STATE OF NEW JERSEY VS. C.D. (08-05-0459, UNION 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NOT FOR PUBLICATION WITHOUT THE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-3842-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

C.D.,

Defendant-Appellant.
_________________________

Submitted September 18, 2019 – Decided September 25, 2019

Before Judges Fuentes and Haas.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 08-05-0459.

Joseph E. Krakora, Public Defender, attorney for
appellant (Anthony J. Vecchio, Designated Counsel, on
the brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Kelsey A. Ball, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant C.D. appeals from the January 11, 2018 Law Division order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

As discussed in our opinion on defendant's direct appeal, a Union County

grand jury returned an indictment charging defendant with "one or more acts of

sexual penetration upon his stepdaughter R.G.R.," a child who was under the

age of thirteen at the time of the assaults. State v. C.D., No. A-0055-12 (App.

Div. Aug. 12, 2015) (slip op. at 1). Following a trial, a jury convicted defendant

of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); 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). Ibid. The court sentenced defendant to an

aggregate eighteen-year term, subject to an eighty-five percent period of parole

ineligibility, and five years of parole supervision pursuant to the No Early

Release Act, N.J.S.A. 2C:43-7.2. Id. at 3.

Defendant appealed his conviction and sentence. We affirmed, id. at 4,

and the Supreme Court denied certification. State v. C.D., 223 N.J. 558 (2015).

Defendant later filed a petition for PCR, contending in a brief submitted

on his behalf by his assigned attorney, that his trial counsel rendered ineffective

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assistance due to the attorney's failure to conduct a thorough pre-trial

investigation that would have led to the discovery of witnesses who "would have

exonerated" defendant. Defendant's attorney also argued that the trial counsel

"failed to provide [defendant] with a plea offer that was made during trial."

Defendant submitted a supplemental brief on his own behalf, and argued

that his trial attorney incorrectly advised him that the State had the burden of

proving an act of sexual penetration to sustain the charge of first-degree

aggravated sexual assault under N.J.S.A. 2C:14-2(a). In addition, defendant

asserted that his attorney failed to file a motion to suppress R.G.R.'s videotaped

statement to the prosecutor's office.

In a thorough written decision, Judge Robert Kirsch considered these

contentions and denied defendant's petition. The judge concluded that defendant

failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668,

687 (1984), which requires a showing that trial counsel's performance was

deficient and that, but for the deficient performance, the result would have been

different.

In so ruling, Judge Kirsch found that defendant's claim that his attorney

should have presented witnesses to exonerate him lacked merit because

defendant "d[id] not identify the names of any witnesses, describe them or what

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testimony they may have offered, or whom he sought to have called [as

witnesses,] but were not. Instead, [defendant] ma[de] a vague assertion with no

support."

Judge Kirsch determined that defendant also failed to present any

evidence that the State ever made a plea offer to his attorney during the course

of the trial. Therefore, the judge rejected defendant's bald assertion that his

attorney was ineffective by failing to apprise him of this non-existent offer.

Turning to the arguments defendant raised in his supplemental brief,

Judge Kirsch found that defendant's attorney properly advised defendant that he

could not be convicted of aggravated sexual assault without testimony or

evidence of sexual penetration because that was clearly one of the elements of

this offense under N.J.S.A. 2C:14-2. The judge also noted that the State

presented this required evidence to the jury through the admission of R.G.R.'s

videotaped statement. Contrary to defendant's contention, the judge also found

that his trial attorney had made a motion to suppress this statement prior to the

trial, although that motion was not successful. See C.D., (slip op. at 2-3).

Therefore, Judge Kirsch concluded that defendant did not prove a prima

facie case of ineffective assistance of counsel, and denied defendant's petition.

This appeal followed.

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 In the brief submitted on his behalf by his appellate counsel, defendant

raises the following contentions:

I. THE PCR COURT ERRED IN NOT
GRANTING DEFENDANT AN EVIDENTIARY
HEARING WHERE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL
DURING HIS TRIAL.

A. Trial counsel was ineffective for failing to
conduct a thorough pre-trial investigation.

B. Trial counsel was ineffective for failing to relay
a plea offer made during trial.

In addition, defendant presents the following issues in his pro se

supplemental brief:

POINT I

THE [PCR] COURT ERRED BY DENYING
[DEFENDANT] AN EVIDENTIARY HEARING TO
ESTABLISH INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN HIS ATTORNEY PROVIDED
ERRONEOUS ADVICE LEADING TO THE
REJECTION OF A PLEA OFFER FROM THE
STATE.

POINT 2

THE [PCR] COURT ERRED BY DENYING
[DEFENDANT] A NEW TRIAL DUE TO
INEFFECTIVE ASSISTANCE OF COUNSEL WHEN
HIS ATTORNEY FAILED TO FILE A CLEARLY
MERITORIOUS MOTION TO SUPPRESS

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 PORTIONS OF THE VIDEOTAPE ALLEGING
PENETRATION.

POINT 3

THE [PCR] COURT ERRED BY DENYING
[DEFENDANT] AN EVIDENTIARY HEARING TO
ESTABLISH THAT THE PROSECUTION
WITHHELD EXCULPATORY EVIDENCE FROM
THE DEFENSE IN CONTRAVENTION TO THE
DUE PROCESS CLAUSE OF THE 5TH AND 14TH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AS WELL AS ARTICLE 1, ¶ 1 OF
THE NEW JERSEY STATE CONSTITUTION OF
1947.

When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled to the requested

relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,

459 (1992). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

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

evidentiary hearing and the defendant "must do more than make bald assertions

that he [or she] was denied the effective assistance of counsel." State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts

should grant evidentiary hearings and make a determination on the merits only

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if the defendant has presented a prima facie claim of ineffective assistance.

Preciose, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obliged to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his or her

right to a fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 52

(1987). Under the first prong of the test, the defendant must demonstrate that

"counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at

687. Under the second prong, the defendant must show "that counsel's errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable." Ibid. That is, "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694.

There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not

presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate with

"reasonable probability" that the result would have been different had he or she

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received proper advice from his or her trial attorney. Strickland, 466 U.S. at

694.

Having considered defendant's contentions in light of the record and the

applicable law, we conclude that they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We affirm the denial of

defendant's PCR petition without an evidentiary hearing substantially for the

reasons detailed at length in Judge Kirsch's well-reasoned and comprehensive

written opinion.

Affirmed.

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