STATE OF NEW JERSEY v. KENNETH HOUSEKNECHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1139-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH HOUSEKNECHT,

Defendant-Appellant.

October 23, 2013

Submitted October 8, 2013 Decided

Before Judges Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 89-08-000605.

Joseph E. Krakora, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Kenneth Houseknecht appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

We briefly summarize the relevant procedural history and the facts based on the record before us.

In July 1991, following a jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1); first-degree felony murder, N.J.S.A. 2C:11-3a(3); second-degree burglary, N.J.S.A. 2C:18-2; first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. In September 1991, defendant was sentenced to an aggregate term of life imprisonment, with a thirty-year period of parole ineligibility. We affirmed defendant's conviction on direct appeal, State v. Houseknecht, No. A-1352-91 (App. Div. February 23, 1995), and the Supreme Court denied defendant's petition for certification, 141 N.J. 94 (1995).

Our opinion on direct appeal describes the facts which led to defendant's conviction. Defendant, fourteen-years-old and tried as an adult, killed his twelve-year-old neighbor after she encountered him in her family home, which defendant had entered for the purpose of stealing money to pay a debt. Defendant stabbed the young girl ninety-five times, seventy-six times while she was alive. Defendant did not testify at trial, but called psychological and psychiatric witnesses. According to the defense experts, defendant was in a dissociative state at the time of the killing. The State presented its own expert witnesses, who found no evidence that defendant suffered any psychosis or altered state of consciousness. Ultimately, the jury rejected the proffered defenses that defendant was suffering from insanity, diminished capacity, and/or duress when the offenses were committed.

Defendant filed a pro se PCR petition in June 1996. It appears that little or no action was thereafter taken until new counsel was assigned in 2005. In March 2006, a verified PCR petition was filed by counsel, alleging ineffective assistance of counsel and prosecutorial misconduct. New counsel was again assigned in 2009, who in March 2010 filed a supplemental brief. On May 13, 2010, the judge denied defendant's motion to postpone the PCR hearing in order to present the expert testimony of Ruben C. Gur, Ph.D., regarding adolescent brain development.

On October 4, 2010, the court conducted an evidentiary hearing, during which it heard testimony from defendant, and from the attorney who represented him at the juvenile waiver hearing and assisted in his representation at the adult trial. Judge M. Christine Allen-Jackson issued a comprehensive written opinion on November 3, 2010, denying PCR.

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

POINT I

POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED ON THE GROUNDS THAT IMPOSING A LIFE SENTENCE WITH A MANDATORY 30-YEAR PAROLE DISQUALIFICATION PERIOD ON A 14-YEAR-OLD DEFENDANT VIOLATES THE PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT OF THE EIGHTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPH 12 OF THE NEW JERSEY CONSTITUTION.

(a) Imposition of a life sentence with a mandatory thirty year parole disqualifier in this case was inconsistent with contemporary standards of decency.

("Decency Prong").

(b) Imposition of a life sentence with a thirty year parole disqualifier is grossly disproportionate to the offense committed by the fourteen year old defendant.

("Retribution Prong").

(c) Imposition of a life sentence with a thirty year parole disqualifier serves no legitimate penological interest.

("Deterrence Prong").

POINT II

THE PCR COURT ERRED BY DENYING DEFENDANT THE OPPORTUNITY TO PRESENT EXPERT SCIENTIFIC TESTIMONY ON THE ISSUE OF ADOLESCENT BRAIN DEVELOPMENT IN ORDER TO PROVE THAT THE SENTENCE IMPOSED VIOLATES THE EIGHTH AMENDMENT AS APPLIED TO A 14 YEAR-OLD DEFENDANT.

POINT III

POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

(a) Trial counsel failed to object to testimony of the medical examiner, Dr. Claus Speth, as to opinions outside of those associated with the cause of death.

(b) Trial counsel failed to object to prosecutorial misconduct.

(c) Trial counsel failed to object to having written copies of the trial court's jury charge distributed to the jury during deliberations.

POINT IV

POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

Based on our review of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Allen-Jackson in her comprehensive and cogent written opinion. We add the following comments.

Defendant first contends that his sentence of life imprisonment, with a mandatory thirty-year period of parole ineligibility, is illegal as applied to a juvenile because it constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution, and Article I, paragraph 12 of the New Jersey Constitution. Defendant places substantial reliance on Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), decided after the PCR judge's ruling. In Miller, the Court recently held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. Miller, supra, __ U.S. at __, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. The Court noted that:

In neither case did the sentencing authority have any discretion to impose a different punishment. State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate.

[Miller, supra, __ U.S. at __, 132 S. Ct. at 2460, 183 L. Ed. 2d at 414.]

In so ruling, the Court reasoned that such mandatory sentencing provisions "prohibit a sentencing authority from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile." Miller, supra, __ U.S. at __, 132 S. Ct. at 2466, 183 L. Ed. 2d at 420-421.

We find Miller distinguishable in two important respects. First, defendant here did not receive a life sentence without parole. Rather, he was sentenced to a thirty-year period of parole ineligibility. Second, the murder statute in effect at the time of defendant's sentencing in 1991 did not mandate a life sentence; rather, it authorized the court to impose a sentence between thirty years and life imprisonment, in cases where the death penalty did not apply. N.J.S.A. 2C:11-3b.

