SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2502-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHANCE L. HARMON, 

Defendant-Appellant.

_______________________

Submitted April 13, 2021 – Decided May 4, 2021

Before Judges Haas and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 11-05-1220. 

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief). 

Jill S. Mayer, Acting Camden County Prosecutor, 

attorney for respondent (Kevin J. Hein, Special Deputy 

Attorney General/Acting Assistant Prosecutor, of 

counsel and on the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2 A-2502-19

Defendant Chance L. Harmon appeals from an August 3, 2018 order 

issued by Judge Gwendolyn Blue denying his petition for post-conviction relief 

(PCR) without an evidentiary hearing. We affirm.

I.

Defendant, who was seventeen years old at the time he committed the

underlying offenses was waived to adult court after a hearing. He was 

subsequently charged by a Camden County grand jury in a five-count indictment 

with: first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); seconddegree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)

(count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b) (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count 

four); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-

3(b)(2), (3) (count five).

Prior to trial, defendant underwent a competency examination conducted 

by Christine Joseph, Ph.D. In addition to interviewing defendant, Dr. Joseph 

considered the extensive discovery materials in the case, as well as defendant's 

prior psychiatric, school, and medical records, and also performed a competency 

skills assessment.
3 A-2502-19

Dr. Joseph diagnosed defendant with cannabis abuse, a learning disorder,

and behavioral control problems. She also noted that defendant underwent an

intellectual assessment when he was sixteen which concluded that he possessed 

a full-scale IQ of sixty-seven, placing him at the high end of the "[m]ild [m]ental 

[r]etardation range." Dr. Joseph noted, however, that the psychologist who 

performed the prior assessment commented that it did not appear defendant was 

"motivated to perform well during testing and although there [was] evidence that 

he had learning problems throughout school, [his] opinion was that his actual

intellectual abilities f[e]ll in the [b]orderline range . . . or higher." To this point, 

the psychologist considered the evaluation "to be an underestimation of his 

cognitive functioning."

Dr. Joseph concluded that defendant was competent, understood the 

charges against him, and had the ability to participate in an adequate 

presentation of his defense. The court agreed with Dr. Joseph and deemed 

defendant competent to stand trial.1

At trial, the State presented evidence that defendant fatally shot the victim 

seven times at close range after learning that the victim was in a relationship 

with a woman with whom defendant had a prior sexual relationship. The 

1 Defendant has not provided us with a transcript of the competency proceeding.
4 A-2502-19

shooting was witnessed by four of the victim's friends who positively identified 

defendant as the shooter, both to the police and at trial. At trial, defendant 

contended the State failed to establish beyond a reasonable doubt that he was 

the killer.

At the conclusion of the State's case, the judge granted defendant's motion 

to dismiss counts four and five of the indictment. The jury then found defendant 

guilty of counts one, two, and three. We affirmed defendant's convictions, but 

remanded for a new sentencing hearing. State v. Harmon, No. A-3338-12 (App. 

Div. June 3, 2015). The Supreme Court denied defendant's petition for 

certification. State v. Harmon, 223 N.J. 404 (2015).

On remand, after considering and weighing the applicable aggravating and 

mitigating factors, Judge Blue, who was also the trial judge, resentenced 

defendant to a forty-year aggregate prison term. On February 8, 2016, defendant 

filed a pro se petition for PCR alleging ineffective assistance of counsel for 

failing to obtain affidavits from additional witnesses and appeal his 

resentencing. 

Judge Blue granted his petition in part, permitting defendant to appeal 

issues related to his resentencing, and provided him thirty days from the 

completion of appeal to reinstate his PCR petition and raise any remaining 
5 A-2502-19

ineffective assistance of counsel arguments. We considered defendant's appeal 

and affirmed, finding his sentence was not manifestly excessive or unduly 

punitive. State v. Harmon, No. A-3978-16 (App. Div. Dec. 5, 2017). Defendant 

subsequently reinstated and amended his PCR petition.

In his amended PCR petition, defendant alleged that his trial counsel was 

ineffective for failing to: 1) investigate and assert a diminished capacity 

defense, 2) communicate and visit with him when he was detained, 3) poll the 

jury after the verdict, 4) investigate and present mitigating factors at 

resentencing, and 5) obtain affidavits from adverse witnesses. He also claimed 

the court improperly answered a question during deliberation with respect to his

"state of mind."

Judge Blue issued an oral opinion and order denying defendant's PCR 

petition without an evidentiary hearing. Applying the well-recognized twoprong test to establish ineffectiveness of counsel, Strickland v. Washington, 466 

U.S. 668, 687 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987), the judge found 

there was no prima facie claim that trial counsel's performance was deficient or 

that the alleged deficient performance prejudiced his defense. 

Judge Blue rejected defendant's argument that his trial counsel was 

ineffective for failing to pursue a diminished capacity defense. The judge 
6 A-2502-19

explained that defendant failed to satisfy prong one of the Strickland/Fritz test 

because he failed to provide an affidavit or competent evidence that he suffered 

from a mental condition that would support a diminished capacity defense. 

Before reaching this conclusion, the judge exhaustively reviewed and 

considered Dr. Joseph's report and determined it did not establish that defendant 

suffered from "any type of psychiatric or mental health conditions." 

The judge similarly rejected defendant's claim that his trial counsel was 

constitutionally ineffective for failing to communicate or visit with him. Judge 

Blue characterized defendant's contention as an unsupported "blanket" 

allegation. The judge specifically noted numerous instances when counsel 

requested trial adjournments to confer with defendant, including when counsel 

visited defendant in his holding cell during the trial proceedings. The judge also 

noted that at no point during the trial or remanded proceedings did defendant 

complain about his trial counsel's performance, including any purported lack of 

communication. Further, Judge Blue found that based on the trial record, 

defendant and counsel specifically discussed what the judge characterized as an 

alibi defense. 

Judge Blue also concluded that even assuming counsel's failure to 

communicate with him constituted ineffective assistance of counsel under prong 
7 A-2502-19

one, defendant failed to establish that he suffered any prejudice because he did 

not identify specifically any action counsel should have taken. Because no 

prima facie claim of ineffective assistance of counsel was established, the judge 

applied State v. Preciose, 129 N.J. 451, 463 (1992), and concluded defendant 

was not entitled to an evidentiary hearing. 

In his appeal to us, defendant raises only two of the arguments he made 

before Judge Blue.2

 Specifically, he contends: 

THIS MATTER MUST BE REMANDED FOR AN 

EVIDENTIARY HEARING BECAUSE 

DEFENDANT ESTABLISHED A PRIMA FACIE

CASE OF TRIAL COUNSEL'S 

INEFFECTIV[E]NESS. 

A. Trial Counsel Failed To Pursue A Diminished 

Capacity Defense. 

B. Trial Counsel Failed To Adequately Communicate 

With Defendant, Including Never Visiting Him In 

Jail And Not Sending Him A Copy of Discovery. 

We disagree with defendant's contentions and affirm substantially for the 

reasons set forth by Judge Blue in her comprehensive and thorough August 3, 

2 We accordingly do not address Judge Blue's rejection of defendant's other 

arguments because defendant does not challenge the court's determinations on 

those issues on appeal. Issues not briefed on appeal are deemed waived. 

Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); 

Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).
8 A-2502-19

2018 oral decision. We provide the following comments to amplify our 

decision. 

II.

A claim for ineffective assistance of counsel must satisfy the two-part test 

pronounced in Strickland by first demonstrating that "counsel's representation 

fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688; 

see also Fritz, 105 N.J. at 58. A defendant must overcome a strong presumption 

that counsel rendered reasonable professional assistance. Strickland, 466 U.S. 

at 689. Under the second prong, a defendant must demonstrate a "reasonable 

probability" that his counsel's errors prejudiced the defense such as to deprive 

defendant of a fair and reliable outcome. Strickland, 466 U.S. at 687, 694. 

