STATE OF NEW JERSEY v. JORDAN E. TURNER

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4496-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JORDAN E. TURNER,

     Defendant-Appellant.
________________________

                   Submitted November 9, 2020 – Decided December 11, 2020

                   Before Judges Messano and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 12-01-0100.

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

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (William P. Miller, Assistant Prosecutor, of
                   counsel; Catherine A. Foddai, Legal Assistant, on the
                   brief).

PER CURIAM
      Defendant Jordan Turner pled guilty to first-degree murder,  N.J.S.A.

2C:11-3(a).    After finding certain aggravating sentencing factors and no

mitigating factors, and in accordance with the plea agreement, the judge

sentenced defendant to a forty-five-year term of imprisonment subject to the No

Early Release Act,  N.J.S.A. 2C:43-7.2, and the Graves Act,  N.J.S.A. 2C:43-6(c).

We considered defendant's appeal on the Excessive Sentence Oral Argument

calendar and affirmed.

      Defendant filed a timely pro se post-conviction relief (PCR) petition. In

the petition, defendant failed to allege any claims of ineffective assistance of

counsel (IAC). Defendant only asserted that he was "recently diagnosed with

an autoimmune disease (celiac disease) that . . . induces serious changes in brain

chemistry that . . . make you inclined to aggressive, depressive behavior."

Defendant claimed that the prison system could not provide an appropriate diet

for his condition. The record contains no other supplemental PCR certification.1

      Appointed PCR counsel filed an initial and supplemental brief arguing,

among other points, that plea counsel and appellate counsel provided ineffective


1
   Defendant's petition was clearly inadequate. Pursuant to Rule 3:22-8, a PCR
petition must "set forth with specificity the facts upon which the claim for relief
is based, [and] the legal grounds of the complaint asserted[.]" As the PCR judge
subsequently noted, defendant's medical condition, which admittedly was not
diagnosed until after sentencing, was not a cognizable claim for PCR.
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assistance. PCR counsel supplied defendant's pre-sentence report (PSR), which

included a 2012 competency evaluation report by Dr. Raymond Terranova, a

psychologist, and other medical records, which included references to

defendant's mental health history and treatment predating the murder.

Additional records confirmed the diagnosis of celiac disease.

      During oral argument before Judge Robert M. Vinci, who was not the plea

or sentencing judge, PCR counsel contended that although plea counsel brought

defendant's mental health history to the sentencing judge's attention, he failed to

obtain all the medical reports, present them at sentencing, and argue additional

mitigating sentencing factors applied. See  N.J.S.A. 2C:44-1(b). PCR counsel

also argued appellate counsel failed to challenge the plea judge's alleged

inconsistent statement at sentencing, i.e., she found defendant's guilty plea

spared the victim's family the stress of trial but failed to apply that as a non-

statutory mitigating factor. According to defendant, appellate counsel was also

deficient because he only challenged the judge's failure to find mitigating factor

four. See  N.J.S.A. 2C:44-1(b)(4) ("There were substantial grounds tending to

excuse or justify the defendant’s conduct, though failing to establish a

defense[.]").




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      Judge Vinci noted there was "no indication anywhere in . . . the [PSR] or

anywhere else that . . . mental illness played any role in the commission of this

offense." He acknowledged Dr. Terranova's competency report and references

in the PSR to defendant's mental health history and observed that plea counsel

specifically urged the court to find mitigating factor four.   The judge further

noted that appellate counsel argued the plea judge erred by failing to find

mitigating factor four based on defendant's mental health history.

      Judge Vinci appropriately referenced the two-prong test for IAC claims

formulated in Strickland v. Washington,  466 U.S. 668, 687 (1984), and adopted

by our Supreme Court in State v. Fritz,  105 N.J. 42, 58 (1987). First, a defendant

must show "that counsel made errors so serious that counsel was not functioning

as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting

Strickland,  466 U.S. at 687). Second, a defendant must show by a "reasonable

probability" that the deficient performance affected the outcome. Id. at 58. "A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." State v. Pierre,  223 N.J. 560, 583 (2015) (quoting Strickland,  466 U.S.  at 694; Fritz,  105 N.J. at 52).

      Judge Vinci concluded defendant's IAC claim regarding plea counsel

failed to satisfy both prongs. He noted that plea counsel argued the sentencing


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judge should impose the minimum thirty-year term for murder, urging the court

to find mitigating factor four "based on precisely the same reasons and

supporting documentation on which defendant relies in connection with the . . .

[PCR]" petition. The judge rejected defendant's argument that plea counsel was

ineffective for failing to raise other mitigating factors, concluding "[n]one of

these mitigating factors were supportable based on the facts of this case."

Moreover, Judge Vinci determined that even if the plea judge found all the

mitigating factors now urged by PCR counsel, "there's no reason to believe that

the court would have found that the mitigating factors outweighed the

aggravating factors under the facts of this case, . . . indicating . . . the sentence

imposed likely would not have been less than" the forty-five year term of

imprisonment actually imposed. Citing State v. Echols,  199 N.J. 344, 361

(2009), the judge stated, "Trial counsel cannot be deemed ineffective for failing

to raise a losing argument."

      Judge Vinci cited our decision in State v. Morrison, correctly noting the

same two-prong standard applied to IAC claims regarding appellate counsel.

 215 N.J. Super. 540, 546 (App. Div. 1987). The judge concluded that having

found trial counsel was not ineffective for failing to obtain the medical records

and arguing additional mitigating sentencing factors applied, it followed that


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appellate counsel was not ineffective for the same reasons. As to any alleged

non-statutory mitigating factor, Judge Vinci found the plea judge said she would

consider it in imposing sentence, "and there's no reason to believe she did not."

      Lastly, Judge Vinci stated that defendant failed to demonstrate a prima

facie case for relief on his IAC claims, and therefore, an evidentiary hearing was

not warranted. See R. 3:22-10(b) (noting defendant is "entitled to an evidentiary

hearing only upon the establishment of a prima facie case in support of post -

conviction relief," the judge's "determination . . . that there are material issues

of disputed fact that cannot be resolved . . . [on] the existing record," and "an

evidentiary hearing is necessary to resolve the claims"). Judge Vinci entered an

order denying the petition.

      Before us, defendant contends he was entitled to an evidentiary hearing

on his claims that plea counsel and appellate counsel rendered ineffective

assistance by failing to make adequate arguments at sentencing and on appeal.

Defendant also contends Judge Vinci erroneously found his IAC claims were

procedurally barred. We affirm, for the reasons expressed by Judge Vinci in his

comprehensive oral opinion.

      We further note that the judge did not bar defendant's IAC claims on

procedural grounds. Rather, Judge Vinci noted that certain arguments made by


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PCR counsel challenged the actual sentence imposed as excessive because of

alleged failures by the judge to find certain mitigating sentencing factors. Judge

Vinci noted defendant did not allege the sentence was illegal, and it was not,

and the argument was procedurally barred by Rule 3:22-4(a)(1) (barring claims

that could have been raised in prior proceedings), and Rule 3:22-5 (barring

claims previously adjudicated on the merits). We agree.

      Affirmed.




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