Unlike Miller, the murder statute here thus did not mandate that defendant receive the "harshest possible penalty" of life imprisonment. In opting to impose a life sentence, as opposed to some lesser term, the sentencing judge carefully weighed the aggravating and mitigating factors. N.J.S.A. 2C:44-1. The judge took into account defendant's age, then indicated "I believe you got the benefit of your youth when the [S]tate was unable to ask for the death penalty. There were two aggravating factors here that could very well have supported a death penalty if you were just a few years older."

"[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." Miller, supra, __ U.S. at __, 132 S. Ct. at 2475, 183 L. Ed. 2d at 430. Here, the sentencing judge considered the statutory mitigating factors, including defendant's age, and concluded that they were "substantially outweigh[ed]" by the aggravating factors, and that a life term was therefore warranted.

We further note that we previously rejected a similar argument in State v. Pratt, 226 N.J. Super. 307 (App. Div.), certif. denied, 114 N.J. 314 (1988). In Pratt, a fifteen-year-old defendant who had been waived to adult court, was convicted of murder following a lengthy jury trial. He was sentenced to the statutorily mandated thirty-year minimum term of imprisonment, without parole eligibility. Defendant contended that his sentence for murder constituted cruel and unusual punishment. We disagreed, concluding:

[W]e find no constitutional impediment barring imposition of the mandatory 30-year sentence on juveniles whose cases have been waived to the adult court and who have been found guilty of murder. Recognizing that "[m]urder is the most heinous and vile offense proscribed by our criminal laws," State v. Serrone, 95 N.J. 23, 27 (1983), it cannot fairly be said that the punishment "violates principles of fundamental fairness," is "grossly disproportionate" to the seriousness of the offense or "goes beyond what is necessary to accomplish any legitimate penal aim."

[Pratt, supra, 226 N.J. Super. at 326-327 (quoting State v. Des Marets, 92 N.J. 62, 82 (1983); and citing State v. Ramseur, 106 N.J. 123, 169 (1987); State v. Muessig, 198 N.J. Super. 197, 201 (App. Div.), certif. den. 101 N.J. 234 (1985)).]

Given the rationale underlying our prior ruling in Pratt, we discern no basis to extend Miller's holding so as to now reach a contrary result.

Defendant's next argument involves his related contention that the PCR court erred in denying him the right to present the expert testimony of Ruben C. Gur, Ph.D., on the issue of adolescent brain development, to establish that the sentence imposed violates the Eighth Amendment, as applied to fourteen- year olds. Specifically, the essence of Dr. Gur's proffered testimony was that for biological reasons, fourteen-year-old juveniles are unable to conform their conduct to the standards of adults because the brain regions most important for regulating impulse control, planning, consideration of consequences, abstract reasoning and moral judgment are not yet fully developed.

Here, defendant's mental state was the subject of considerable expert testimony at trial; indeed it was the linchpin of his defense. The jury rejected defendant's claims of insanity, diminished capacity, and duress. The sentencing court cited defendant's youth, considered it as a mitigating factor, and properly balanced it against the aggravating factors, including the brutal nature of the killing. Even accepting the correctness of Dr. Gur's observations, we find them inconsequential in view of our determination that the sentence here, as applied to defendant, did not constitute cruel and unusual punishment. Hence we perceive no error in disallowing Dr. Gur's testimony at the evidentiary hearing.

We next consider defendant's claims that he received ineffective assistance of counsel at trial because his attorney failed to (1) object to the medical examiner's detailed testimony regarding the number and nature of the victim's stab wounds; (2) adequately communicate with his client; (3) object to various instances of prosecutorial misconduct; and (4) object to the trial court distributing written copies of the jury charge during the jury's deliberations.

We consider a defendant's claim of ineffective assistance of counsel under the standards established under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to establish an ineffective assistance of counsel claim, a defendant must first show "that counsel's performance was deficient." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must then demonstrate "that the deficient performance prejudiced the defense." Ibid.

A defendant is generally entitled to an evidentiary hearing only if he or she makes a prima facie showing of "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J.89, 158 (citing State v.Preciose, 129 N.J.451, 463 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J 199 (1999).

Here, Judge Allen-Jackson conducted an evidentiary hearing on defendant's ineffective assistance of counsel claims, addressed each of them, and ultimately concluded that they were insufficient to establish either prong of Strickland. The judge's analysis was comprehensive and correct. We find no basis to disturb the findings and conclusions contained in Judge Allen-Jackson's fourteen-page opinion.

Finally, defendant claims his appellate counsel was ineffective for failing to raise the Eighth Amendment cruel and unusual punishment issue, as well as the various other alleged trial errors, on direct appeal.

The right to effective assistance of counsel, as set forth in Strickland, applies to appellate counsel. State v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif. denied, 107 N.J. 642 (1987); State v. Guzman, 313 N.J. Super. 363, 374 (App. Div.), certif. denied, 156 N.J. 424 (1998). "[D]efendant must show not only that his attorney's representation fell below an objective standard, but also that he was prejudiced, i.e., but for counsel's unprofessional errors, the result would have been different." Morrison, supra, 215 N.J. Super. at 546.

Defendant has not shown that if counsel had raised these issues, the arguments would have been successful. Further, we again note that Miller, upon which defendant now relies in support of his sentencing challenge, had not yet been decided at the time of the PCR hearing.

Affirmed.