STATE OF NEW JERSEY VS. PATRICK M. LATKO (12-05-1312, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3395-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK M. LATKO,

Defendant-Appellant.
______________________________

Submitted April 27, 2020 – Decided May 15, 2020

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 12-05-1312.

Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Catlin A. Davis, Deputy Attorney General,
of counsel and on the brief).

PER CURIAM
 Defendant Patrick M. Latko appeals from the Law Division's February 5,

2019 order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm substantially for the reasons expressed by Judge

Jeffrey J. Waldman in his written decision issued with the order denying the

petition.

As we observed in our earlier opinion affirming defendant's conviction

and sentence, "[d]efendant was convicted of two counts of first-degree murder

and sentenced to consecutive life sentences." State v. Latko, No. A-1165-13

(App. Div. Oct. 12, 2016) (slip op at 1). As we further explained, the charges

against defendant arose from his fatal stabbing of a friend of "defendant's former

girlfriend" and that individual's mother. Id. at 1-2.

In his direct appeal, defendant argued two points. The first challenged the

trial judge's decision not to permit jurors to consider defendant's claims of third-

party guilt. Id. 9-12. Specifically, he contended that "the trial judge erred in

telling the jurors they were 'not going to be permitted' to consider whether other

specific people may have committed the crimes with which . . . defendant was

charged." Id. at 2. Defendant's second challenge was that his sentence was

excessive. Ibid. As noted, we rejected defendant's contentions and affirmed.

Ibid. In rejecting his appeal, we observed that "[t]he evidence of defendant's

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guilt was substantial." Ibid. The Supreme Court denied defendant's petition for

certification. State v. Latko, 228 N.J. 480 (2017).

In our opinion, we described in detail the facts that led to defendant's

arrest and conviction and those related to his claim that there was evidence that

other people committed the murders. Latko, slip op at 2-9. We need not repeat

those facts here. However, as we observed in our opinion, defendant did "not

argue that the facts here supported the introduction of evidence to support a

defense of third-party guilt and [he] did not request a third-party guilt charge."

Id. at 10.

After defendant's petition for certification was denied, in September 2017,

he filed a PCR petition supported by a brief. In his brief, defendant argued that

he was denied the effective assistance of trial and appellate counsel and that his

claims on PCR were not barred by Rule 3:22. As to his claim of ineffective

assistance of counsel (IAC), defendant specifically argued that trial counsel

failed to assert objections to comments made by the prosecutor during

summation and to jury charges given by the court, including the instruction that

we considered in his direct appeal. Defendant also claimed that trial counsel

failed to conduct adequate investigations of "witnesses and another suspect" or

"other defenses." In addition, he asserted that he did not receive discovery from

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trial counsel, and trial counsel failed to raise issues about his interrogation by

law enforcement "before he was read his Miranda[1] rights."

Defendant also contended that trial counsel did not "challenge the chain

of custody of the knife sheath" or "challenge the chain of custody of [the] knife,"

and did not bring to the "court's attention that several jurors saw on YouTube

that [defendant] was confined" at the county jail. In addition, defendant alleged

that trial counsel did not bring to the court's attention information about

"inconsistent statements made by [a] State's . . . witness" and to conduct the

proper investigation of the State's witness regarding the playing of the 9-1-1 call

recording. He also contended that the "trial counsel failed to seek . . . recusal

of the trial judge," as well as to "challenge DNA evidence" introduced against

him. According to defendant, "trial counsel did not put the State's case to any

meaningful adversarial test," and based on all these errors, he was entitled to a

"new trial" due to "the cumulative effect of counsel's errors."

On April 25, 2018, a supplemental brief was filed on defendant's behalf.

In identifying the actions or omissions that constituted IAC, defendant reiterated

essentially the same contentions raised in his earlier submission. The

supplemental brief also addressed the issue of the IAC of appellate counsel.

