STATE OF NEW JERSEY v. DIETRICK DODD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DIETRICK DODD,

Defendant-Appellant.

__________________________________________________

November 8, 2013

Submitted October 29, 2013 Decided

Before Judges Fisher and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-02-0330.

Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Caitlin J. Sidley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On October 15, 2008, a Howell homeowner reported to police that someone had broken into his home, resulting in a physical altercation that left the victim bleeding from an area near one ear, from various scratches and from a bite mark on his hand. The victim explained to police that defendant had placed him in a headlock and body slammed him to the ground and also, during this melee, that defendant grabbed an end table with which he unsuccessfully attempted to strike the victim.

Defendant was later arrested and charged with: second-degree burglary, N.J.S.A. 2C:18-2; first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). By agreement, defendant entered a plea of guilty to first-degree armed robbery and, in accordance with the prosecution's recommendation, was sentenced to a twelve-year prison term subject to an eighty-five percent period of parole ineligibility; the other charges were dismissed.

Defendant did not file a direct appeal. On August 10, 2011, defendant filed a post-conviction relief (PCR) petition, arguing:

I. COUNSEL FAILED TO PROPERLY PREPARE ON PETITIONER'S BEHALF BY NEGLECTING TO FILE A MOTION DISMISSING THE INDICTMENT PRIOR TO ADVISING PETITIONER AS TO HIS PLEA OPTIONS BASED UPON THE INCONSISTENCIES WITH RESPECT TO "THE DEADLY WEAPON."

II. COUNSEL FAILED TO PROPERLY PREPARE ON PETITIONER'S BEHALF BY NEGLECTING TO INVESTIGATE WITNESSES PRIOR TO ADVISING PETITIONER AS TO HIS PLEA OPTIONS.

III. COUNSEL FAILED TO RECOGNIZE AND ARGUE THAT THE INJURIES SUSTAINED BY THE VICTIM DO NOT SUPPORT A FINDING OF A FIRST DEGREE CRIME AS THE ASSAILANT WAS NOT ARMED WITH A DEADLY WEAPON THAT WAS INTENDED TO INFLICT SERIOUS BODILY OR LIFE THREATENING INJURY.

IV. COUNSEL FAILED TO PROPERLY PREPARE ON PETITIONER'S BEHALF BY NEGLECTING TO FILE A SUPPRESSION MOTION OF THE STATEMENT OBTAINED BY POLICE WITH RESPECT TO THE USE/WITHDRAWAL OF HEROIN.

V. COUNSEL WAS INEFFECTIVE FOR FAILING TO ARGUE THAT THE TABLE WAS NOT A WEAPON USED TO COMMIT THE CRIME AND THAT THE CRIME SHOULD HAVE BEEN SENTENCED AS A SECOND DEGREE OFFENSE SINCE THE TABLE WAS USED IN SELF-DEFENSE.

VI. COUNSEL WAS INEFFECTIVE FOR FAILING TO REVIEW THE GRAND JURY TRANSCRIPT AND FILE A MOTION TO DISMISS THE INDICTMENT BASED UPON THE STATE'S INFLAMMATORY COMMENT THAT THERE WAS A WEAPON USED DURING THE COURSE OF THE ALLEGED CRIME.

Judge Richard W. English rejected defendant's argument that the factual basis provided when the guilty plea was entered was insufficient and denied the motion for the reasons set forth in his oral decision of April 12, 2012.

Defendant appeals the denial of his PCR petition, arguing in a single point:

THE LOWER COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

We reject this argument and affirm.

Defendant argued in the trial court in the context of an ineffectiveness claim that, in the language of N.J.S.A. 2C:15-1(b), the evidence only supported a finding of a second-degree robbery, not first-degree robbery to which he pleaded guilty. Stated another way, defendant argued that his trial attorney was ineffective by failing to persuasively argue or pursue the dismissal of the charge of first-degree robbery because the facts, in defendant's view, did not demonstrate that, "in the course of committing the theft" defendant "attempt[ed] to kill anyone, or purposely inflict[ed] or attempt[ed] to inflict serious bodily injury, or [was] armed with, or use[d] or threaten[ed] the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). Judge English cogently found, however, with reference to N.J.S.A. 2C:11-1(c) and State v. Rolon, 199 N.J. 575 (2009), that the end table wielded by defendant during the melee in the victim's home could constitute a deadly weapon within the meaning of the statute. The judge explained how the victim was "prone" on the floor, having already sustained "serious injuries," when defendant attempted to swing the table at the victim, who was able to avoid serious bodily injury by stopping the table with his foot. Indeed, as defendant himself acknowledged when answering a question from his attorney while providing a factual basis for his guilty plea, "an end table or the leg of an end table could be a deadly weapon, in other words, [could] cause a fatal injury if [he] had actually managed to strike the homeowner with it." Consequently, we agree that the record did not support defendant's contention that his attorney was ineffective in failing to pursue a different outcome or in counseling entry into a plea agreement that called for defendant's guilty plea to first-degree robbery because those efforts would have proven unsuccessful.

We, thus, reject defendant's arguments and affirm substantially for the reasons set forth in Judge English's thorough and well-reasoned oral decision.