STATE OF NEW JERSEY v. LAVOUNT PETERSON

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1001-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LAVOUNT PETERSON, a/k/a
LAMONT BARB, CRIP, LARRY
FENNELL, LAURENT, MAN,
LEVANT PETERSON, LEVAUNT
PETERSON, L DAURRELL
PETERSON, and DIRALE
PETERSON LEVAUNT,

     Defendant-Appellant.
______________________________

                   Submitted September 15, 2020 – Decided September 23, 2020

                   Before Judges Fisher and Gilson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 96-09-1143.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).
            Lyndsay V. Ruotolo, Acting Union County Prosecutor,
            attorney for respondent (Albert Cernadas, Jr., Special
            Deputy Attorney General/Acting Assistant Prosecutor,
            of counsel and on the brief).

PER CURIAM

      Defendant Lavount Peterson appeals from an order denying his petitio n

for post-conviction relief (PCR) following an evidentiary hearing. We affirm.

                                       I.

      In 1998, a jury convicted defendant of first-degree murder,  N.J.S.A.

2C:11-3(a)(1) and (2), and related conspiracy and weapons offenses.          The

evidence at trial established that defendant stabbed the victim, who was a friend

and neighbor, seven times.

      Defendant was sentenced to life imprisonment with thirty years of parole

ineligibility. He filed a direct appeal, and we affirmed his convictions and

sentence. State v. Peterson, No. A-6938-97 (App. Div. June 21, 2000). The

Supreme Court denied his petition for certification.  165 N.J. 605 (2000).

      In November 2000, defendant, representing himself, filed a PCR petition.

He was assigned counsel and, following various procedural delays, the petition

was denied in an order entered on August 6, 2010.

      Defendant appealed, making various arguments. We rejected most of

those arguments but remanded for an evidentiary hearing on the sole issue of

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whether trial counsel was ineffective in not presenting a diminished capacity

defense based on defendant's mental health conditions. State v. Peterson, No.

A-2758-10 (App. Div. Oct. 29, 2012).

      A four-day evidentiary hearing was conducted in late 2014 and early 2015.

Two witnesses testified: defendant and his trial counsel.

      Trial counsel testified from memory because his trial file could not be

located. He explained that he was aware of defendant's psychiatric disorders

and substance abuse, wanted to pursue a diminished capacity defense, and

retained a psychiatrist to examine defendant. Defendant, however, refused to

answer the psychiatrist's questions.

      Defendant testified that he did not cooperate with the psychiatrist because

his counsel had not informed him of the psychiatrist's scheduled visit and had

previously instructed him not to talk to anyone else about his case. Trial counsel

could not recall exactly what happened next but testified that he would not have

stopped pursuing the diminished capacity defense without defendant 's informed

agreement. He vaguely recalled discussing the defense with defendant after

defendant refused to talk with the psychiatrist, and that defendant did not want

to pursue the psychiatric diminished capacity defense.




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       In contrast, defendant testified that after he refused to talk with the

psychiatrist, he spoke to his trial counsel via telephone and instructed him to

reschedule the psychiatrist because he wanted to pursue a mental health defense.

Defendant also testified that the psychiatrist never came back, and that counsel

told him at a subsequent, in-person meeting that the psychiatrist could not help

him.

       After hearing the evidence, the PCR court heard oral arguments from

counsel on May 5, 2015. The court questioned PCR counsel concerning the

need for an expert report to support defendant's claim that he had a viable mental

health diminished capacity defense. The PCR court then gave PCR counsel time

to obtain such an expert and submit a report. Counsel ultimately informed the

court that no report would be presented.

       On October 20, 2015, the PCR court entered an order and written opinion

denying defendant's PCR petition. The court found that defendant had failed to

establish either prong needed to show ineffective assistance of counsel.

Concerning the first prong, the court found that defendant had failed to establish

that his trial counsel had failed to perform below professional norms. In that

regard, the PCR court credited trial counsel's testimony that he would not have




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abandoned a diminished capacity defense without defendant's informed

agreement. The PCR court did not accept defendant's contrary testimony.

      Addressing prong two, the PCR court found that without an expert report,

defendant could not establish prejudice because he had no evidence showing

that he had a viable mental health diminished capacity defense. Noting that a

diminished capacity defense required a showing that defendant had a condition

that prevented him from forming the requisite mental state for murder, the PCR

court also found that defendant had not submitted an affidavit, certification, or

statement showing that mental condition. Accordingly, the court concluded

defendant had failed to show that the outcome of the trial would have been

different if trial counsel had pursued a mental health diminished capacity

defense.

                                       II.

      On this appeal, defendant makes one argument, which he articulates as

follows:

            THE PCR COURT ERRED IN DENYING
            DEFENDANT'S   PETITION    FOR    POST-
            CONVICTION   RELIEF   BECAUSE   TRIAL
            COUNSEL WAS INEFFECTIVE IN FAILING TO
            PURSUE MR. PETERSON'S MENTAL HEALTH
            ISSUES AS A DEFENSE TO FIRST-DEGREE
            MURDER AND IN FAILING TO SEND [THE


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            PSYCHIATRIST] BACK               TO    THE     JAIL     TO
            EVALUATE HIS CLIENT.

      We agree with the PCR court that defendant failed to establish either

prong needed to show ineffective assistance of counsel and we therefore reject

this argument and affirm. To establish a claim of ineffective assistance of

counsel, a defendant must satisfy a two-part test: (1) "counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment," and (2) "the deficient performance

prejudiced the defense." Strickland v. Washington,  466 U.S. 668, 687 (1984);

accord State v. Fritz,  105 N.J. 42, 58-59 (adopting the Strickland test in New

Jersey).

      We apply a deferential standard of review to an appeal of a denial of a

PCR petition following an evidentiary hearing. State v. Pierre,  223 N.J. 560,

576 (quoting State v. Nash,  212 N.J. 518, 540 (2013)). The factual findings

made by a PCR court will be accepted if they are based on "sufficient credible

evidence in the record." Ibid. (quoting Nash,  212 N.J. at 540). In contrast,

interpretations of the law "are reviewed de novo." Id. at 576-77 (quoting Nash,

 212 N.J. at 540-41).

      Here, defendant failed to establish the first prong in light of the credibility

and factual findings made by the PCR court. The PCR court found trial counsel

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to be credible when he testified that he would not have stopped pursuing a

mental health diminished capacity defense without defendant's agreement after

hearing both his and defendant's testimony. Just as importantly, the court did

not accept or credit defendant's testimony that he instructed his counsel to

continue to pursue a mental health defense. We discern no basis for rejecting

those credibility findings, which are supported by substantial credible evidence

developed at the evidentiary hearing.

      To establish the second prong,         defendant must show "a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different."            Strickland,  466 U.S.  at 694.

Accordingly, defendant must affirmatively prove prejudice to his defense. Ibid.

Here, defendant failed to show prejudice. As the PCR court correctly found,

defendant submitted no expert report or any other evidence showing he had a

viable mental health diminished capacity defense. Instead, he asks us to assume

that his mental health records, without any expert opinion, are sufficient to

establish that he would have had such a viable defense in 1998. We cannot

accept such speculation.      The law is "clear that . . . purely speculative

deficiencies in representation are insufficient to justify reversal." Fritz,  105 N.J.

at 64 (citations omitted); see also State v. Arthur,  184 N.J. 307, 327-28 (2005).


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Affirmed.




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