STATE OF NEW JERSEY v. JOSHUA M. GAUDETTE

NOT FOR PUBLICATION WITHOUT THE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.

JOSHUA M. GAUDETTE,

a/k/a JOSH RAMIREZ,

Defendant-Appellant.

________________________________________________________________

June 23, 2015

Submitted October 22, 2014 Decided

Before Judges Lihotz and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-05-1295.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

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

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm, substantially for the reasons articulated by Judge John T. Mullaney in his written opinion.

Defendant was convicted by a jury of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2; first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree armed robbery, N.J.S.A. 2C:18-2; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); and certain persons not to have weapons, N.J.S.A. 2C:39-7(b). The sentencing court imposed an aggregate sentence of thirty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a five-year period of parole ineligibility.

Defendant appealed and we affirmed his convictions and sentence in an unpublished opinion. State v. Gaudette, No. A-6535-05 (App. Div. Feb. 23, 2009). The Supreme Court denied his petition for certification. State v. Gaudette, 199 N.J. 519 (2009). The facts underlying the home invasion that was the basis for defendant's convictions are set forth in our opinion and need not be repeated here.

Defendant filed a PCR petition pro se on November 3, 2010. In the section that called for "stat[ing] with specificity the facts upon which the claim for relief is based, legal arguments and all claims," defendant responded, "I will address my issues at a later time when discussed with appointed counsel."

An amended verified PCR petition was filed on behalf of defendant on June 15, 2011, presenting the following issues

POINT I

Defendant was denied effective assistance of counsel as all of his attorneys failed to investigate, obtain, and utilize his medical, counseling and treatment records.

POINT II

Defendant was denied effective assistance of counsel as all of his attorneys failed to consult, retain and utilize an expert for trial.

POINT III

Defendant was denied effective assistance of counsel because all of his attorneys failed to conduct an investigation of defendant's alibi, obtain statements from alibi witnesses, secure their trial testimony, or adequately prepare for trial.

POINT IV

Defendant was denied effective assistance of counsel due to trial counsel's failure to improperly [sic] object to trial, and failing to properly investigate and prepare for trial.

POINT V

Defendant seeks post-conviction relief as he was denied a fair trial as the state withheld Brady material which unfairly prejudiced the defense at trial.

POINT VI

Defendant was denied effective assistance of counsel as trial counsel failed to request proper jury charges.

POINT VII

Defendant was denied effective assistance of counsel due to trial counsel's failure to object to the court's undue and improper failure [sic] influence on the trial.

POINT VIII

Defendant was denied effective assistance of counsel as trial counsel failed to engage in an adequate pre-trial investigation which would have lead [sic] to substantial mitigation factors for presentment at the time of sentencing.

POINT IX

Defendant was denied effective assistance of counsel as none of his attorneys engaged in the proper pre-trial motions that would have ensured a proper, fair, impartial trial.

POINT X

Defendant was denied effective assistance of counsel as all his attorneys failed to investigation and honor his request for a "line-up identification[,"] particularly given that identification was a material issue in the case.

POINT XI

Defendant was denied effective assistance of counsel due to trial counsel's failure to object to the identification testimony of Jessica Palagonia; counsel's failure to request the proper curative instruction; and trial counsel's failure to object to the court's mis-informing [sic] the jury regarding identification issues relating to the defendant and co-defendant.

On March 5, 2012, a letter brief submitted by designated counsel on behalf of defendant presented the following arguments

POINT I

Defendant was denied effective assistance of counsel as all of his attorneys failed to obtain his mental health records which unquestionably would have presented mitigation, if not a defense.

POINT II

The trial court prejudiced the defendant by refusing to grant trial counsel a reasonable adjournment of the trial.

POINT III

Exculpatory evidence existed that should have been investigated and utilized at trial.

POINT IV

Defendant's attorney(s) failed to provide effective assistance of counsel by failing to file a motion to bar evidence, to wit, the bloody footprint.

POINT V

Defendant was denied effective assistance of counsel as counsel(s) failed to file a motion to suppress on behalf of the defendant. Defendant's statements made while in custody and evidence discovered were as a result of an unlawful arrest and therefore "fruits of the poisonous tree[."]

POINT VI

Trial counsel failed to lodge proper objections throughout the trial. Accumulation and effect prejudiced the defendant and denied him a fair and impartial proceeding.

Along with counsel's letter brief, defendant submitted a certification. Notably, at no time in either his initial petition or in this certification does defendant assert his innocence.

In his certification, defendant stated he had no recollection of any interaction with the first attorney assigned to him. He stated that, as a result of information provided by his mother regarding his psychiatric/psychological background, his second attorney scheduled a meeting with him in jail to discuss the potential defense of diminished capacity. At that time, his attorney advised him that she would subpoena records for assessment and that he would have "to plead 'guilty' in order to pursue" that defense. Following an injury, the second attorney was replaced by a third attorney, Donna Wrenn, who, he contended, never addressed obtaining his medical records or spoke to him regarding his psychiatric or psychological history. Defendant stated his communications with Wrenn were inhibited by his incarceration and limited, with long periods of time between visits and written communication.

Defendant stated his family became aware of "a virtually identical crime with strikingly similar suspects occurring weeks before the crime for which [he] was charged" that occurred at a time when he was incarcerated (the Bradley Beach case). He asked Wrenn to investigate those facts, believing it would "help to raise reasonable doubt at trial." Defendant stated Wrenn never obtained jail records to verify his incarceration at the time of the Bradley Beach case.

Defendant stated his case was transferred to Raymond Santiago for trial. Defendant alleged that Santiago met with him only twice for brief periods before trial; that his psychological or psychiatric history was not discussed before trial; that he discussed the Bradley Beach case with Santiago and that, although the "Bradley Beach Discovery" was in his file, Santiago did not pursue the matter further. He also stated it was on the day of sentencing that Santiago asked about the psychiatric conditions mentioned in the presentencing report. However, Santiago failed to raise this issue in mitigation at sentencing.

Judge Mullaney denied defendant's petition by order dated December 4, 2012, and set forth his reasons in a twenty-five page written opinion. The judge concluded that the following issues were procedurally barred: defendant's challenge to his sentence, his arguments relating to the jury instructions and prosecutor's summation, and the denial of his adjournment request. Turning to the claims of ineffective assistance of counsel, Judge Mullaney addressed each of the following claims and found that none suffered from constitutional defect: failures to obtain mental health records and obtain an expert to assert a diminished capacity defense; failure to argue that the court find N.J.S.A. 2C:44-1(b)(4)("substantial grounds tending to excuse or justify defendant's conduct") as a mitigating factor at sentencing; failure to investigate and utilize the Bradley Beach crime; failure to file a motion to suppress blood evidence derived from co-defendant's boot; failure to file a motion to suppress statements made after alleged unlawful arrest; and failure to object to jury instructions and prosecutor's summation.

Defendant presents the following issues for our consideration in his appeal

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO PRESENT RELEVANT TESTIMONY WHICH AFFIRMATIVELY SUPPORTED A THIRD PARTY GUILT DEFENSE.

C. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S DECISION TO FOREGO PRESENTING A DIMINISHED CAPACITY DEFENSE ON HIS CLIENT'S BEHALF, INSTEAD PURSUING A DEFENSE PREMISED UPON HIS CLIENT'S NON-INVOLVEMENT IN THE INCIDENT IN QUESTION.

Defendant thus does not challenge the PCR's court's determination that certain issues were procedurally barred and limits his appeal to two issues. After carefully reviewing the record in light of applicable legal principles, we conclude these arguments lack merit.

To prevail on a claim of ineffective assistance of counsel, defendant must meet a two-prong test, establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l 04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l 05 N.J. 42, 58 (l987).

Addressing the diminished capacity issue, Judge Mullaney discussed in detail the investigation conducted by defense counsel. Defendant's first attorney prepared an interoffice memorandum stating there was a "possible but dubious mental health defense." The memorandum referred to a letter from defendant's mother that discussed defendant's diagnosis and treatment for ADHD and major depression and the fact that relevant records were subpoenaed. The judge further detailed Wrenn's continued exploration of the diminished capacity defense, her communications with defendant and his mother, and defendant's request that Wrenn cease speaking with his family. The judge further noted that defendant "was aware that to pursue a diminished capacity defense he would essentially be required to plead guilty."

Judge Mullaney found that the strategic decision not to pursue a diminished capacity defense "was preceded by a thorough investigation of law and facts and a consideration of all 'plausible options.'" In addition, the judge found that defendant's mental health records do not support a diminished capacity defense. Therefore, Judge Mullaney concluded that the decision not to pursue a diminished capacity defense was not constitutionally deficient. We agree.

Defendant's other appellate argument concerns the failure of counsel to investigate the Bradley Beach robbery to use the crime to attack the credibility of the victims.

Judge Mullaney identified the correct legal standard applicable to a third-party guilty defense, noting that, although such evidence need only raise a reasonable doubt of defendant's guilt, there must be some evidence of third-party guilt to permit the defense to argue the point. See State v. Jimenez, 175 N.J. 475, 486 (2003); State v. Koedatich, 112 N.J. 225, 297-98 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). To establish this, defendant relied upon an alleged similarity in the descriptions of the suspects in both cases and the fact that the victim of the Bradley Beach robbery was a witness in both robberies. Judge Mullaney concluded that defendant failed to establish a sufficient connection between the Bradley Beach robbery and the instant case; that information of the Bradley beach robbery "only raise[d] a bare suspicion on a third-party."

An assertion that an investigation was inadequate must be supported by affidavits or certifications that show what an adequate investigation would have revealed. See R. 3:22-10(c); State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002); State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant has merely relied upon his own certification, claiming a "striking" similarity between the two crimes and descriptions of police reports regarding the Bradley Beach crime he contends support that characterization. We therefore agree with Judge Mullaney's conclusion that defendant "failed to demonstrate that counsel was deficient for not pursuing this defense and that but for this failure, the result of the trial would have been different."

Affirmed.