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NOT FOR PUBLICATION WITHOUT THE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.
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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
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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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