STATE OF NEW JERSEY v. RICHARD TUBENS

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4194-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD TUBENS,

Defendant-Appellant.

________________________________________________________________

November 17, 2010

 

Submitted October 26, 2010 - Decided

 

Before Judges Payne and Baxter.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 01-08-0612.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Judah Skoff and Michele M. Vanderstreet, Designated Counsel, on the briefs).

 

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Richard Tubens appeals from a May 12, 2008 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

I.

 

Following a trial by jury, defendant was convicted on May 23, 2002 of one count of third-degree burglary for breaking into the home of Carole McLaughlin, at which time he stole her deceased husband's handgun. The jury also convicted him of robbery for using the stolen handgun to commit a robbery at a pizzeria the next day. In connection with the robbery, the jury convicted him of possession of a handgun for an unlawful purpose and unlawful possession of a handgun. The judge sentenced defendant to a fifteen-year prison term, subject to an eighty-five percent period of parole ineligibility, on the first-degree robbery conviction, and sentenced him to a consecutive four-year term with a three-year Graves Act parole disqualification, see N.J.S.A. 2C:43-6(c), on the burglary charge.

Prior to the trial, the judge conducted a Miranda1 hearing to determine the admissibility of a statement defendant gave to police. In an initial oral statement that was not tape recorded, but which was preceded by Miranda warnings, defendant admitted he had stolen the gun and some jewelry after breaking into the McLaughlin home and had used that gun to commit a robbery at a pizzeria the next night. After re-administering the Miranda warnings, detectives questioned defendant a second time and recorded that statement. Defendant made the same admissions on tape as he had provided in the initial untaped interview.

At the Miranda hearing, defendant asserted he was coerced to make this statement and did not understand his right to have an attorney present. He also testified that he had used cocaine and marijuana and was under the influence of those substances during the interrogation. At the Miranda hearing, Detective Zadroga testified that when he asked defendant whether he agreed to "waive" his rights and make a statement, defendant responded by saying he did not understand what that meant. The detective explained it simply meant that he was willing to make a statement to police. At the conclusion of the Miranda hearing, the judge found defendant was properly advised of his constitutional rights and waived those rights, knowingly, voluntarily and intelligently.

At trial, the State presented the testimony of a detective who had taken a shoe imprint from the area adjacent to the McLaughlin residence and who testified that the shoe was size ten. Defense counsel established that defendant's shoe size was eight and one-half. The defense did not present any expert in the procedures for taking shoe imprints.

At trial, defendant testified that he had bought the jewelry and handgun from a drug dealer he knew. He claimed he gave the handgun to a friend, Dennis Costanzo, and had not seen it again. He denied any involvement in either the burglary or the robbery.

On direct appeal, we affirmed defendant's conviction and sentence. State v. Tubens, No. A-1726-03 (App. Div. June 15, 2005). We rejected defendant's arguments that his statement to police should have been suppressed and his sentence was excessive. (Id. at 6-7). The Supreme Court denied defendant's petition for certification. State v. Tubens, 185 N.J. 267 (2005).

On January 5, 2007, defendant filed a timely PCR petition, in which he asserted first that trial counsel rendered ineffective assistance by failing to obtain the opinion of a shoe imprint expert as well as an intoxication expert. According to defendant, the latter expert would have been able to opine that the cocaine and marijuana defendant had consumed before providing his statement to police interfered with his capacity to knowingly and voluntarily waive his right to remain silent. Defendant also maintained that trial counsel was ineffective in "failing to obtain" a severance of the burglary charge from the robbery charge.2

In a thorough and well-reasoned written opinion, Judge Geiger rejected all three claims. As to the claim that trial should have obtained an intoxication expert, Judge Geiger noted that he had listened to the audiotape of defendant's statement to police and the tape demonstrated defendant was able to effectively "recall, recollect and relate the events" by providing "detailed narratives of the burglary and the robbery" with answers that were "responsive and very specific." The judge also observed that defendant was not "slurring or mumbling his words," his answers were not delayed, he did not ask the questioner to repeat or simplify the questions and provided his answers "coherent[ly]" without needing any prompting or assistance.

