STATE OF NEW JERSEY VS. WILLIAM F. DYKEMAN (03-05-0435, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-5526-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM F. DYKEMAN,
Defendant-Appellant.
_______________________
Submitted March 9, 2021 – Decided March 29, 2021
Before Judges Yannotti and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 03-05-0435.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Albert Cernadas, Jr., Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant William F. Dykeman appeals from the June 28, 2019 Law
Division order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
We incorporate herein the facts set forth in our opinion on defendant's
direct appeal of his convictions and sentence. State v. Dykeman ("Dykeman
I"), No. A-0445-05 (App. Div. Mar. 4, 2009), certif. denied, 199 N.J. 542 (2009).
The following facts are pertinent to the present appeal.
Defendant was charged in a seventeen-count indictment with various
offenses against four separate women. (slip op. at 1). Following a multi-day
trial, the jury convicted defendant of ten of these charges, including three counts
of second-degree sexual assault, three counts of third-degree criminal restraint,
two counts of terroristic threats, and two counts of unlawful possession of a
weapon. Ibid. The jury acquitted defendant of the remaining seven charges.
Ibid. The trial judge imposed an aggregate sentence of thirty-one years in
prison, subject to twenty seven years of parole ineligibility under the No Early
Release Act, N.J.S.A. 2C:43-7.2. Ibid.Defendant appealed his convictions and sentence. Id. at 2. We affirmed
defendant's convictions, but remanded the matter for resentencing under State
v. Natale, 184 N.J. 458 (2005). On remand, the trial judge reimposed the
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original sentence. Defendant filed an appeal, and we affirmed the sentence.
State v. Dykeman ("Dykeman II"), No. A-6044-08 (App. Div. Feb. 7, 2012),
certif. denied, 212 N.J. 462 (2012).
While defendant was pursuing his sentencing appeal, he filed a petition
for PCR, which the trial court held until the completion of the appeal. State v.
Dykeman ("Dykeman III"), No. A-3566-14 (App. Div. Mar. 23, 2017). After
that process was completed, "[t]he trial judge denied defendant's petition in a
written decision without conducting oral argument." (slip op. at 4). Defendant
filed an appeal from that decision and we reversed and remanded the matter to
the trial court "for oral argument on the petition and a new decision on the
merits." Id. at 8.
On remand, defendant raised a number of arguments in support of his
petition. With specific reference to the present appeal, defendant alleged he was
denied the effective assistance of counsel because: (1) his appellate attorney
failed to argue that he had been deprived of his right to counsel of his choice;
(2) his trial attorney conducted an inadequate investigation and did not
communicate with him during the trial; (3) his trial attorney failed to call "key
witnesses" to testify on his behalf; and (4) his trial and appellate attorneys
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neglected to argue that the prosecutor made improper comments during
summation.
Following oral argument, Judge William A. Daniel considered and
rejected each of these contentions. The judge concluded that defendant failed
to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687
(1984), which requires a showing that trial counsel's performance was deficient
and that, but for the deficient performance, the result would have been different.
In a thorough oral opinion, Judge Daniel first reviewed defendant's claim
that he was denied his right to counsel of his choice at his trial and his appellate
attorney should have raised this allegation in his direct appeal. Defendant's
assertion was based upon the following facts.
Defendant's trial was scheduled to begin on May 3, 2004, but it was
adjourned until June 14 so that a DNA analysis could be performed. On May
24, defendant's attorney filed a motion to be relieved as defendant's counsel. In
response, defendant told the trial judge that he was prepared to retain substitute
counsel and the motion was carried until May 27. On that date, defendant
appeared in court with an attorney, who had not yet agreed to represent him.
The attorney asked that the matter be adjourned until September. The judge
denied this informal request, but adjourned the trial until July 7 to give defendant
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ample time to retain a new attorney if he still wanted to do so. Defendant failed
to engage a different counsel and his original attorney represented him at the
trial.
Based upon these facts, Judge Daniel found no grounds for concluding
that defendant's appellate attorney was ineffective because she did not raise this
issue on direct appeal. Contrary to defendant's claim, the trial judge granted
defendant's request for an adjournment, which provided him with over forty days
to engage a new attorney. He did not. Therefore, appellate counsel's
performance was not deficient.
