STATE OF NEW JERSEY v. WAYNE DOBSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5120-06T45120-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYNE DOBSON,

a/k/a WAYNE DOBSON, JR.,

Defendant-Appellant.

_______________________________________

 

Argued April 12, 2010 - Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 01-06-1898 and 01-06-1802.

Kevin A. Buchan, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Buchan, on the brief).

Roseann A. Finn, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Finn, of counsel and on the brief).

PER CURIAM

Defendant Wayne Dobson appeals from an order entered by the Law Division on February 6, 2007, denying his petition for post-conviction relief (PCR). We affirm.

The following facts are pertinent to our decision. Defendant was charged under Camden County Indictment No. 01-06-1802 with first degree murder, N.J.S.A. 2C:11-3(a)(1) (counts one and two); first degree robbery, N.J.S.A. 2C:15-1 (count three); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five). On September 6, 2002, defendant pled guilty to count one, which was amended to charge first degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1).

At the plea hearing, the court asked defendant if he understood that he had been charged with recklessly causing the death of Louis Carter (Carter) under circumstances manifesting extreme indifference to the value of human life. Defendant said that he understood the charge. Defendant stated that he had discussed the plea with his attorney and his attorney had answered all of defendant's questions. Defendant additionally stated that he was satisfied with the services that his attorney had provided to him.

Defendant then provided the court with a factual basis for his plea. He stated that on December 1, 2000, he came in contact with Carter. Defendant acknowledged that he was in possession of a handgun and it discharged. He admitted that, in his encounter with Carter, he acted recklessly, without regard to the consequences of "who got hurt or what happened[.]" Defendant stated that, when the gun was discharged, Carter was struck by a bullet and died.

On December 6, 2002, the court sentenced defendant. The court found aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court also found mitigating factor six, N.J.S.A. 2C:44-1(b)(6) (defendant was willing to make restitution). The court found that the aggravating factors substantially outweighed the mitigating factors.

The court sentenced defendant in accordance with his plea agreement to twenty-three years of incarceration, with a period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court ordered that the sentence be served concurrently with a sentence previously imposed under Camden County Indictment No. 01-06-1898.

Defendant appealed from the judgment of conviction and challenged his sentence. The appeal was heard on our excessive sentence calendar. We affirmed defendant's sentence. State v. Dobson, No. A-4513-02 (App. Div. Sept. 17, 2003). Defendant thereafter sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied the petition. State v. Dobson, 179 N.J. 309 (2004).

In September 2004, defendant filed a pro se petition for PCR. Defendant filed an amended pro se petition in December 2004. The court appointed counsel, who filed a brief in support of defendant's petition.

The court conducted an evidentiary hearing on the petition and filed an extensive written opinion dated February 6, 2007, in which the court concluded that defendant failed to establish any basis for PCR. The court entered an order dated February 6, 2007, denying the petition. This appeal followed.

On appeal, defendant raises the following issues for our consideration:

[DEFENDANT] WAS DENIED HIS [SIXTH] AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

A. Legal Standard[.]

B. [Defendant] was Denied Competent Counsel because Trial Court Counsel and PCR Counsel Failed to Investigate and Supply Affidavits from a Key Witness Despite the Fact that [Defendant's] Pro Se PCR Brief Advanced this Argument.

C. Trial Counsel's Failure To Address Mitigating Factor Four - [Defendant's] Learning Disability - Was Ineffective Assistance Of Counsel.

1. Mitigating Factor Four[.]

2. [Defendant's] Learning Disability[.]

We have reviewed the record in light of these contentions and conclude that defendant's appeal is entirely without merit.

We therefore affirm the order denying PCR substantially for the reasons stated by Judge Samuel D. Natal in his thorough and comprehensive opinion dated February 6, 2007. We add the following comments.

Defendant argues that he was denied the effective assistance of counsel. In order to prevail on such a claim, a defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court for considering ineffective-assistance-of-counsel claims raised under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

The Strickland test first requires that a defendant establish that his attorney "'made errors so serious that counsel was not functioning as the "counsel" guaranteed [to] the defendant by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The Strickland test next requires that the defendant establish that his attorney's "'deficient performance prejudiced the defense.'" Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). To establish prejudice, the defendant must show that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Here, defendant claims that his trial attorney provided ineffective assistance because he allegedly failed to undertake a thorough investigation of an "eyewitness, Ulysses (Luke) Adams" (Adams). The record of the prosecutor's investigation indicates that Adams told the investigators that defendant had been attempting to rob Carter when he shot Carter.

Defendant asserts that, if his trial attorney had conducted an adequate investigation of Adams' statement, he would have learned that Adams falsely told the police that defendant was trying to rob Carter. He argues that counsel's investigation would have established that there was only a factual basis for a plea to reckless rather than aggravated manslaughter.

The PCR court rejected this argument because defendant failed to present an affidavit or certification from Adams in support of this claim. On appeal, however, defendant included an affidavit from Adams in the appendix to his appellate brief. We granted the State's motion to strike the affidavit from the record because it had never been presented to the PCR court. We therefore decline to consider Adams' assertions.

We are nevertheless convinced that there is no merit to defendant's claim that his attorney erred by failing to adequately investigate the circumstances of Carter's death. The report of the prosecutor's investigation, which was included in the pre-sentence report, indicates that Adams told the investigators that he had been walking with Carter when defendant shot and killed him. Adams said that defendant had demanded money from Carter.

The investigators also obtained a statement from Tamir Pollard (Pollard), who was with defendant at the time Carter was shot. Pollard said that defendant told him that Carter owed him money. Pollard stated that defendant approached Carter and demanded money. According to Pollard, defendant followed Carter onto the porch of his residence. Defendant and Carter began to argue and fight. Pollard heard two gunshots and saw Carter fall.

In our view, defendant failed to establish that his attorney conducted an inadequate investigation of the matter, thereby denying him the effective assistance of counsel. A criminal homicide constitutes aggravated manslaughter if "the actor recklessly causes death under circumstances manifesting extreme indifference to human life[.]" N.J.S.A. 2C:11-4(a)(1). The Code of Criminal Justice defines "recklessness" to mean a conscious disregard of "a substantial and unjustifiable risk that the material element exists or will result from" defendant's conduct. N.J.S.A. 2C:2-2(b)(3). If the risk of death is a probability, the crime is aggravated manslaughter, whereas if the risk of death is merely a possibility, the result is reckless manslaughter. State v. Jenkins, 178 N.J. 347, 363 (2004) (citing State v. Breakiron, 108 N.J. 591, 605 (1987); State v. Pearson, 318 N.J. Super. 123, 136 (App. Div. 1999)).

Had defendant's attorney secured a statement from Adams recanting his initial statement to the police, the credibility of his recantation would have been an issue. Moreover, Pollard had corroborated Adams' initial assertion that defendant had demanded money from Carter.

In any event, regardless of whether defendant was attempting to rob Carter at the time of the incident, it was undisputed that defendant brandished a loaded handgun at Carter when they argued on the porch of Carter's home, and there was a probability that Carter would die if the gun discharged and he was struck by a bullet.

We are therefore convinced that defendant failed to establish that his attorney's investigation of the matter fell outside of "'the wide range of reasonable professional assistance[.]'" Fritz, supra, 108 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). We are additionally convinced that the result here would not have been different if trial counsel had investigated the matter further and obtained a statement from Adams that differed from the statement he had previously given to the investigators.

Defendant also argues that he was denied the effective assistance of PCR counsel because counsel failed to obtain and submit an affidavit from Adams to the PCR court. Again, we disagree. Even if we assume that counsel erred, the result of the PCR proceeding would not have been different if counsel had provided the affidavit to the court.

Defendant additionally contends that his trial attorney erred by failing to properly investigate and seek a finding by the trial court of mitigating factor four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify the defendant's conduct). In support of this claim, defendant submitted to the PCR court a report from Dr. David F. Bogacki (Bogacki), who conducted a psychological evaluation of defendant in June 2006.

At the PCR hearing, the court heard testimony from Bogacki and from defendant's mother concerning defendant's learning deficiencies and psychological disorders. In its opinion, the PCR court assumed that trial counsel had been deficient because he knew of defendant's learning disorder but failed to argue for a finding of mitigating factor four at the sentencing hearing. The PCR court nevertheless determined that defendant failed to establish that he had been prejudiced by counsel's error. The court pointed out that, even if mitigating factor four had been found, it would not have affected the sentence because the aggravating factors "still substantially outweighed the mitigating factors."

The court found that defendant's learning deficiencies had no bearing upon whether he committed aggravated manslaughter and, if mitigating factor four had been found, it would have been afforded little weight on a quantitative as well as qualitative basis. We are convinced that the record fully supports the court's determination.

We have considered the other arguments raised by defendant and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-5120-06T4

May 4, 2010