Judge Geiger concluded there was nothing about defendant's statement to police that would suggest defendant was too intoxicated to understand his rights or effectively waive them. "On the contrary," according to the judge, defendant was "able to think and express himself clearly." The judge therefore concluded that defendant had not established a prima facie case of ineffective assistance of trial counsel based upon counsel's failure to retain an intoxication expert.

On the issue of trial counsel's failure to obtain a shoe imprint expert, the judge noted there was no need for trial counsel to retain an expert to explain how shoe imprints are taken, how various soils will change the size of a shoe imprint or to challenge the credentials of the State's witness because counsel had "aggressively" cross examined the State's shoe imprint expert on the discrepancy between the shoe imprint impression that measured size ten and the shoe recovered from defendant that was a size eight and one-half. The judge also noted trial counsel established that the detective who had taken the shoe imprint had never, prior to this incident, taken a shoe imprint other than in training at the police academy.

The judge reasoned that had trial counsel obtained a shoe imprint expert, the expert would have been unable to add anything to the effective cross-examination trial counsel had already conducted. For that reason, the judge found defendant had not raised a prima facie case of ineffective assistance related to trial counsel's failure to retain a shoe imprint expert. The judge's conclusion was strengthened by his observation that defendant admitted during his statement to police that the shoes seized by police were his and that he had worn them during the burglary and the robbery. The judge pointed out that the unusual tread pattern of defendant's shoes matched the tread pattern of the imprint.

On appeal, defendant raises the following claims:

I. [DEFENDANT] WAS ENTITLED TO AN EVIDENTIARY HEARING TO ESTABLISH A RECORD OF HIS PRIMA FACIE CLAIM FOR INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

II. [DEFENDANT] MADE A PRIMA FACIE CLAIM FOR INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BASED ON TRIAL COUNSEL'S FAILURE TO INVESTIGATE, AS WELL AS OTHER SIGNIFICANT ERRORS.

 

III. [DEFENDANT] MADE A PRIMA FACIE CLAIM FOR INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BASED ON TRIAL COUNSEL'S FAILURE TO RAISE KEY ARGUMENTS AND DEFICIENCIES AT THE TRIAL LEVEL.

 

IV. [DEFENDANT] HAS A CLAIM FOR INEFFECTIVE ASSISTANCE OF PCR COUNSEL BASED ON PCR COUNSEL'S FAILURE TO RAISE KEY ARGUMENTS AND DEFICIENCIES AT BOTH THE TRIAL AND APPELLATE LEVELS.

 

V. THE CLAIMS OF [DEFENDANT'S] PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).

 

II.

To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To show prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).

Although this court must defer to the trial court's factual findings that underpin its determination, this court owes no deference to the determination itself. State v. Cleveland, 371 N.J. Super., 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Whether the trial court's fact-finding satisfies the applicable legal standard is a question of law subject to plenary review on appeal. Ibid.

In Point I, defendant broadly asserts that because he established a prima facie case of ineffective assistance of counsel, the judge erred by declining to conduct an evidentiary hearing. As this is merely a preliminary argument, we need not address it directly. Instead, we address the issue of whether defendant presented a prima facie case during our review of his four remaining points on appeal.

We therefore turn to Point II, in which defendant maintains that trial counsel rendered ineffective assistance by failing to pursue the failure of police to attempt to lift fingerprints from the iced tea can and the wine bottle that were left on the kitchen counter of the McLaughlin residence by whoever committed the burglary. According to defendant, this was a "significant omission on the part of the police department and trial counsel failed to properly investigate the reasons for the omission or explore possible defenses to the charges based on the failure to obtain key physical evidence." First, we note that this issue was not raised in defendant's PCR petition and defendant is therefore precluded from raising it on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nonetheless, for the sake of complete appellate review, we exercise our discretion to consider the claim.

As we observed in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), a defendant must do more than make a broad assertion that trial counsel's performance was deficient because counsel failed to pursue a particular line of investigation. Defendant must also demonstrate that had such investigation been pursued, it would have resulted in exculpatory evidence. Ibid. Defendant's proofs fall short of the Cummings standard because he has not presented proof showing that had fingerprints been taken from the can or wine bottle, the analysis of those fingerprints would have shown that they belonged to someone other than himself. Thus, because defendant fails to make the showing Cummings requires, he has failed to establish a prima facie case of ineffective assistance of counsel on the fingerprints issue.

