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


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  •                                       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    NOT FOR PUBLICATION WITHOUT THE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
    A-0120-18T4
    2
    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."
    A-0120-18T4
    3
    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."
    A-0120-18T4
    4
    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.
    A-0120-18T4
    5
    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
    A-0120-18T4
    6
    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.
    A-0120-18T4
    7
    

Document Info

Docket Number: A-0120-18T4

Filed Date: 12/31/2019

Precedential Status: Non-Precedential

Modified Date: 12/31/2019