STATE OF NEW JERSEY VS. TAQUAN K. RANGE (09-03-0083, WARREN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0120-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TAQUAN K. RANGE, a/k/a
NYEEM RANGE,
Defendant-Appellant.
Submitted December 17, 2019 – Decided December 31, 2019
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Indictment No. 09-03-0083.
Joseph E. Krakora, Public Defender, attorney for
appellant (Howard Woodley Bailey, Designated
Counsel, on the brief).
James L. Pfeiffer, Warren County Prosecutor, attorney
for respondent (Dit Mosco, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Taquan K. Range appeals an order denying his petition for
post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Following a jury trial, defendant was convicted of all ten offenses charged
in a Warren County indictment, including aggravated sexual assault, armed
robbery, burglary, terroristic threats, and weapons offenses. Imposing
concurrent terms of imprisonment on each conviction, the judge sentenced
defendant to an aggregate twenty-year prison term subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2.
On direct appeal, we reversed two of the weapons convictions, and
remanded for resentencing, merger of other convictions and a restitution
hearing. State v. Range, No. A-0822-11 (App. Div. Oct. 1, 2014) (slip op. at
13), certif. denied, 221 N.J. 287 (2015). We otherwise affirmed defendant's
convictions and sentence. Ibid.
We incorporate by reference the facts and procedural history set forth in
our prior opinion. Id. at 1-12. In short, defendant and two other men, intent on
beating and robbing "Sammy," a marijuana dealer known to them, happened
upon the wrong apartment. Id. at 4. After the victim – who did not know the
men – answered the door, she was sexually assaulted, threatened at gunpoint,
struck in the head with a gun, and robbed of twenty dollars, jewelry and oatmeal
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cookies. Id. at 5-7. One of the men held a gun to her three-year-old's head. Id.
at 6. Defendant told the getaway driver the woman had performed oral sex on
him while he was wearing a condom. Id. at 8. DNA evidence confirmed his
account. Ibid.
At sentencing, trial counsel commenced his argument in support of
mitigation by directing the judge to defendant's brain injury:
I'm sure the [c]ourt saw in our submission that
when he was quite young Mr. Range was the victim of
a brutal assault, apparently struck repeatedly in the
head with a hammer, such that he sustained a depressed
skull fracture, had to have surgery to relieve pressure
on his brain, and subsequently there's [sic] additional
surgical reports that he had to have surgery that covered
the area of the scalp that had been scarred and left him
traumatized.
Acknowledging counsel submitted medical records of defendant's "very
serious" head injury, the sentencing judge, who had tried the case, "didn't really
attach . . . any weight to that at all." Noting defendant had not asserted a
diminished capacity defense at trial, the judge further found "[t]here was no
evidence that [defendant's] head injury had any permanent effect upon [him] that
would interfere with [his ability to] reason . . . ." Rather, the judge emphasized
the offenses for which defendant was convicted "started out with . . . a
premeditated robbery."
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Defendant filed a pro se PCR petition claiming his trial counsel was
ineffective for failing to present a diminished capacity defense based on
defendant's head injury. Defendant also asserted prosecutorial misconduct
regarding certain testimony adduced at trial. Assigned counsel filed an amended
petition and brief, emphasizing trial counsel failed to submit the report or other
"writing" from the social worker – who had been retained by trial counsel to
conduct a psychosocial evaluation of defendant – in mitigation of his sentence.
In an oral decision, the judge rejected defendant's arguments and denied
PCR. The judge concluded defendant failed to establish a prima facie case
supporting his petition and, as such, a hearing was not warranted.
Pertinent to this appeal, the PCR judge determined defendant "failed to
prov[id]e evidence that the mitigating report would have overcome the high bar"
required to demonstrate trial counsel was deficient, and "failed to articulat e
facts" to demonstrate the sentencing judge would have found mitigating factor
four at sentencing. See N.J.S.A. 2C:44-1(b)(4) (the existence of "substantial
grounds tending to excuse or justify the defendant's conduct"). Instead, the
judge noted counsel argued "forcefully" for mitigation; the sentencing judge
considered defendant's head trauma, "afforded it no weight and found that no
mitigating factors existed."
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Further, in rejecting defendant's PCR claim that trial counsel failed to
present a diminished capacity defense, the judge observed "the record is replete
with references" by defendant which reveal his "reasons or his thought process
involving the assault presented in this case . . . ." According to the judge,
defendant made exculpatory statements and excuses: "I didn't do it, or I did it
because I was young," but there was no evidence of his alleged diminished
capacity in the record.
On appeal, defendant maintains his trial counsel rendered ineffective
assistance, but only challenges the judge's decision regarding his mitigating
factor four argument. Although defendant acknowledges his trial counsel
submitted the hospital records of the beating at sentencing, defendant renews his
argument that trial counsel should have submitted a psychosocial report or
expert testimony from the social worker who prepared the report.
Having carefully considered defendant's arguments in light of the
applicable law, we conclude they lack sufficient merit to warrant extended
discussion in our written opinion. R. 2:11-3(e)(2). We add only the following
brief remarks.
A defendant is entitled to an evidentiary hearing only when he "has
presented a prima facie [case] in support of [PCR]," State v. Preciose, 129 N.J.
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451, 462 (1992), meaning that a "defendant must demonstrate a reasonable
likelihood that his . . . claim will ultimately succeed on the merits." State v.
Marshall, 148 N.J. 89, 158 (1997). For a defendant to obtain relief based on
ineffective assistance grounds, he is obliged to show not only the particular
manner in which counsel's performance was deficient, but also that the
deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466
U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland two-part test in New Jersey).
Defendant failed to satisfy either prong of the Strickland/Fritz test. We
agree with the PCR judge's conclusion that defendant's claims regarding his
mitigating factor four argument were "speculative." As the judge observed, trial
counsel sought mitigation "based on defendant's head injury, provided proof of
the head injury and the trial [c]ourt weighed that evidence appropriately."
Indeed, trial counsel submitted defendant's "actual medical records[,]"
which were "the best evidence of the injury defendant suffered after being hit in
the head . . . ." Although the sentencing judge considered that argument, he
reasonably rejected it. Cf. State v. Dalziel, 182 N.J. 494, 504 (2005) ("[W]here
mitigating factors are amply based in the record before the sentencing judge,
they must be found."). The record simply does not support defendant's
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speculative argument that the unspecified opinion of a social worker expert
would have compelled the sentencing judge to find mitigating factor four.
Notably, at his resentencing hearing before another judge, defendant
stated he had obtained his high school equivalency diploma and was enrolled in
his third semester of college in prison, seeking his associate degree in theology.
Defendant blamed his participation in the crime on alcohol and drugs, not on his
brain trauma.
We therefore conclude that the PCR judge correctly determined defendant
failed to establish a prima facie showing of ineffective assistance of counsel.
Accordingly, an evidentiary hearing was not necessary to resolve defendant's
PCR claims. Preciose, 129 N.J. at 462.
Affirmed.
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