Next, defendant maintains that trial counsel was deficient because he failed to investigate defendant's contention that he received the gun and jewelry from a drug dealer3 and that he had not seen the gun after he gave it to Costanzo. Like the fingerprint claim, defendant failed to raise this issue in the Law Division. Defendant's arguments are wholly insufficient to establish a prima facie case. First, defendant still has not identified the person who allegedly sold him the gun and jewelry. He testified at trial that he did not know the person's name. Thus, defendant has made no showing that trial counsel would ever have been able to find the unnamed person or that this person would have been willing to testify concerning events that would have implicated him in the crime of unlawful trafficking in weapons. Defendant's claims fall far short of the showing Cummings requires. In light of defendant's vague and unsupported proofs, we reject defendant's claim that trial counsel rendered ineffective assistance because he failed to investigate the possibility that this unknown individual might have provided exculpatory evidence.

As to the claim that Costanzo was the last person in possession of the gun, and trial counsel was ineffective for failing to pursue such an investigation, defendant has never presented any proof of what Costanzo would have said had he been called as a witness. As we have observed, Cummings requires more. 321 N.J. Super. at 171. We thus reject defendant's arguments respecting trial counsel's failure to investigate possible testimony from Costanzo.

The last argument defendant raises in Point II is that trial counsel was deficient because he failed to call defendant's girlfriend as a witness to corroborate his testimony about the amount of marijuana and cocaine he had used on the day he provided the statement to police. Defendant maintains that had such testimony been presented, his taped confession "might not have been admitted into evidence or, at the very least, the jury would have seen that [he] did not have the mental faculties to completely waive his constitutional rights." As with his claims concerning the fingerprint expert and the drug dealer, defendant has failed to provide any indication of what the girlfriend's testimony would have been had she been called as a witness. Moreover, as Judge Geiger observed in his written opinion, defendant's consumption of cocaine occurred out of his girlfriend's presence. Under such circumstances, her testimony would have added nothing to the Miranda hearing or to the trial. We thus reject defendant's claim that trial counsel was ineffective because he failed to present defendant's girlfriend as a witness.

Defendant makes a number of other claims in Point II. He asserts that trial counsel rendered ineffective assistance because he failed to properly advise defendant concerning his right to refrain from testifying at trial. In particular, defendant asserts that trial counsel did not explain to him the advantages and disadvantages of testifying on his own behalf. Defendant points to the hearing outside the presence of the jury in which he asked two questions, one to the court and one to defense counsel. The following colloquy occurred:

[DEFENSE COUNSEL]: You understand that you do not have to testify; correct?

 

[DEFENDANT]: Yes.

 

[DEFENSE COUNSEL]: Do you understand that if you do not testify that you can ask the court to give an instruction where the jury cannot consider your failure to testify in their deliberations; correct?

 

[DEFENDANT]: What's that mean?

 

[DEFENSE COUNSEL]: That means that the court would instruct the jury that every individual has the right to not testify and the fact that an individual does not testify cannot be held against him. Do you understand that?

 

[DEFENDANT]: Yes.

 

[DEFENSE COUNSEL]: Do you understand that regardless of what my opinion is that you're the one that makes the final decision as to whether or not you want to testify and do you want to testify?

 

[DEFENDANT]: Yes.

 

THE COURT: Do you understand your constitutional right not to testify --

 

[DEFENDANT]: What's the constitutional right?

 

THE COURT: It means a right that's guaranteed by the United States Constitution as one of our fundamental rights in this country that you don't have to testify. Nobody can make you or force you to testify against yourself. And, frankly, I know you're not intending to testify against yourself but what you say may be construed against you. You're certainly . . . going to be subject to cross-examination. Do you understand all this?

 

[DEFENDANT]: Yes.

 

THE COURT: Consequently you cannot be forced to testify, [but] you do have a right to testify. I want you to know if you don't testify, I'm going to tell the jury that they can't use that or hold that against you because you don't have an obligation to come forward and do anything at trial; do you understand that?

 

[DEFENDANT]: Yes.

 

THE COURT: Okay. Now, knowing this, do you still want to testify?

 

[DEFENDANT]: Yes, I have to.

 

THE COURT: Beg your pardon.

 

[DEFENDANT]: I have to.

