Opinion
DOCKET NO. A-1800-16T1
04-05-2018
STATE OF NEW JERSEY, Plaintiff-Respondent, v. T.M.S. Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Gurbir S. Grewal, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel, and on the brief). Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Hoffman. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-08-1409. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Gurbir S. Grewal, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel, and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant T.M.S. appeals from an August 10, 2016 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm substantially for the reasons stated by Judge Edward A. Jerejian in his August 10, 2016 written opinion.
I
A jury found defendant guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c); third-degree aggravated sexual contact, N.J.S.A. 2C:14-3; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4, in connection with the repeated sexual abuse of his step-daughter.
The trial judge sentenced defendant to an aggregate forty-six years in prison, with an eighty-five percent parole disqualifier, N.J.S.A. 2C:43-7.2, on two consecutive eighteen-year terms, a consecutive ten-year flat term for endangering the welfare of a child; eighteen-year concurrent terms for aggravated sexual assault; a ten-year concurrent term for sexual assault; and a concurrent five-year term for criminal sexual contact. We affirmed defendant's conviction and sentence on direct appeal. State v. T.M.S., No. A-2411-11 (App. Div. Aug. 13, 2014), cert. denied, 221 N.J. 218 (2015).
Subsequently, defendant filed the PCR petition that gave rise to this appeal. He argues his trial counsel provided ineffective assistance in: (1) failing to object to the trial court's omitting a no-adverse inference charge regarding his decision to not testify; (2) "reneg[ing]" on an "implied promise to the jury that [he] would testify"; and (3) failing to adequately investigate.
In his written opinion, Judge Jerejian concluded defendant's PCR contentions were without merit. He found the trial court's "failure to provide a no-adverse inference jury instruction did not mandate automatic reversal . . . ." Specifically, he noted the jury received instructions that were the "functional equivalent" of the no adverse inference charge and completed a questionnaire indicating they would presume defendant was innocent "whether he testifie[d] or not."
Further, Judge Jerejian found defendant mischaracterized his trial counsel's opening statements and concluded "the jury could not have expected or even considered that defendant would testify in this trial." Finally, the judge rejected defendant's argument that his trial counsel failed to conduct an adequate investigation of his case and failed to prepare for trial, finding "the record shows trial counsel was knowledgeable as to the facts of the case, responded to the State's motions with knowledgeable arguments and thoroughly cross-examined all of the State's witnesses."
II
On this appeal, defendant raises the following points for our consideration:
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO TRIAL COUNSEL'S INEFFECTIVENESS; OR, IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.Defendant also submitted a pro se brief with the following headings:
A. TRIAL COUNSEL FAILED TO OBJECT TO THE COURT'S OMISSION OF THE NO-ADVERSE INFERENCE CHARGE, THAT THE JURY CANNOT DRAW AN ADVERSE INFERENCE FROM DEFENDANT'S NOT TESTIFYING.
B. TRIAL COUNSEL RENEGED ON HIS IMPLIED PROMISE TO THE JURY THAT DEFENDANT WOULD TESTIFY.
C. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE INVESTIGATION AND REVIEW THE EVIDENCE BEFORE TRIAL, AND DID NOT PREPARE FOR TRIAL.
Conclusion of brief Summary
The defendant was charged with the following
Medical Examination Report Conducted by The Northern Regional Diagnostic Center for Child Abuse And Neglect
Brief Legal Argument
Defendant's pro se brief appears to emphasize that the victim's medical examination resulted in normal findings. Defendant presents no arguments in support of his implied assertion; rather, he attached a minimally annotated trial transcript. --------
Having reviewed the record, we conclude defendant's arguments all lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We agree with Judge Jerejian that defendant failed to demonstrate a prima facie case for ineffective assistance of counsel. See State v. Cummings, 321 N.J. Super. 154, 170 (1999) ("[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel."); see also Strickland v. Washington, 466 U.S. 668, 694 (1984); State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Fritz, 105 N.J. 42, 58 (1987).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION