Opinion
DOCKET NO. A-0363-11T1
09-15-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID C. ROTH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall and Nugent. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-03-1076. Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by NUGENT, J.A.D.
Defendant David Roth was sentenced in 2007 to a seven-and-one-half year prison term after a jury found him guilty of fifteen counts of endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(b), for possessing child pornography. His convictions and sentence having been affirmed on appeal, State v. Roth, No. A-1371-07 (App. Div. October 20, 2009), and the Supreme Court having denied certification, State v. Roth, 201 N.J. 273 (2010), defendant filed a petition for post-conviction relief (PCR) in April 2010 and amended it in January 2011.
Defendant's petition was denied by Judge Edward J. McBride, Jr., who delivered an opinion from the bench on March 4, 2011, and supplemented it in a comprehensive written opinion dated March 14, 2011. Defendant appeals from the implementing order and raises the following points for our consideration:
POINT I - THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.A) THE TRIAL COURT SHOULD HAVE HELD A HEARING DESPITE THE ABSENCE OF A FORMAL MOTION SINCE DEFENDANT'S LETTER WAS TANTAMOUNT TO A FORMAL MOTION. B) THE LOWER COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER COUNSEL'S REPRESENTATION OF DEFENDANT GAVE RISE TO A CONFLICT OF INTEREST REQUIRING THE SUBSTITUTION OF COUNSEL [NOT PRESENTED BELOW].
POINT II - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT III - THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.
POINT IV - THE LOWER COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN ADJOURNMENT TO PREPARE FOR ORAL ARGUMENT ON THE PETITION. THUS, THE LOWER COURT ORDER MUST BE REVERSED.
POINT V - THE LOWER COURT ORDER MUST BE REVERSED SINCE THE COURT FAILED TO HOLD A HEARING TO DETERMINE WHETHER THE ASSIGNMENT OF NEW COUNSEL WAS WARRANTED.
POINT VI - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
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 ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
In a supplemental brief, defendant raises the following additional points, which "are not intended as [new] issues, but as elaborations of issues and supporting case law, not directly addressed in the written opinion of the lower court, presented in defendant's pro se brief to that court":
I. BAR OF GROUNDS EXPRESSLY ADJUDICATED. A. MERGER ISSUES.
II. I.A.C.
III. [A WITNESS'] TESTIMONY.
IV. I.A.C. DIRECTED VERDICT . . . INFERENCE.
V. OVERLY BROAD. . . .
VI. I.A.C. FOR FAILING TO ADDRESS THE TESTIMONY . . . FORENSIC. . . .
VII. BAR TO GROUNDS NOT RAISED . . . .
VIII. [THERE IS NO POINT HEADING FOR THIS ARGUMENT, WHICH CONCERNS DEFENDANT'S REFUSAL TO ENDORSE HIS COUNSEL'S LETTER BRIEF].
IX. I.A.C. BY APPELLATE COUNSEL.
X. . . . SHOULD HAVE MERGED.
XI. WRONG CASE.
XII. [NO POINT HEADING].
XIII. PROSECUTOR'S PREJUDICIAL SUMMATION.
XIV. . . . BURDEN . . . TO PROVE . . . CERTIFICATION. . . .
XV. JOINTLY OCCUPIED PREMISES.
We have renumbered the point headings in defendant's pro se brief for consistency and clarity. Some of defendant's arguments are preceded by roman numerals, others are not, and it is sometimes difficult to discern transitions between arguments.
We affirm the order denying defendant's PCR petition for the reasons given by Judge McBride in his comprehensive oral and written decisions. The arguments now raised by defendant that he did not present to Judge McBride, as well as those in his supplemental brief, are without 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