Opinion
DOCKET NO. A-5041-08T1
04-02-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. D.J.P., Defendant-Appellant.
John E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Graves.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-11-2733.
John E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant D.J.P. appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.
A Monmouth County grand jury indicted defendant on November 10, 2004, charging him with committing first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2); second degree sexual assault, N.J.S.A. 2C:14-2(c)(4); two counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); third degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); and fourth degree criminal sexual contact, N.J.S.A. 2C:14-3(b).
Defendant was tried before a jury over a period of nine days, starting September 13 and ending September 21, 2005. The jury convicted defendant on all charges except aggravated criminal sexual contact. The court sentenced defendant on February 3, 2006, to an aggregate term of forty years, with an eighty-five percent (thirty-four years) period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
We affirmed defendant's conviction and sentence on direct appeal. State v. D.J.P., No. A-3848-05 (App. Div. July 9, 2007). The Supreme Court thereafter denied defendant's petition for certification. 192 N.J. 596 (2007). We incorporate by reference the salient facts leading to defendant's conviction, as described in our unpublished opinion affirming the jury's verdict. No. A-3848-05 (slip op. at 3-8).
On October 26, 2007, defendant filed the PCR petition under review, claiming ineffective assistance of both trial and appellate counsel. After considering the arguments raised by defendant's PCR counsel, Judge Bette E. Uhrmacher denied defendant's petition as a mater of law, finding it procedurally barred under Rule 3:22-4, barring arguments that could have been raised on direct appeal, and Rule 3:22-5, barring arguments that have been previously adjudicated on the merits. Notwithstanding these procedural impediments, Judge Uhrmacher thoroughly considered the merits of defendant's arguments and explained her reasons for rejecting them in an oral opinion delivered from the bench on August 20, 2008.
Judge Uhrmacher also presided over defendant's trial in 2005.
Defendant now appeals, raising the following arguments:
POINT I
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel was ineffective due to the failure to effectively cross-examine the victims and their mothers.POINT II
B. Trial counsel was ineffective due to the failure to file a motion to dismiss the indictment.
C. Trial counsel was ineffective in failing to object to the charge.
D. Trial counsel failed to challenge the constitutionality of the CSAAS model jury instruction.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
A. Appellate counsel failed to argue that the indictment should have been dismissed.POINT III
B. Appellate counsel failed to argue that the counts should have been severed.
C. Appellate counsel failed to properly challenge the "in loco parentis" charge.
THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.
POINT IV
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT V
THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE SUMMATION, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL, AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT VI
THE STATE ALLEGED THROUGHOUT THE TRIAL THAT THE VICTIM'S MENTAL CONDITION RENDERED HIM PARTICULARLY VULNERABLE WITHOUT EXPERT TESTIMONY TO SUPPORT THE ALLEGATION. DEFENDANT WAS THEREBY DEPRIVED OF A FAIR TRIAL. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT VII
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.3:22-4.
POINT VIII
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS
ARE NOT PROCEDURALLY BARRED UNDER R.3:22-5.
POINT IX
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We reject these arguments substantially for the reasons expressed by Judge Uhrmacher. In doing so, we reaffirm the standard for determining ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Based on these principles, defendant has failed to make out a prima facie case of ineffective assistance of counsel. The record supports Judge Uhrmacher's findings that both trial and appellate counsel provided defendant with competent legal representation. Mere personal dissatisfaction with the outcome of a trial is not a sufficient basis to question an attorney's professional performance.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION