Opinion
DOCKET NO. A-0720-14T2
02-22-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. T.E., 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 (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-09-1073. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant T.E. appeals from a June 30, 2014 order denying his petition for post-conviction relief (PCR), without an evidentiary hearing. He contends that he received ineffective assistance of trial counsel. The PCR judge found one issue to be procedurally barred and the other claims lacked merit, thus denying the request for an evidentiary hearing. Having considered defendant's arguments in light of the record and controlling law, we affirm.
I.
The record reveals the following facts and procedural history. Tried to a jury, defendant was convicted of seven counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), (2)(c), ten counts of endangering the welfare of a child, N.J.S.A. 2C:24-4(a), one count of sexual assault, N.J.S.A. 2C:14-2(b), and two counts of aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). He was sentenced to an aggregate term of sixty years with eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant filed a direct appeal. In an unpublished opinion, we affirmed the convictions, but remanded the matter for further consideration with respect to the sentences imposed. State v. T.E., No. A-3602-06 (App. Div. July 8, 2010) (slip op. at 27). Defendant's petition for certification was denied by the Supreme Court. State v. T.E., 204 N.J. 41 (2010).
The facts concerning defendant's sexual offenses against his step-daughter were set forth at length in our opinion and will not be repeated here.
At the resentencing, the judge imposed the same sentence. Defendant appealed this sentence and we considered his appeal before an Excessive Sentence Oral Argument (ESOA) Panel on February 8, 2011. We again remanded to the trial court for resentencing before a different judge, who imposed an aggregate term of thirty-seven years with eighty-five percent to be served before parole eligibility under NERA.
Thereafter, defendant filed a petition for PCR on January 26, 2012, which was dismissed based upon the failure of defendant's counsel to file a brief in support of the petition. Defendant's counsel filed the present petition for PCR on April 5, 2013. The PCR judge, James W. Palmer, Jr., heard oral argument on May 15, 2014, and issued an order and thorough eighteen-page written decision on June 30, 2014, denying defendant's petition in its entirety without an evidentiary hearing. Defendant appeals from the order denying PCR.
On appeal, defendant presents the following issues for our consideration:
POINT ONE
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO OBJECT TO TESTIMONY ELICITED BY THE STATE FROM DR. DAVID HULBERT NOT ONLY OPINING K.R. HAD BEEN SEXUALLY ACTIVE, BUT ALSO THAT SHE HAD BEEN SEXUALLY ABUSED.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO ADEQUATELY PREPARE A CRUCIAL ALIBI DEFENSE WITNESS [P.E.], WHICH RESULTED IN CROSS-EXAMINATION ADVERSELY IMPACTING HER CREDIBILITY, AND WHICH COULD HAVE BEEN PREVENTED HAD COUNSEL PROPERLY PREPARED HER FOR SUCH QUESTIONING.
POINT TWO
THE POST-CONVICTION RELIEF COURT ERRED IN REJECTING THAT ASPECT OF THE DEFENDANT'S PETITION REFERENCING DR. HULBERT'S INADMISSIBLE EXPERT TESTIMONY ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.
We find no merit to these contentions, Rule 2:11-3(e)(2), and affirm substantially for the reasons stated by Judge Palmer in his cogent and comprehensive written opinion. We add these comments.
To show ineffective assistance of counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987); State v. Miller, 216 N.J. 40, 58 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). First, "[t]he defendant must demonstrate [] that counsel's performance was deficient." State v. Parker, 212 N.J. 269, 279 (2012) (citation omitted). Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense." Ibid. A defendant is not entitled to an evidentiary hearing on a PCR petition unless he presents legally competent evidence to support both prongs of the Strickland test. State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014).
A.
To establish that his trial counsel was deficient, defendant must show his "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Parker, supra, 212 N.J. at 279 (citation and internal quotation marks omitted). In making that showing, defendant "must overcome a strong presumption that counsel rendered reasonable professional assistance." Ibid. "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).