 

THE COURT: You have to because you feel -- when ["]you say you have to[,"] [you] feel you need to [testify] to present your defense?

 

[DEFENDANT]: Yeah.

 

THE COURT: All right. Does anyone have anything further?

 

[PROSECUTOR]: No, sir.

 

[DEFENSE COUNSEL]: No, Your Honor.

 

The record demonstrates that defendant understood he had a right to remain silent and to refrain from taking the stand in his own defense, but that he felt the State's proofs were sufficiently strong that, to achieve any prospect of an acquittal, it was necessary for him to testify and explain to the jury that he had given the gun to Costanzo and he was not the person who had stolen the gun during the robbery of the McLaughlin residence. Defendant maintains that the fact he asked two questions during the colloquy demonstrates that trial counsel did not explain to him before the colloquy the advantages and disadvantages of testifying.

We are unable to agree with that assertion. Defendant's two questions were limited to the meaning of the term "constitutional right" and to defense counsel's explanation of defendant's right to a jury instruction that the jury could not penalize him if he chose not to testify. When defense counsel provided a clearer explanation of that latter issue, defendant unequivocally answered "yes" to defense counsel's inquiry about whether he understood his right to such an instruction. Thus, nothing in the colloquy establishes that defendant had not had the benefit of a conversation with defense counsel at an earlier point about the advantages and disadvantages of taking the stand.

Moreover, nothing in defendant's initial PCR petition or in his amended petition contains a certification under oath that trial counsel did not explore this issue with defendant. Thus, in the absence of such a certification and because the colloquy does not support defendant's claims, we conclude that defendant has not presented a prima facie case of ineffective assistance of trial counsel in connection with counsel's alleged failure to advise defendant on the advantages and disadvantages of testifying in his own defense.

The last contention defendant presents in Point II is his claim that trial counsel rendered ineffective assistance because he failed to pursue and present a diminished capacity defense. Defendant points to a portion of the Pre-Sentence Investigation, see Rule 3:21-2(a), stating that he dropped out of school in the third grade, has considerable difficulty in reading and writing, spent the majority of his childhood in the custody of the Division of Youth and Family Services, was physically abused as a child, and was classified as "emotionally disturbed and perceptually impaired." The Pre-Sentence Report also noted that defendant has a long history of using cocaine and marijuana and that he had attempted suicide by banging his head against the wall while incarcerated as a juvenile in 1997. The present offenses occurred four years later in May 2001.

Like many of the other arguments defendant has raised on appeal, this too was not raised in the Law Division, but we again exercise our discretion to consider it nonetheless. In support of his argument that trial counsel was deficient because he failed to pursue a diminished capacity defense, defendant presents the conclusory argument that there was a "substantial likelihood that a defense psychiatric expert would have concluded that defendant would not have had the required mens rea to commit the crimes in question after ingesting so many illegal narcotics, in combination with his mental instability." Defendant has provided no evidence, by way of expert report or any other method, to support this claim that had an expert been consulted a favorable report could have been obtained. Thus, his argument is nothing other than the pure conjecture that we held in Cummings, supra, 321 N.J. Super. at 171, must be rejected.

Moreover, it is clear that defendant, while possibly drug dependent, has not established a diminished capacity defense. As the State correctly argues, marijuana and cocaine are not "mind altering drugs" that would affect a person's mental capacity to commit an offense, and a suicide attempt some four years earlier, would certainly not impact defendant's ability to form a criminal intent to commit a burglary or robbery four years later. As we held in State v. Watson, 261 N.J. Super. 169, 179 (App. Div. 1992), a defendant must present more to establish the defense of diminished capacity than limited intelligence, drug dependence and a personality disorder. Instead, he must present proof by expert opinion that the shortcomings interfered with his ability to knowingly or purposely commit the crimes in question. Ibid. In light of the absence of such proof, we reject the claim that trial counsel rendered ineffective assistance by failing to pursue the issue of diminished capacity. Stated differently, without evidence that such a claim could have succeeded, we are unwilling to conclude that trial counsel rendered ineffective assistance by failing to pursue it.

We thus reject all of the claims defendant presents in Point II.

III.