Judge Daniel next rejected defendant's argument that his trial attorney did
not adequately prepare or present his case. Defendant argued that following the
trial, his attorney was convicted of theft from a client in another matter and
disbarred. He also alleged that the attorney was drinking "heavily" during the
evenings and had told a colleague he was "not performing to the best of his
ability" during the trial.
However, after reviewing the entire trial record "in the light most
favorable to" defendant, Judge Daniel found that regardless of what may have
been happening in the attorney's life outside the courtroom, he provided
adequate legal assistance to defendant during the lengthy trial. The judge noted
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that the attorney filed "numerous motions with the court," including a motion to
dismiss the indictment, a motion for severance, and a Wade1 motion. In
addition, defendant's counsel "delivered an effective opening statement,"
"effectively cross-examined many of the State's witnesses," and "was able to
impeach" the testimony of the State's DNA expert, the victims, and a s ecurity
guard. At the close of the case, the attorney filed a motion for judgment of
acquittal and "[h]is summation was pointedly effective."
Judge Daniel found that as the result of the attorney's advocacy on behalf
of defendant, the jury acquitted defendant of seven counts, including multiple
first-degree kidnapping charges. Thus, the judge ruled that defendant failed to
meet either prong of the Strickland test on this point.
Turning to defendant's third argument, the judge concluded that
defendant's trial counsel was not ineffective for failing to call two witnesses who
he identified during the trial. As set forth in Dykeman I, the charges in this case
"stem[med] from a series of sexual assaults that took place in the industrial
section of Elizabeth between September 2001 and July 2002." (slip op. at 4).
During that time period, four women alleged they were sexually assaulted by a
man who drove a white SUV with out-of-state license plates. Ibid. Prior to the
1
United States v. Wade, 388 U.S. 218 (1967).
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trial, defendant claimed that he consensual sex with one of the women, and
denied any contact with the other three victims. Ibid.All four of the victims testified at trial and identified defendant as the man
who had assaulted them. Defendant then changed his story and testified that all
four victims were prostitutes that he engaged for consensual sex. Id. at 9.
Therefore, the identity of the victims' alleged assailant was no longer an issue.
According to defendant, one of his witnesses would have testified that she
saw a woman she thought might be one of the victims willingly get into a white
SUV. However, the witness was not sure whether this occurred on the date the
victim was assaulted. In addition, the witness obtained some of her information
from a third party, who was not available to testify. The other witness asserted
that during the summer of 2002, the police asked her to falsely claim that she
had been sexually assaulted by a man in a white SUV.
After reviewing their proposed testimony, Judge Daniel determined that
defense counsel was not ineffective because he decided not to call these two
individuals at trial. The testimony of the first witness was vague and based upon
hearsay. The claim made by the second witness was rendered irrelevant when
defendant changed course and admitted to having sexual contact with each of
the victims. The judge also observed that given the strong evidence of
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defendant's guilt, including the testimony of the four victims and the DNA
evidence, the failure to present this testimony would not have affected the
outcome or prejudiced defendant.
In his petition, defendant argued that his trial counsel should have
objected to several comments the prosecutor made during his closing statement
and that, on appeal, his appellate attorney should have argued that these
comments were improper. During summation, the prosecutor twice referred to
defendant as a "monster" and once as a "predator." In discussing the testimony
of one of the victims, the prosecutor also stated:
[The victim] said to the police they couldn't calm her
down. You heard the testimony. You heard them all
testify and we know it as the truth because you heard
-- I would describe it as soulful and the things she said,
the things were disclosed to you, you know, that is the
real person. You know, that is absolute truth. You
don't need anything more than her telling you that he
did this to me . . . .
Defendant argued that the first three remarks were inappropriate
"epithets," while the statement about the victim's testimony was an improper
attempt to vouch for the witness' credibility. Because his trial counsel did not
object to these comments and his appellate attorney did not raise this issue on
appeal, defendant claims he was denied his right to the effective assistance of
counsel.
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Judge Daniel disagreed. He found that the prosecutor's remarks were
fleeting rather than egregious. Thus, even if counsel had objected, the result of
the trial would have been the same. Therefore, there was also no compelling
reason for appellate counsel to raise this issue on appeal.
Because defendant failed to establish a prima facie case of ineffective
assistance of counsel on any of his claims, Judge Daniel determined that an
evidentiary hearing was not required. This appeal followed.
On appeal, defendant raises the same arguments that he unsuccessfully
presented to the PCR judge. Defendant contends:
POINT I
DEFENDANT'S CONVICTIONS MUST BE
REVERSED BECAUSE APPELLATE COUNSEL
WAS INEFFECTIVE FOR FAILING TO PURSUE
DEFENDANT'S [sic] BEING DEPRIVED OF HIS
RIGHT TO SECURE HIS CHOICE OF COUNSEL; IN
THE ALTERNATIVE, THIS MATTER MUST BE
REMANDED FOR AN EVIDENTIARY HEARING
BECAUSE DEFENDANT ESTABLISHED A PRIMA
FACIE CASE OF COUNSEL'S INEFFECTIVENESS.
POINT II
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR FAILING TO HAVE KEY WITNESSES
TESTIFY.
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POINT III
DEFENDANT'S CONVICTIONS MUST BE
REVERSED BECAUSE TRIAL AND APPELLATE
COUNSEL WERE INEFFECTIVE FOR FAILING TO
PURSUE THE PROSECUTOR'S UNDULY
PREJUDICIAL AND CUMULATIVE COMMENTS,
WHICH EMPLOYED EPITHETS TO DEMEAN
DEFENDANT, BOLSTERED THE CREDIBILITY OF
THE ALLEGED VICTIMS, AND INJECTED HIS
PERSONAL BELIEF REGARDING DEFENDANT'S
GUILT; IN THE ALTERNATIVE, THIS MATTER
MUST BE REMANDED FOR AN EVIDENTIARY
HEARING BECAUSE DEFENDANT ESTABLISHED
A PRIMA FACIE CASE OF COUNSELS'
INEFFECTIVENESS.
POINT IV
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
REGARDING INADEQUATE INVESTIGATION
AND INADEQUATE CONSULTATION.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he or she is entitled to the requested
relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,
459 (1992). To sustain that burden, the defendant must allege and articulate
specific facts that "provide the court with an adequate basis on which to rest its
decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
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The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing and the defendant "must do more than make bald assertions
that he was denied the effective assistance of counsel." State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant
evidentiary hearings and make a determination on the merits only if the
defendant has presented a prima facie claim of ineffective assistance, material
issues of disputed facts lie outside the record, and resolution of the issues
necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).
We review a judge's decision to deny a PCR petition without an evidentiary
hearing for abuse of discretion. Preciose, 129 N.J. at 462.
To establish a prima facie claim of ineffective assistance of counsel, the
defendant 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, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987).
There is a strong presumption that counsel "rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not
presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific
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errors of counsel undermined the reliability" of the proceeding. United States
v. Cronic, 466 U.S. 648, 659 n.26 (1984).
Moreover, such acts or omissions of counsel must amount to more than
mere tactical strategy. Strickland, 466 U.S. at 689. As the Supreme Court
observed in Strickland,
[a] fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time.
Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the
defendant must overcome the presumption that, under
the circumstances, the challenged action 'might be
considered sound trial strategy.
[Strickland, 466 U.S. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).]
When a defendant claims that trial counsel inadequately investigated his
case, "he must assert the facts that an investigation would have revealed,
supported by affidavits or certifications based upon the personal knowledge of
the affiant or the person making the certification." Porter, 216 N.J. at 353
(quoting Cummings, 321 N.J. Super. at 170). In addition, deciding which
witnesses to call to the stand is "an art," and we must be "highly deferential" to
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such choices. State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland, 466
U.S. at 689).
Contrary to defendant's contention, an appellate attorney is not ineffective
for failing to raise every issue imaginable. State v. Gaither, 396 N.J. Super. 508,
515 (App. Div. 2007). Instead, appellate counsel is afforded the discretion to
construct and present what the attorney deems are the most effective arguments
in support of the client's position. Ibid.Having considered defendant's contentions in light of the record and the
applicable law, we affirm the denial of defendant's PCR petition substantially
for the reasons detailed at length in Judge Daniel's comprehensive oral opinion.
We discern no abuse of discretion in the judge's consideration of the issues, or
in his decision to deny the petition without an evidentiary hearing. We are
satisfied that the both the trial attorney's and the appellate attorney's
performances were not deficient, and defendant provided nothing more than bald
assertions to the contrary.
Affirmed.
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