1
Miranda v. Arizona, 384 U.S. 436 (1966).
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Quoting from trial counsel's memorandum to appellate counsel, defendant

identified appellate counsel's deficiencies by failing to incorporate into his

appeal those items that trial counsel identified. They included: "Driver

issues[2]"; the State's failure to play a recording of defendant's pre-trial

statement; the trial court's failure to charge lesser-included offenses; the failure

to charge defendant as a disorderly person for "[h]indering one's own

apprehension"; the trial court's refusal to allow defendant to admit certain text

messages; the trial court prohibiting defense counsel from questioning witnesses

on the subject of "quads and quad parts"; and the trial court not insuring that a

pre-trial memorandum was prepared and filed.

After the State submitted its opposition, defendant filed a reply

certification. This certification addressed trial counsel's failure to communicate

about plea offers with defendant before the trial. According to defendant, had

he been aware of what defense counsel and the prosecutor were discussing, he

"would have authorized [his] attorney to engage in plea negotiation."

On June 26, 2018, Judge Waldman considered the parties' oral arguments.

After concluding the arguments and allowing time for the parties to submit

additional written arguments, Judge Waldman issued his February 5, 2019 order

2
State v. Driver, 38 N.J. 255 (1962).
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denying defendant's petition, supported by his written decision. In his decision,

Judge Waldman detailed the procedural history of the matter, including the

numerous pre-trial motions filed by trial counsel. He described the underlying

facts leading to defendant's conviction. The judge then identified each of

defendant's claims of IAC. The judge provided a comprehensive discussion of

the two-prong test for determining whether defendant established a prima facie

claim of IAC under Strickland v. Washington, 466 U.S. 668, 687 (1984), as

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

Turning to defendant's contentions, Judge Waldman found that defendant

"offer[ed] little to no explanation as to how these alleged errors are outside the

range of reasonable professional judgment, and that the errors would have

affected the ultimate outcome." The judge proceeded to address each of

defendant's contentions against the facts disclosed by the record and concluded

that defendant failed to meet the requirements under Strickland. He then turned

to defendant's claims as to appellate counsel and conducted the same analysis,

reaching the same conclusion. Judge Waldman found no merit to defendant's

petition and entered the order denying relief. This appeal followed.

On appeal defendant argues the following points:

POINT I

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AS [DEFENDANT] HAS ESTABLISHED A PRIMA
FACIE CASE OF INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL, HE WAS ENTITLED TO [PCR],
OR, AT A MINIMUM, AN EVIDENTIARY
HEARING.

(1) TRIAL COUNSEL WAS INEFFECTIVE
WHEN HE FAILED TO INDEPENDENTLY
INVESTIGATE PERNA AND JONES AS POSSIBLE
CANDIDATES FOR THIRD-PARTY GUILT.

(2) TRIAL COUNSEL WAS INEFFECTIVE
BY FAILING TO OBJECT TO THE TRIAL COURT'S
DECISION NOT TO CHARGE THE JURY ON
THIRD-PARTY GUILT.

POINT II

APPELLATE COUNSEL WAS INEFFECTIVE BY
FAILING TO CONSIDER AND RAISE TRIAL
COURT ERRORS THAT HAD BEEN IDENTIFIED
BY TRIAL COUNSEL.

(1) APPELLATE COUNSEL FAILED TO
ARGUE THAT THE TRIAL COURT ERRED WHEN
IT ALLOWED INTO EVIDENCE THE 9-1-1
RECORDING AS IT WAS DISTORTED AND
SUBJECT TO INTERPRETATION.

(2) APPELLATE COUNSEL FAILED TO
ARGUE THAT THE TRIAL COURT ERRED WHEN
IT DECLINED TO INSTRUCT THE JURY ON THE
LESSER-INCLUDED CHARGE OF PASSION-
PROVOCATION MANSLAUGHTER.

POINT III

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 AS THERE WAS A GENUINE DISPUTE OF
MATERIAL FACT, AN EVIDENTIARY HEARING
WAS REQUIRED.

We review de novo a PCR judge's decision to deny a petition without an

evidentiary hearing. State v. Harris, 181 N.J. 391, 419 (2004). Applying that

standard, we conclude Judge Waldman correctly denied defendant's petition for

the reasons expressed in the judge's comprehensive and thoroughly written

decision. We find no merit to any of defendant's contentions to the contrary and

conclude, as did Judge Waldman, that defendant failed to establish that his

petition met the two-prong test under Strickland. For that reason, an evidentiary

hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.

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