We turn to Point III, in which defendant maintains that appellate counsel rendered ineffective assistance because she failed to argue that: 1) the sentence for robbery, which was in the middle of the sentencing range for that crime, was excessive because the gun displayed was not operable and therefore no threat or chance of injury actually existed; 2) the sentence imposed was excessive in light of the fact that defendant had no prior adult indictable convictions and his twenty-one juvenile offenses were not indicative of a risk of future crimes; and 3) defendant was not properly advised about his right to refrain from testifying, "especially in light of the fact that [defendant] ultimately told the jury that he engaged in a drug dealing transaction to acquire the jewelry previously [stolen by someone else] from the McLaughlin residence."

A defendant has the same right to the effective assistance of counsel on appeal as he has at trial. State v. Guzman, 313 N.J. Super. 363, 372 (App. Div.), certif. denied, 156 N.J. 424 (1998). In judging a claim of ineffective assistance of appellate counsel, the two-prong Strickland test applies. Id. at 374. Thus, to succeed on a claim of ineffective assistance of appellate counsel, a defendant is required to demonstrate not only that appellate counsel should have raised the issue on direct appeal, but also that had counsel done so, the argument would have been successful. State v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif. denied, 107 N.J. 642 (1987).

As to defendant's claim that appellate counsel was ineffective because she failed to raise the issue of defendant not having been properly advised about his right to refrain from testifying, as we set forth earlier, the record simply does not support defendant's underlying assumption that trial counsel never discussed the issue with him. Thus, defendant cannot succeed on the second prong of the Strickland test because he has not demonstrated that if the issue had been raised by appellate counsel, the claim would have been successful.

Moreover, appellate counsel cannot be faulted for failing to raise on direct appeal an issue that could not be resolved based on the trial record alone. Issues of ineffective assistance that require the presentation of evidence lying outside the trial record are best preserved for the PCR stage. State v. Preciose, 129 N.J. 451, 460 (1992). The trial record was insufficient to enable the appellate panel to determine on direct appeal whether trial counsel had discussed with defendant the advantages and disadvantages of taking the stand, as the record contained no certification from defendant on the subject. Therefore, it is unlikely that the issue would have been addressed on direct appeal. Ibid. For that reason, we cannot fault appellate counsel for failing to raise the issue. Before us, defendant has pointed to nothing other than the colloquy itself, and we are therefore able to conclude that defendant has not satisfied the second-prong of the Strickland test because he has not demonstrated that had appellate counsel raised the issue, the claim would have been successful.

Defendant also maintains that appellate counsel rendered ineffective assistance because she failed to present certain arguments to further support her contention that the sentence imposed was excessive. In particular, defendant maintains that because the testimony at trial established that the antique gun stolen from the McLaughlin residence was not loaded, appellate counsel should have argued on appeal that the judge erred by failing to find mitigating factors one and two which are, respectively, defendant's conduct neither caused nor threatened serious harm, N.J.S.A. 2C:44-1(b)(1), and defendant did not contemplate that his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2).

Defendant's argument is meritless. We doubt that the judge would have viewed the gun's unloaded status as a mitigating factor in light of both victims' testimony that they were terrified when defendant pointed the weapon at them. We therefore cannot fault appellate counsel for failing to raise this issue on direct appeal and reject defendant's argument that appellate counsel rendered ineffective assistance by failing to do so.

Next, defendant contends that appellate counsel's performance was deficient because she failed to argue that defendant's twenty-one juvenile adjudications did not establish a likelihood that defendant would commit future crimes, and therefore the judge's finding of aggravating factor three, N.J.S.A. 2C:44-1(a)(3), was improper. This argument is meritless. Obviously, an individual, such as defendant, who engages in repeated conduct that violates the law is a person who presents a risk of committing future offenses. We reject defendant's arguments to the contrary.