To meet the second prong, defendant must also show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Parker, supra, 212 N.J. at 279-80 (citation and internal quotation marks omitted). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).
Defendant erroneously argues he established that trial counsel was unprepared for trial and that his defense suffered as a result of the lack of preparation. He first points to the testimony of Dr. Hulbert. As discussed below, this issue was properly procedurally barred. The doctor's testimony was admitted as the victim's treating physician. He did not examine her for the purpose of collecting evidence against defendant. Further, the State did not present him as an expert. His testimony fell within the proper scope of a treating physician and, therefore, the lack of objection by defendant's trial counsel was not ineffective. This argument clearly fails under the first prong of the Strickland standard, as counsel acted reasonably.
Next, defendant contends that his counsel failed to prepare and mount an alibi defense. The purported alibi defense was his aunt's account that defendant was at a party during one of the incidents. Although the court chastised the late submission of a partial alibi defense, defendant was still permitted to present one. Moreover, the late submission was not due to any error by defendant's attorney. Defendant's family brought the alibi defense to counsel's attention during the proceedings. As the PCR judge noted, "[t]rial counsel . . . had reviewed the discovery in the case extensively over the approximately two years leading up to trial and [d]efendant never mentioned going to the party . . . . Trial counsel owed a duty to review discovery with his client and no one else." Defense counsel owed a duty to defendant, not defendant's family. Moreover, this was only a partial defense for one allegation of the numerous charges. Defendant seems to be ignoring the wealth of strong evidence against him. Again, this argument clearly fails under both prongs of the Strickland standard, as counsel acted reasonably and there is little probability that better preparation of the witness would have resulted in a different outcome.
B.
Moreover, the PCR judge properly held that defendant was procedurally barred from raising arguments concerning the testimony of Dr. Hulbert. Rule 3:22-5 provides that a "prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding . . . or in any appeal taken from such proceedings." Thus, the application of this standard requires the "[p]reclusion of consideration of an argument presented in post-conviction relief proceedings . . . if the issue raised is identical or substantially equivalent to that adjudicated previously on direct appeal." State v. Marshall, 173 N.J. 343, 351 (2002) (citations and internal quotation marks omitted). A PCR claim is based upon the "same ground" as a claim already raised by direct appeal when "the issue is identical or substantially equivalent" to the issue previously adjudicated on the merits is barred. State v. McQuaid, 147 N.J. 464, 484 (1997).
Defendant's assertion of ineffective assistance of counsel is an attempt to re-litigate his argument raised on direct appeal challenging the testimony of Dr. Hulbert. PCR is not another avenue for a defendant to submit the same arguments asserted on direct appeal. See McQuaid, supra, 147 N.J. at 484.
Defendant contends that, although the issues raised by appellate counsel and in the PCR petition both relate to Dr. Hulbert's testimony, the arguments were about different aspects of the testimony. This argument is unconvincing. As the PCR judge concluded, "[t]he Appellate Division directly addressed the propriety of Dr. Hulbert's testimony on direct appeal and found it to be proper." Further, "[b]ecause the Appellate Division concluded that allowing Dr. Hulbert's trial testimony was proper, the issue cannot be re-litigated under the guise of post-conviction relief."
Defendant argues that appellate counsel focused upon the hearsay testimony of statements made by K.R. to Dr. Hulbert, while the PCR petition focused upon Dr. Hulbert's opinion that K.R. had been sexually abused although he was not qualified as an expert. Dr. Hulbert was not testifying as an expert witness, but as a treating physician. The testimony was appropriate and defendant's attempt to re-litigate it is barred.
We conclude the PCR judge correctly determined that defendant's claims were without merit and that defendant failed to state a prima facie claim under either Strickland prong. Therefore, we agree with the court's conclusion that an evidentiary hearing was not required and would not have assisted the court in its determination. State v. Marshall, 148 N.J. 89, 158 ("If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether defendant is entitled post-conviction relief . . . then an evidentiary hearing need not be granted."), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION