STATE OF NEW JERSEY VS. T.M.(05-01-0010, MIDDLESEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0506-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

T.M.,

Defendant-Appellant.
______________________________

Submitted November 15, 2016 – Decided May 31, 2017

Before Judges Koblitz and Sumners.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
05-01-0010.

Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
 Defendant T.M.1 appeals from the Law Division's July 9, 2015

order denying his petition for post-conviction relief (PCR)

without an evidentiary hearing. He presents the following single-

point argument:

THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
COUNSEL'S INEFFECTIVE AND INADEQUATE
INVESTIGATION.

For the reasons that follow, we affirm.

In light of the issue raised on appeal, we briefly discuss

the prior procedural history, including the evidentiary hearing

ordered by our Supreme Court resulting from defendant's direct

appeal of his conviction and sentence.

On November 15, 2005, defendant was convicted by a jury of

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count

one), first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)

(count two), first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a) (count three), second-degree sexual assault, N.J.S.A.

2C:14-2(b) (count four), second-degree sexual assault, N.J.S.A.

2C:14-2(b) (count five), second-degree endangering the welfare of

a child, N.J.S.A. 2C:24-2(a) (count six), first-degree endangering

1
Pursuant to Rule 1:38-3(d)(10), we use initials to protect the
identity of the sexual assault victim.

2 A-0506-15T4
the welfare of a child, N.J.S.A. 2C:24-4(b)(3) (count seven), and

second-degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(b)(4) (count eight). On February 6, 2006, defendant was

sentenced to an aggregate term of thirty-years in prison with a

fifteen-year period of parole ineligibility.

On defendant's direct appeal of his conviction and sentence,

we affirmed, except for count seven, which we molded to a second-

degree conviction. State v. T.M., No. A-6028-05 (App. Div. May

28, 2009).

The State's petition for certification was granted. State

v. T.M., 200 N.J. 369 (2009). Defendant then filed a cross-

petition for certification claiming he now had possession of his

signed written consent form to search his computer and camera that

did not check the box waiving his right to be present during the

search. In response, our Supreme Court remanded the matter to the

trial court "to reconsider whether defendant waived his presence

during the search and, if he did not, whether the evidence seized

was properly admitted." State v. T.M., 201 N.J. 143, 143-44

(2010). The Court also retained jurisdiction. Id. at 144.2

2
The State's subsequent motion for reconsideration on the basis
that the defendant's prior testimony authenticated the consent to
search form was denied on February 10, 2010.

3 A-0506-15T4
 On remand, the same judge who presided over the trial and

sentenced defendant, conducted an evidentiary hearing. Defendant

testified that on the night of January 15, 2004, three police

officers arrived at his house and then transported him to police

headquarters to interrogate him. Defendant contended the

questioning stopped when police placed in front of him "a consent

form to search his house for . . . a computer and a camera."

Defendant asserted that he signed the form, but did not check the

box waiving his right to be present during the search of the

computer and camera, and that police assured him that he could be

present.

Defendant's forensic expert witness, Karl Schaffenberger,

opined that, based upon his examination of the consent to search

forms produced by defendant and the State, there was no evidence

indicating that defendant's consent form was tampered with to

remove the check mark waiving defendant's right to be present

during the search of the computer and camera. With respect to the

State's consent form, Schaffenberger believed that there were

three pens used on the form, and the pen used by defendant to sign

his name, was not the same pen used to check the box on the form.

However, he could not determine who used the pen to check the box

waiving defendant's right to be present at the search.

4 A-0506-15T4
 Middlesex County Prosecutor's Investigator, George Trillhaase

testified that he discussed the consent to search form with

defendant before defendant signed it. He recalled that either he

or defendant checked the waiver box after he told defendant that

he had the right to be present during the search. However,

Trillhaase could not recall how many pens were used when the

consent form was executed.

On March 12, 2013, the judge issued a twenty-five page written

decision upholding the search. The judge found that the "[State]

has provided sufficient[,] clear[,] and positive testimony to show

that the document in question was not a forgery, and that the

defendant's consent to search was freely given and likely included

a waiver of his right to be physically present during the execution

of the search[.]" The judge reasoned that, despite not finding a

"clear explanation for how [defendant] wound up with a [signed

consent] form that has an unchecked waiver box," the testimony

sufficiently "show[ed] that [defendant] waived his presence during

the search and that the search of his home and the evidence

produced was properly admitted[.]" Relying upon State v. King,

44 N.J. 346, 352-53 (1965), which set forth factors to determine

if the consent to search is coerced, the judge noted that

defendant's consent was voluntary because he gave consent

5 A-0506-15T4
believing the police would not find contraband, and he

affirmatively assisted the police officers with the search.

In addition, the judge determined that defendant and his

expert were not credible. To highlight defendant's lack of

believability, the judge noted that during a pre-trial motion to

suppress the computer and camera search and seizure, defendant did

not contend he exercised his right to be present during the search

by leaving a box on the consent form unchecked.

Defendant sought to appeal the decision, but the Supreme

Court, which had retained jurisdiction, denied his cross-petition

for certification on October 18, 2013. State v. T.M., 216 N.J.

13 (2013). Three months later, the Court determined that the

State's petition for certification was "improvidently granted,"

and entered an order dismissing the State's appeal.

On January 10, 2014, defendant filed a pro se PCR petition

claiming ineffective assistance of counsel due to trial counsel's

failure to investigate the issue of the voluntariness of the

consent to search his computer and camera. Defendant was

subsequently assigned counsel, who submitted a brief and

incorporated defendant's pro se arguments.

Following argument on July 9, 2015, the PCR judge issued an

order and oral decision denying defendant relief without an

evidentiary hearing. The judge determined that the PCR request

6 A-0506-15T4
was procedurally deficient because adjudication on the issue of

voluntariness and scope of the consent to search was previously

litigated during the remanded evidentiary hearing, and therefore

may not be re-litigated on a PCR petition pursuant to Rule 3:22-

5. Moreover, the judge reasoned that even if he granted defendant

a hearing concerning his contention that counsel was ineffective

with respect to the consent to search, the hearing would have

produced the same outcome as the March 2010 hearing, that

"[defendant's] consent was validly given to [conduct the] search

without him being present."

Before us, defendant contends that the PCR judge erred in

denying an evidentiary hearing because his "claim was not

predicated on the consent to search form, which was previously

litigated, but rather concerned trial counsel's failure to

investigate the consent search." We disagree and conclude that

the judge was correct in denying PCR without an evidentiary

hearing.

A court reviewing a PCR petition based on claims of

ineffective assistance should an evidentiary hearing if a

defendant establishes a prima facie showing in support of the

requested relief. State v. Preciose, 129 N.J. 451, 462 (1992).

The mere raising of a claim for PCR does not entitle a defendant

to an evidentiary hearing. State v. Cummings, 321 N.J. Super.

7 A-0506-15T4
154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When

determining whether to grant an evidentiary hearing,

the PCR court must consider the facts in the light most favorable

to the defendant to determine if a defendant has established a

prima facie claim. Preciose, supra, 129 N.J. at 462-63. A hearing

should be conducted only if there are disputed issues as to

material facts regarding entitlement to PCR that cannot be resolved

based on the existing record. State v. Porter, 216 N.J. 343, 354

(2013).

"[I]n order to establish a prima facie claim, a petitioner

must do more than make bald assertions that he was denied the

effective assistance of counsel. He must allege facts sufficient

to demonstrate counsel's alleged substandard performance."

Cummings, supra, 321 N.J. Super. at 170. When claiming defense

counsel inadequately investigated, the defendant "must assert the

facts that an investigation would have revealed, supported by

affidavits or certifications based upon the personal knowledge of

the affiant or the person making the certification." Ibid. (citing

R. 1:6-6).

"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 brought pursuant

to this rule or prior to the adoption thereof, or in any appeal

8 A-0506-15T4
taken from such proceedings." R. 3:22-5. PCR proceedings are not

an opportunity to re-litigate claims already decided on the merits

in prior proceedings. State v. McQuaid, 147 N.J. 464, 483 (1997)

(citing R. 3:22-5). If an issue has been determined on the merits

in a prior appeal, it cannot be re-litigated in a later appeal of

the same case, even if of constitutional dimension. Id. at 483-

84; State v. White, 260 N.J. Super. 531, 538 (App. Div. 1992),

certif. denied, 133 N.J. 436 (1993).

Here, defendant's bald assertions did not establish a prima

facie case of ineffective assistance of counsel, and did not

warrant an evidentiary hearing. Likewise unpersuasive is

defendant's attempt to re-fashion his arguments from the prior

remand evidentiary hearing to overcome the procedural bar of Rule

3:22-5. There is no material distinction between the arguments

raised then and now on PCR appeal. Defendant's contention that

trial counsel failed to investigate the validity of the consent

to search form is procedurally barred as the consent to search

form was fully litigated on the merits at the remand evidentiary

hearing. Moreover, even if we consider defendant's arguments,

they are without merit. R. 2:11-3(e)(2).

Affirmed.

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