The final argument defendant presents in connection with appellate counsel's failure to raise certain sentencing arguments on direct appeal is a claim that appellate counsel was deficient because she failed to argue that mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), the lack of any prior record, was applicable in light of defendant having no adult convictions. This claim is meritless as mitigating factor seven should not be found where a defendant has a record that includes juvenile adjudications of delinquency. See State v. Torres, 313 N.J. Super. 129, 162 (App. Div.), certif. denied, 156 N.J. 425 (1998). We have carefully considered defendant's remaining contentions concerning appellate counsel's alleged ineffectiveness concerning the sentence imposed.4 We conclude that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

In Point III, defendant also maintains that appellate counsel was ineffective because she failed to raise on direct appeal the judge's failure to sua sponte redact from the audiotape of defendant's statement that was played to the jury the detective's "gratuitous" comment at the beginning of the tape. The detective stated, "This is a voluntary statement of Richard Tubens." Even if we were to conclude that appellate counsel was deficient for failing to raise this issue, the second-prong of the Strickland test is not satisfied because the judge instructed the jury that it was their obligation to decide whether the statement was voluntary. Under such circumstances, we are unable to conclude that had appellate counsel raised the issue, it would have been successful.

We thus reject all of the claims defendant advances in Point III.

IV.

We turn to Point IV, in which defendant maintains that PCR counsel rendered ineffective assistance. This claim was not advanced before the trial judge and consequently he had no opportunity to address it. Although it would be appropriate for us to direct defendant to file a supplemental petition addressing any allegations of ineffective assistance by PCR counsel, the record is sufficiently developed to permit us to dispose of this claim. Defendant points to PCR counsel's failure to obtain expert reports from a shoe imprint expert or from an expert on diminished capacity. He maintains that his claim of trial counsel's ineffectiveness on these issues was doomed by PCR counsel's failure to demonstrate that such favorable opinion testimony was available had trial counsel made the effort. As we have noted, the subject of obtaining a shoe imprint from the soil is not so esoteric that a jury needed expert opinion to help it decide the issue. Moreover, trial counsel's cross-examination on the subject was so effective that expert opinion would have added little, if anything, to the jury's understanding of the issue.

As to PCR counsel's failure to retain an expert on diminished capacity, we doubt that PCR counsel would have been able to obtain such a report in light of the uncertainty about how much cocaine and marijuana defendant had actually ingested on the day of the robbery and in light of the case law establishing that lack of formal education has no bearing on the capacity to form the purposeful or knowing state of mind necessary for the commission of a crime. See Watson, supra, 261 N.J. Super. at 179. We thus reject defendant's claim that PCR counsel rendered ineffective assistance by failing to obtain an expert report on diminished capacity.

In Point IV, defendant also maintains that PCR counsel was ineffective because he failed to raise the issues that we have identified in this opinion as not having been advanced in the Law Division. We need not determine whether PCR counsel was deficient for failing to raise these issues, as we have already concluded that these issues lack merit. Thus, even if PCR counsel was deficient for failing to raise them, the second Strickland prong is not satisfied because defendant was not prejudiced by any such omission.

We thus reject the claims defendant advances in Point IV.

V.

In Point V, defendant maintains that PCR counsel rendered

ineffective assistance because he failed to incorporate by reference the claims defendant had advanced in his pro se petition. See State v. Webster, 187 N.J. 254, 257 (2006) (requiring PCR counsel to, at a minimum, present defendant's pro se PCR claims). The State concedes that PCR counsel's failure to do so violates the standard established by the Supreme Court in Webster. The State maintains that we should order a limited remand to enable the Law Division to address this claim or, alternatively, we should address the issue ourselves based upon the record presented.

Defendant's sole claim in his pro se PCR petition was that because Mrs. McLaughlin's son, who was a Millville police officer, participated in the investigation and was present at the Millville Motor Inn when defendant was arrested, an impermissible conflict of interest tainted his arrest. This argument is meritless. Suffice it to say, the jury was the ultimate factfinder and concluded, based upon the proofs presented at trial, that defendant was guilty of the burglary beyond a reasonable doubt. Under such circumstances, it matters not that Officer McLaughlin participated in the investigation. Moreover, defendant points to no irregularity in the evidence or in the proofs that would cause us to conclude that Officer McLaughlin's mere presence at the scene violated defendant's rights. We therefore reject the claim defendant advances in Point V.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 As this latter claim is not briefed or advanced before us, we deem it abandoned. See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 155 n.2 (App. Div. 2005).

3 Although defendant's brief refers to a drug "dealer," defendant testified at trial that he obtained the gun from a "feen," which he defined as a "drug user."

4 Defendant maintains that appellate counsel should have raised on direct appeal trial counsel's failure to argue at sentencing that defendant's psychological problems, lack of education and addiction to narcotics constituted mitigating factors.