended petition were submitted on behalf of defendant in August 2010. In this brief, defendant argued that he was denied the effective assistance of counsel because his attorney "failed to fully explain the plea and insure the plea was knowing and intelligent and not made because the defendant was lead [sic] to believe a plea would result in him being removed from solitary confinement[.]" He also argued that his sentence was unconstitutional.

Defendant submitted a pro se supplemental letter brief in support of his petition. In addition to the arguments raised previously, defendant argued that trial counsel was ineffective in failing to ...


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