                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-0120-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TAQUAN K. RANGE, a/k/a
NYEEM RANGE,

          Defendant-Appellant.


                   Submitted December 17, 2019 – Decided December 31, 2019

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Warren County, Indictment No. 09-03-0083.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Howard Woodley Bailey, Designated
                   Counsel, on the brief).

                   James L. Pfeiffer, Warren County Prosecutor, attorney
                   for respondent (Dit Mosco, Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      Defendant Taquan K. Range appeals an order denying his petition for

post-conviction relief (PCR) without an evidentiary hearing. We affirm.

      Following a jury trial, defendant was convicted of all ten offenses charged

in a Warren County indictment, including aggravated sexual assault, armed

robbery, burglary, terroristic threats, and weapons offenses.          Imposing

concurrent terms of imprisonment on each conviction, the judge sentenced

defendant to an aggregate twenty-year prison term subject to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.

      On direct appeal, we reversed two of the weapons convictions, and

remanded for resentencing, merger of other convictions and a restitution

hearing. State v. Range, No. A-0822-11 (App. Div. Oct. 1, 2014) (slip op. at

13), certif. denied, 221 N.J. 287 (2015). We otherwise affirmed defendant's

convictions and sentence. Ibid.

      We incorporate by reference the facts and procedural history set forth in

our prior opinion. Id. at 1-12. In short, defendant and two other men, intent on

beating and robbing "Sammy," a marijuana dealer known to them, happened

upon the wrong apartment. Id. at 4. After the victim – who did not know the

men – answered the door, she was sexually assaulted, threatened at gunpoint,

struck in the head with a gun, and robbed of twenty dollars, jewelry and oatmeal


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cookies. Id. at 5-7. One of the men held a gun to her three-year-old's head. Id.

at 6. Defendant told the getaway driver the woman had performed oral sex on

him while he was wearing a condom. Id. at 8. DNA evidence confirmed his

account. Ibid.

      At sentencing, trial counsel commenced his argument in support of

mitigation by directing the judge to defendant's brain injury:

                  I'm sure the [c]ourt saw in our submission that
            when he was quite young Mr. Range was the victim of
            a brutal assault, apparently struck repeatedly in the
            head with a hammer, such that he sustained a depressed
            skull fracture, had to have surgery to relieve pressure
            on his brain, and subsequently there's [sic] additional
            surgical reports that he had to have surgery that covered
            the area of the scalp that had been scarred and left him
            traumatized.

      Acknowledging counsel submitted medical records of defendant's "very

serious" head injury, the sentencing judge, who had tried the case, "didn't really

attach . . . any weight to that at all." Noting defendant had not asserted a

diminished capacity defense at trial, the judge further found "[t]here was no

evidence that [defendant's] head injury had any permanent effect upon [him] that

would interfere with [his ability to] reason . . . ." Rather, the judge emphasized

the offenses for which defendant was convicted "started out with . . . a

premeditated robbery."


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      Defendant filed a pro se PCR petition claiming his trial counsel was

ineffective for failing to present a diminished capacity defense based on

defendant's head injury.       Defendant also asserted prosecutorial misconduct

regarding certain testimony adduced at trial. Assigned counsel filed an amended

petition and brief, emphasizing trial counsel failed to submit the report or other

"writing" from the social worker – who had been retained by trial counsel to

conduct a psychosocial evaluation of defendant – in mitigation of his sentence.

      In an oral decision, the judge rejected defendant's arguments and denied

PCR. The judge concluded defendant failed to establish a prima facie case

supporting his petition and, as such, a hearing was not warranted.

      Pertinent to this appeal, the PCR judge determined defendant "failed to

prov[id]e evidence that the mitigating report would have overcome the high bar"

required to demonstrate trial counsel was deficient, and "failed to articulat e

facts" to demonstrate the sentencing judge would have found mitigating factor

four at sentencing. See N.J.S.A. 2C:44-1(b)(4) (the existence of "substantial

grounds tending to excuse or justify the defendant's conduct"). Instead, the

judge noted counsel argued "forcefully" for mitigation; the sentencing judge

considered defendant's head trauma, "afforded it no weight and found that no

mitigating factors existed."


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                                         4
      Further, in rejecting defendant's PCR claim that trial counsel failed to

present a diminished capacity defense, the judge observed "the record is replete

with references" by defendant which reveal his "reasons or his thought process

involving the assault presented in this case . . . ." According to the judge,

defendant made exculpatory statements and excuses: "I didn't do it, or I did it

because I was young," but there was no evidence of his alleged diminished

capacity in the record.

      On appeal, defendant maintains his trial counsel rendered ineffective

assistance, but only challenges the judge's decision regarding his mitigating

factor four argument.     Although defendant acknowledges his trial counsel

submitted the hospital records of the beating at sentencing, defendant renews his

argument that trial counsel should have submitted a psychosocial report or

expert testimony from the social worker who prepared the report.

      Having carefully considered defendant's arguments in light of the

applicable law, we conclude they lack sufficient merit to warrant extended

discussion in our written opinion. R. 2:11-3(e)(2). We add only the following

brief remarks.

      A defendant is entitled to an evidentiary hearing only when he "has

presented a prima facie [case] in support of [PCR]," State v. Preciose, 129 N.J.


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                                       5
451, 462 (1992), meaning that a "defendant must demonstrate a reasonable

likelihood that his . . . claim will ultimately succeed on the merits." State v.

Marshall, 148 N.J. 89, 158 (1997). For a defendant to obtain relief based on

ineffective assistance grounds, he is obliged to show not only the particular

manner in which counsel's performance was deficient, but also that the

deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466

U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the

Strickland two-part test in New Jersey).

      Defendant failed to satisfy either prong of the Strickland/Fritz test. We

agree with the PCR judge's conclusion that defendant's claims regarding his

mitigating factor four argument were "speculative." As the judge observed, trial

counsel sought mitigation "based on defendant's head injury, provided proof of

the head injury and the trial [c]ourt weighed that evidence appropriately."

      Indeed, trial counsel submitted defendant's "actual medical records[,]"

which were "the best evidence of the injury defendant suffered after being hit in

the head . . . ." Although the sentencing judge considered that argument, he

reasonably rejected it. Cf. State v. Dalziel, 182 N.J. 494, 504 (2005) ("[W]here

mitigating factors are amply based in the record before the sentencing judge,

they must be found.").      The record simply does not support defendant's


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                                       6
speculative argument that the unspecified opinion of a social worker expert

would have compelled the sentencing judge to find mitigating factor four.

      Notably, at his resentencing hearing before another judge, defendant

stated he had obtained his high school equivalency diploma and was enrolled in

his third semester of college in prison, seeking his associate degree in theology.

Defendant blamed his participation in the crime on alcohol and drugs, not on his

brain trauma.

      We therefore conclude that the PCR judge correctly determined defendant

failed to establish a prima facie showing of ineffective assistance of counsel.

Accordingly, an evidentiary hearing was not necessary to resolve defendant's

PCR claims. Preciose, 129 N.J. at 462.

      Affirmed.




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