STATE OF NEW JERSEY VS. JORDAN E. TURNER (12-01-0100, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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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