A defendant bears the burden of introducing evidence of mental disease 

or defect. State v. Baum, 224 N.J. 147, 161 (2019). Diminished capacity is 

defined as: 

Evidence that the defendant suffered from a mental 

disease or defect is admissible whenever it is relevant 

to prove that the defendant did not have a state of mind 

which is an element of the offense. In the absence of 

such evidence, it may be presumed that the defendant 

had no mental disease or defect which would negate a 

state of mind which is an element of the offense. 

[N.J.S.A. 2C:4-2.]
9 A-2502-19

Diminished capacity does not "excuse the defendant from criminal 

responsibility" but rather "negate[s] a mental element of the crime charged, 

thereby exonerating the defendant of that charge." State v. Breakiron, 108 N.J. 

591, 601 (1987) (citations omitted). "Diminished capacity is a 'failure of proof'

defense [meaning that] evidence of defendant's mental illness or defect serves 

to negate the mens rea element of the crime." State v. Reyes, 140 N.J. 344, 354 

(1995) (citation omitted). 

Here, defendant's claim that his trial counsel was ineffective for failing to 

pursue a diminished capacity defense finds no support in the record. Defendant's 

amended petition merely states in conclusory fashion that counsel was 

ineffective for "failing to investigate the defense of diminished capacity."

Defendant does not even allege, let alone provide factual support, by way of 

affidavit, competent medical evidence, or expert opinion, that, at the time of the 

incident, he suffered from an acute or chronic mental disease or defect that 

negated his state of mind necessary to commit the offenses charged. See State 

v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (explaining the facts 

supporting a PCR petition must be "supported by affidavits or certifications 

based upon the personal knowledge of the affiant or the person making the 

certification"). 
10 A-2502-19

Rather, defendant relied solely on Dr. Joseph's report, prepared in the 

context of his competency proceeding, which makes no mention of whether 

defendant's mental state was sufficiently impaired at the time he committed the 

offense to support a diminished capacity defense. Although Dr. Joseph's review 

of defendant's medical history contained an embedded hearsay report of an exam 

conducted nearly a year prior to the offenses, which placed defendant at the high 

end of mild mental retardation, Dr. Joseph concluded that defendant showed no 

evidence of "emotional lability" and did not exhibit "overt signs or symptoms 

related either [of] a mood disorder or a psychotic disorder." According to Dr. 

Joseph, defendant denied being paranoid or having auditory or visual 

hallucinations. Further, as noted, the prior assessment explained that defendant 

did not "appear motivated to perform well during testing." 

Moreover, defendant's primary defense during trial, by way of extensive 

cross-examination of the multiple eyewitnesses, was that the State failed to

establish he killed the victim. A diminished capacity defense, however, is based 

on the factual predicate that defendant committed the offense but did not possess 

the requisite mens rea to establish his guilt. Here, defendant fails to explain how 

his counsel was deficient for pursuing one defense over the other. It is well 

settled that "purely speculative deficiencies in representation are insufficient to 
11 A-2502-19

justify reversal." Fritz, 105 N.J. at 64; see also State v. Arthur, 184 N.J. 307, 

327-28 (2005). 

III.

We also agree with Judge Blue that defendant failed to establish a prima 

facie case of ineffective assistance of counsel related to his claims that counsel 

inadequately communicated with him. First, Judge Blue noted that the record 

contradicted defendant's claim, specifically noting that defendant spoke with 

counsel regarding his defense, and observed the numerous times counsel sought 

adjournments to communicate with defendant along with those instances he 

visited with defendant during trial. 

Second, even were we to indulge defendant's claim that he satisfied the 

first prong of the Strickland/Fritz test, we agree with the judge that defendant 

failed to establish he was in any way prejudiced by such ineffectiveness had 

counsel met with him more frequently. His petition contains bare bones 

assertions and fails to identify any witnesses, evidence, or arguments that show 

a "reasonable probability" the outcome of his proceedings would have been 

different. Strickland, 466 U.S. at 694; see also Cummings, 321 N.J. Super. at 

170. Judge Blue therefore correctly denied the claim without an evidentiary 

hearing. See Preciose, 129 N.J. at 462. 
12 A-2502-19

To the extent we have not expressly addressed any of defendant's 

remaining arguments, it is because we have concluded they are without 

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). 

Affirmed.