Opinion
DOCKET NO. A-5035-14T4
11-23-2016
STATE OF NEW JERSEY IN THE INTEREST OF D.H., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant D.H. (Kisha M. Hebbon, Designated Counsel, on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Assistant Prosecutor, of counsel; Kristen M. Pridgen, Legal Assistant, on the brief).
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Reisner and Koblitz. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-0692-12. Joseph E. Krakora, Public Defender, attorney for appellant D.H. (Kisha M. Hebbon, Designated Counsel, on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Assistant Prosecutor, of counsel; Kristen M. Pridgen, Legal Assistant, on the brief). PER CURIAM
D.H., a juvenile adjudicated delinquent, appeals from a June 3, 2015 order denying his petition for post-conviction relief (PCR). We affirm.
The trial evidence was addressed in detail in our previous opinion deciding D.H.'s direct appeal and need not be repeated here. State in the Interest of D.H., A-4540-11 (App. Div. Nov. 25, 2013), certif. denied, 217 N.J. 287 (2014), cert. denied, ___ U.S. ___, 134 S. Ct. 2827, 189 L. Ed. 2d 792 (2014). D.H. was charged with forcing a fellow student to perform oral sex in a bathroom, at the school for special needs students which they attended. The Family Part judge found that D.H. committed offenses which, had he been an adult, would have constituted sexual assault, N.J.S.A. 2C:14-2(c), and false imprisonment, N.J.S.A. 2C:13-3. D.H. was sentenced to probation and ordered to comply with Megan's Law.
On his direct appeal, D.H. raised the following issues:
POINT I
THE BLANKET BAN ON JURY TRIALS FOR JUVENILES PURSUANT TO N.J.S.A. 2A:4A-40, DEPRIVED THE 14-YEAR OLD DEFENDANT THE RIGHT TO A JURY TRIAL, DUE PROCESS OF LAW, AND EQUAL PROTECTION UNDER BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. (Not Raised Below).
i. As with the Kansas Decision in In the Matter of L.M., 186 P.3d 164, 286 Kan. 460 (Kan. 2008), Since Recent Amendments to the Juvenile Code have Diminished the Rehabilitative Purposes and Goals of the Code, the Rationale for Nonjury Trials No Longer Applies and Consequently, the Blanket Jury Ban Pursuant to N.J.S.A. 2A:4A-40 Abridges the United States Constitution.
ii. The Blanket Jury Ban for Juveniles of N.J.S.A. 2A:4A-40 Violates the Plain and Unequivocal Language of the New
Jersey Constitution's Guarantee of a Jury Trial.
iii. Alternatively, the Harmonization of the Remaining Rehabilitative Aspects of the Juvenile Code with the Jury Trial Right should at Least Give a Trial Court the Discretion of Providing Jury Trials for Juveniles Charged with Serious Offenses.
We rejected those arguments and affirmed.
POINT II
THE TRIAL COURT'S PRECLUSION OF A TEACHING ASSISTANT'S PERSONAL OPINION ABOUT R.R.'S TRUTHFULNESS, CONTRARY TO N.J.R.E. 405(a) AND 608(a), DEPRIVED D.H. A COMPLETE DEFENSE AND A FAIR TRIAL.
POINT III
THE TRIAL JUDGE'S DISCOUNT OF EVIDENCE THAT R.R. WAS UNTRUTHFUL PRIOR TO THE CLOSE OF THE PROSECUTOR'S SUMMATION, SHOWS THAT HE IMPROPERLY PREDETEREMINED D.H.'S GUILT. (Not Raised Below).
Defendant then filed a PCR petition, contending that his trial counsel should have called him to testify; his trial counsel should have introduced evidence of the victim's mental health issues; and the trial judge should have recused himself because the judge's son had attended the same school as D.H., fourteen years earlier. Judge Kathleen A. Sheedy, who was not the trial judge, heard the PCR petition and rejected it, for reasons she set forth in a detailed written opinion on June 3, 2015.
On this appeal, D.H. raises the same arguments he presented to Judge Sheedy, set forth in the following points:
THE TRIAL COURT ERRED IN DENYING THE JUVENILE'S MERITORIOUS PETITION FOR POST CONVICTION RELIEF OR, AT LEAST, AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. D.H. SHOULD BE GRANTED POST DISPOSITION RELIEF BECAUSE TRIAL COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HER FAILURE TO CALL D.H. TO TESTIFY.
C. D.H. SHOULD BE GRANTED POST DISPOSITION RELIEF BECAUSE TRIAL COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HER FAILURE TO PRESENT EVIDENCE RELATING TO R.R.'S PHYSICAL AND MENTAL HEALTH CLASSIFICATIONS.
D. D.H. SHOULD BE GRANTED POST DISPOSITION RELIEF BECAUSE TRIAL COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HER FAILURE TO INVESTIGATE AND REQUEST A HEARING REGARDING A POTENTIAL CONFLICT WITH JUDGE IADANZA.
E. AT THE VERY LEAST, THIS MATTER SHOULD BE REMANDED TO THE TRIAL COURT TO AFFORD D.H. AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED
THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
Our review of the judge's PCR decision is de novo. See State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). After reviewing the record in light of that legal standard, we conclude that Judge Sheedy thoroughly considered and correctly rejected all of D.H.'s PCR arguments. Because defendant did not present legally competent evidence constituting a prima facie case of ineffective assistance, the judge properly denied the petition without holding an evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant's appellate contentions are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(2). We affirm for the reasons stated in Judge Sheedy's comprehensive opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION