Opinion
DOCKET NO. A-3829-11T1
03-26-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.S.T., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-02-0771. Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant J.S.T. appeals from an order denying his petition for post-conviction relief (PCR). Defendant contends he received ineffective assistance of counsel. We affirm.
Defendant was charged with numerous offenses relating to and including aggravated sexual assaults upon Ned, the son of defendant's live-in girlfriend and later wife. The indictment charged that the sexual assaults took place between October 1990 and October 1999, when Ned was between the age of eight and seventeen years old. At trial, Ned testified about numerous incidents of both physical and sexual assault. Ned stated that defendant frequently penetrated him anally, forced him to perform fellatio upon defendant, performed fellatio on him, and provided him alcohol and marijuana.
This is a fictitious name to protect the victim's privacy.
Defendant was found guilty on all counts at trial. The court imposed an aggregate sentence of sixty-five years in prison, with a parole disqualifier of forty-three years, six days. On direct appeal, we affirmed his conviction, but remanded for reconsideration of defendant's sentence based upon merger of offenses. State v. J.S.T., No. A-0067-04 (App. Div. August 21, 2006), certif. denied., 188 N.J. 578 (2006). On remand, the court re-imposed the same sentence. We subsequently affirmed on a sentencing calendar. State v. [J.S.T.], No A-5318-06 (App. Div. February 06, 2008). Prior to that affirmance, defendant filed a pro se PCR petition alleging ineffective assistance of trial and appellate counsel, and excessive sentence. Counsel was assigned to represent defendant, and a supplemental brief and amended verified petition for PCR were filed.
In a bench decision issued following oral argument, Judge Samuel D. Natal denied defendant's PCR petition. He rejected defendant's claim of ineffective assistance of counsel for failing to challenge the lack of specific assault dates in the indictment as procedurally barred under Rule 3:22-4. Judge Natal ruled the claim procedurally could have been raised on direct appeal and procedurally denying the claim would not result in a fundamental injustice. The judge also noted that when this court addressed the merger of offenses issue on defendant's direct appeal, we recognized that an indictment charging repeated assaults against a young victim need not specify one or more exact dates.
In addressing the merits, Judge Natal found that a motion to dismiss the indictment would have been unsuccessful. Relying upon In re K.A.W., 104 N.J. 112, 118-19 (1986), the judge ruled that given Ned's age and the repetitive nature of the assaults, the indictment sufficiently charged offenses occurring on diverse dates over three separate time periods, October 1990 through June 1992, July 1992 through August 1994, and September 1996 through October 1999, to coincide with the different places Ned and his family resided and where the assaults took place. The judge found defendant could properly defend himself because
although the entire indictment covers defendant's criminal activity over a nine-year span, the individual charges span only two years each. . . . each count fairly appraises the defendant of the identity of the alleged victim, the offenses that were alleged committed, when the offenses allegedly were committed, and when the offenses occurred.
Judge Natal further found that the discovery provided to defendant and his counsel's cross-examination of Ned demonstrated defendant was not prejudiced by the lack of specific dates in the indictment.
On appeal, defendant raises the following points:
POINT ONE
THE LOWER COURT ERRED IN FINDING THAT DEFENDANT'S GROUNDS FOR POST-CONVICTION RELIEF WERE BARRED UNDER RULE 3:22-4.
POINT TWO
THE POST-CONVICTION RELIEF COURT FAILED TO VIEW THE FACTS IN THE LIGHT MOST FAVORABLE TO DEFENDANT IN DETERMINING THAT DEFENDANT WAS NOT ENTITLED TO AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF COUNSEL.
POINT THREE
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT FOUR
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF. (NOT RAISED BELOW)
We find defendant's arguments unpersuasive and affirm substantially for the reasons stated by Judge Natal in his thorough decision. We add only the following.
It is well-settled that to establish a claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The first prong requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Ibid. The test is whether "counsel's conduct fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d 693. Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Id. To prove this element, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 699.
Initially, we point out that the contention that the indictment was deficient because it lacked specific dates of the alleged offenses is procedurally barred because the claim could have been raised on direct appeal but was not. See State v. Echols, 199 N.J. 344, 357 (2009); see also R. 3:22-4. Defendant has not presented any reasons for justifying relief from the procedurally bar. See R. 3:22-4. Moreover, as Judge Natal's reasoning establishes, such a motion to dismiss the indictment would have failed based upon In re K.A.W. Given the conclusion that the motion would have been unsuccessful, there is no ineffective assistance of counsel. See Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Accordingly, defendant is not entitled to an evidentiary hearing because there is no prima facie showing of ineffectiveness. State v. Preciose, 129 N.J. 451, 462 (1992) (PCR court has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief).
A procedural bar also applies to defendant's contention that appellate counsel was ineffective for failing to argue that trial counsel was ineffective for not moving to dismiss the indictment. Based on our review of the record, this argument was not raised below and does not involve jurisdictional or public interest concerns, and should therefore be viewed as waived. State v. Arthur, 184 N.J. 307, 327 (2005) (citing Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (an issue not properly preserved at the hearing level may not be considered at the appellate level unless the issue relates to jurisdiction or concerns matters of great public interest)). Furthermore, even if the argument was raised below, it fails for the same reasons we noted that trial counsel was not ineffective for seeking dismissal of the indictment. Pursuant to In Re Kaw, a motion to dismiss would have been denied.
Lastly, defendant argues that his PCR counsel was ineffective for not submitting documentation with his brief in support of PCR or citing to trial transcript references and failing to contend that appellate counsel was ineffective for not arguing the indictment did not provide adequate notice of when the alleged assaults occurred. These arguments are raised for the first time before us, and fail procedurally as they were not raised below. Ibid. Nonetheless, on their merits, the arguments are unpersuasive. Defendant does not show how PCR counsel's performance was deficient or how the missing documentation or transcript references would have resulted in a different outcome. As noted, any argument by appellate counsel that the indictment was insufficient would have been unsuccessful. The alleged deficiencies therefore clearly fail to meet either the performance or the prejudice prong of the Strickland test.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION