Opinion
DOCKET NO. A-4900-12T3
06-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. P.D.W., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-07-1010. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant P.D.W. was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The crimes were alleged to have occurred between August 2002 and January 2003 when the victim, J.P.G., the daughter of defendant's live-in girlfriend, A.P., was either five or six years old. State v. P.D.W., No. A-6025-05 (App. Div. June 25, 2008) (slip op. at 2,9). Critical to the State's prosecution was a statement defendant gave to police in which he admitted sexually assaulting J.P.G. Id. at 4. The judge imposed an aggregate sentence of fifteen years imprisonment, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Id. at 13-14. We affirmed defendant's conviction and sentence on direct appeal. Id. at 3. The Supreme Court denied defendant's petition for certification. 198 N.J. 315 (2009).
In October 2010, defendant filed a pro se petition for post-conviction relief (PCR) which contained no specific claims. Apparently PCR counsel was appointed, and defendant filed an amended petition that asserted ineffective assistance of counsel (IAC). Defendant claimed he told trial counsel that A.P. believed her daughter was lying, and she also told defendant that the young girl had falsely claimed other men sexually abused her. Defendant asserted that one such man was F.C., by whom A.P. had a child. According to defendant, trial counsel said he "couldn't find" F.C. Defendant told trial counsel he was drinking heavily on the date of his arrest, but his attorney "didn't really help [him] get the judge to understand this at the Miranda hearing." Defendant's mother knew of his drinking on the day in question, but she was not called as a witness at the hearing.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
R.W., defendant's mother, filed a certification in support of the petition. She stated that she spoke to trial counsel by phone, and "he kept me up to date on the case." R.W. told counsel that defendant was "drinking heavily" before his arrest and could be pressured into saying "what a person wants to hear." She was available to testify at the Miranda hearing, but counsel never called her as a witness.
PCR counsel argued that defendant was entitled to a new trial due to the ineffective assistance of trial and appellate counsel. As to trial counsel, defendant's IAC claim rested on the failure to call R.W. as a witness at the Miranda hearing, the failure to properly authenticate certain school records at that hearing, which, if admitted, would have demonstrated defendant's cognitive deficits, the failure to vigorously cross-examine A.P. regarding the victim's prior false allegations against other men, and the failure to object at various points to the prosecutor's summation. The IAC claim regarding appellate counsel rested on the failure to raise the prosecutor's alleged "misconduct" in summation as a point on direct appeal.
After oral argument, the PCR judge, who was not the trial judge, issued a written decision addressing these IAC claims. He concluded that had defendant's mother testified at the Miranda hearing, it would not have affected the outcome. The judge also rejected the argument that counsel's cross-examination of A.P. demonstrated ineffective assistance, noting that the jury heard testimony from A.P. herself that she doubted her daughter's claim. Lastly, the judge rejected defendant's IAC claim regarding appellate counsel. The judge entered a conforming order, and this appeal followed.
Defendant raises the same contentions before us and argues he should have been afforded an evidentiary hearing on his petition. Having considered the contentions in light of the record and applicable legal standards, we affirm and add only these comments.
It is well-recognized that a defendant is entitled to an evidentiary hearing "only upon the establishment of a prima facie case in support of post-conviction relief," and "[t]o establish a prima facie case, [a] defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b). To establish an IAC claim, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
First, a defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "In determining whether defense counsel's representation was deficient, [j]udicial scrutiny . . . must be highly deferential, and must avoid viewing the performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (alterations in original) (quoting State v. Norman, 151 N.J. 5, 37 (1997)) (internal quotation marks omitted).
Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).
We agree with the PCR judge that had defendant's mother been called as a witness at the Miranda hearing, defendant's confession would still have been admitted for the jury's consideration. In this regard, we note that defendant testified at the hearing and asserted he was "high" from smoking marijuana when police questioned him, and that he suffered from developmental disabilities. P.D.W., supra, at 5-6. In other words, R.W., who clearly had a bias toward her son, would have offered only cumulative testimony at the hearing. Most importantly, we are confident R.W.'s testimony at the Miranda hearing would not have mattered because the trial judge expressly found credible the officers' testimony that defendant knowingly and voluntarily waived his rights and confessed. Id. at 6.
Although not necessarily relevant to defendant's IAC claim, we note that both defendant and his mother testified to these facts before the jury, which obviously rejected defendant's claim that his confession was not voluntarily and knowingly given. Id. at 12-13.
Furthermore, neither trial counsel's cross-examination of A.P., nor his failure to request a hearing pursuant to State v. Guenther, 181 N.J. 129 (2004), demonstrated a prima facie case of ineffective assistance. "Guenther created a narrow exception to N.J.R.E. 608 and held that 'in limited circumstances and under very strict controls a defendant has the right to show that a victim-witness has made a prior false criminal accusation for the purpose of challenging that witness's credibility.'" State v. A.O., 198 N.J. 69, 93 (2009) (quoting Guenther, supra, 181 N.J. at 154).
"In deciding whether to permit the impeachment of a victim-witness who allegedly made a prior false accusation, trial courts must first conduct an admissibility hearing pursuant to N.J.R.E. 104." Guenther, supra, 181 N.J. at 157. Factors to be considered in deciding the issue of admissibility include
1. whether the credibility of the victim-witness is the central issue in the case;Effective July 1, 2007, after the trial in this case, N.J.R.E. 608 was amended by the addition of a new subparagraph (b), which provides,
2. the similarity of the prior false criminal accusation to the crime charged;
3. the proximity of the prior false accusation to the allegation that is the basis of the crime charged;
4. the number of witnesses, the items of extrinsic evidence, and the amount of time required for presentation of the issue at trial; and
5. whether the probative value of the false accusation evidence will be outweighed by undue prejudice, confusion of the issues, and waste of time.
[Ibid.]
The credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to Rule 104(a), that the witness knowingly made the prior false accusation.See also, A.O., supra, 198 N.J. at 93.
As to the cross-examination of A.P., the trial record belies any IAC claim. Without satisfying the strictures of a Guenther hearing, defense counsel elicited from A.P. that she doubted her daughter's claim was true, she continued to visit defendant after his arrest and J.P.G. had made a similar claim regarding an uncle, which her mother believed was untrue.
In his petition and brief, defendant attaches some significance to his bald assertion that J.P.G. had no relative who was an uncle. Even if that was true, we fail to see the significance of the claim. A.P. asserted the existence of the child's uncle.
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Defendant argues that there should have been a Guenther hearing regarding false claims of sexual misconduct made by J.P.H. against F.C. However, defendant's assertion that J.P.H. made such a false claim is unsupported by anything in the record. See State v. Porter, 216 N.J. 343, 355 (2013) ("[A] defendant must allege specific facts and evidence supporting his allegations"); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J. 199 (1999). A.P. never testified to such a false accusation, nor was defendant's petition supported by an affidavit or certification from A.P., as the PCR judge noted. Moreover, defendant certified that trial counsel told him that "he did not locate [F.C.] or couldn't."
We conclude defendant's IAC claim regarding appellate counsel, and the remaining claims we have not specifically addressed, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION