STATE OF NEW JERSEY VS. R.P.D. (11-04-0832, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-3509-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.P.D.,

Defendant-Appellant.
____________________________

Submitted October 28, 2019 – Decided January 15, 2020

Before Judges Sabatino and Sumners.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 11-04-0832.

Joseph E. Krakora, Public Defender, attorney for
appellant (Janet Anne Allegro, Designated Counsel, on
the briefs).

Mark Musella, Bergen County Prosecutor, attorney for
respondent (Ian C. Kennedy, Assistant Prosecutor, of
counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant R.P.D.1 appeals from a Law Division order denying his petition

for post-conviction relief (PCR) without an evidentiary hearing. Before us, he

presents the following arguments:

POINT I THE COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS
CONTENTION THAT HE FAILED TO
RECEIVE EFFECTIVE LEGAL
REPRESENTATION AT THE TRIAL
LEVEL SINCE TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO
ADDRESS THE TRIAL COURT'S USE
OF THE INAPPROPRIATE LEGAL
STANDARD REGARDING
DEFENDANT'S REQUEST TO
PROCEED PRO SE.

A. Ineffective Assistance of Trial Counsel
Regarding Defendant's Request to Proceed
Pro Se.

B. Ineffective Assistance of Appellate
Counsel Regarding Defendant's Request to
Proceed Pro Se. (Not Raised Below)

POINT II THE PCR RECORD ESTABLISHED
DEFENDANT WAS DEPRIVED OF
EFFECTIVE ASSISTANCE OF PCR
COUNSEL.

1
We use initials to protect the identity of the victim.
A-3509-17T1
2
 POINT III DEFENDANT WAS DEPRIVED OF
EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL BECAUSE COUNSEL
FAILED TO EVEN ATTEMPT TO
CONDUCT AN INVESTIGATION AND
INTERVIEW OF POTENTIAL
WITNESSES AND, THEREFORE, THE
PCR COURT ERRED IN FINDING
COUNSEL'S DETERMINATION THAT
AN INVESTAGTION WOULD BE
FRUITLESS WAS REASONABLE.

POINT IV TRIAL COUNSEL WAS INEFFECTIVE
FOR FAILING TO OBJECT TO CSAAS
TESTIMONY AND TO OBTAIN AN
EXPERT TO COUNTER THE
TESTIMONY, WHICH WAS
PARTICULARLY REQUIRED IN LIGHT
OF THE RECENTLY DECIDED CASE,
STATE V. J.L.G., 234 N.J. 265 (2018).

In his pro se supplemental brief, defendant argues:

POINT 1 DEFENDANT WAS DENIED HIS
CONSTITUTIONAL RIGHT TO SELF-
REPRESENTATION. THE COURT
FAILED TO APPLY THE
APPROPRIATE LEGAL STANDARD
FOR SELF-REPRESENTATION AND
ERRED BY NOT ORDERING A NEW
TRIAL.

POINT 2 TRIAL ATTORNEY WAS
INEFFECTIVE FOR NOT REQUESTING
A NEW TRIAL BASED ON NEWLY
DISCOVERED EVIDENCE WHICH
DIRECTLY EFFECTS RELIABILITY OF
THE STATE'S PRIMARY WITNESS'

A-3509-17T1
3
 TESTIMONY REQUIRING A N.J.R.E.
104 HEARING TO ASCERTAIN IF THE
NEWLY DISCOVERED EVIDENCE IS A
RESULT OF BRADY2 VIOLATION.

POINT 3 BASED ON RECENT COURT
DECISIONS AND EXPERT
TESTIMONY DETERMINED TO BE
INADMISSABLED. THE DEFENDANT
IS ENTITLED TO BENEFIT FROM
FULL RETROACTIVITY OF THE NEW
LAW BASED ON THE
CIRCUMSTANCES AND THE FACTS
OF THE CASE.

Having reviewed the record considering the applicable legal standards, we

reverse and remand for retrial.

I

The procedural history and trial evidence are detailed in our unpublished

decision affirming defendant's conviction and sentence on direct appeal, State

v. R.D., No. A-5735-11 (App. Div. Sept. 20, 2013).3 A brief summary of the

relevant facts and proceedings will suffice here.

Defendant was charged with six counts of second-degree sexual assaults

upon his daughter while she was under the age of thirteen, N.J.S.A. 2C:14-2(b);

2
Brady v. Maryland, 373 U.S. 83 (1963).
3
Defendant's direct appeal did not include his middle initial.
A-3509-17T1
4
three counts of second-degree engaging in sexual conduct that would harm,

impair, or debauch the morals of his daughter while under a legal duty to care

for her, N.J.S.A. 2C:24-4(a); two counts of first-degree aggravated sexual

assault of his daughter while she was under the age of thirteen, N.J.S.A. 2C:14 -

2(a)(1); one count of third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and

one count of third-degree attempt to cause or recklessly cause significant bodily

injury to his daughter, N.J.S.A. 2C:12-1(b)(7).

The State's proofs at the February 2012 bench trial essentially showed that

defendant repeatedly sexually assaulted his daughter beginning when she was

four years old until she reached the age of ten. The State primarily relied upon

the testimony of the then fifteen-year-old daughter, who provided a detailed

narrative account of the abuse inflicted upon her by her father. The State also

presented testimony from the Bergen County Prosecutor Office's investigating

detective concerning videotaped interviews of the daughter when she was

thirteen years old about the sexual abuse. The detective also testified about her

interview of defendant's younger daughter, who denied abuse. Also testifying

for the State was its expert, a psychologist who explained the theory of Child

Sexual Abuse Accommodation Syndrome (CSAAS) regarding "a child's often

counter-intuitive reactions to sexual abuse." State v. W. B., 205 N.J. 588, 611

A-3509-17T1
5
(2011) (citing State v. J.Q., 130 N.J. 554, 579 (1993)). Defendant elected not to

testify and did not call any witnesses on his own behalf.

In an extensive oral opinion, the trial judge found defendant guilty of all

charges. The judge largely credited the daughter's testimony and indicated there

was "no doubt in [his] mind" that accusations of sexual abuse by defendant were

truthful. The judge only briefly alluded to the expert's CSAAS testimony and

merely noted, in a conclusory fashion, he had taken it into consideration. On

July 3, 2012, the judge sentenced defendant to a seventy-year aggregate prison

term, subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.

On direct appeal, we upheld defendant's conviction but, with the State's

consent, remanded for resentencing. Defendant was subsequently resentenced

on May 29, 2014, to an aggregate sixty-two-year prison term subject to NERA.

He appealed his new sentence, which was affirmed by an Excessive Sentence on

Appeal panel of this court on March 10, 2015.

Defendant thereafter filed a timely PCR petition, contending trial counsel

was ineffective for: (1) failing to conduct an adequate investigation and call any

witnesses on his behalf; (2) failing to request a pretrial taint hearing under State

v. Michaels, 136 N.J. 299, 320 (1994), to determine if his daughter's allegations

were tainted by improper investigation techniques; (3) failing to consult with an

A-3509-17T1
6
expert to refute the State's expert; and (4) failing to file motions requested by

defendant. Defendant also contended his constitutional right to represent

himself was improperly denied by the motion judge.

The PCR judge denied defendant's claims without an evidentiary

hearing. In his written decision, the judge explained trial counsel represented

to the trial judge that a CSAAS expert was unnecessary given the State's decision

to present one, to which the trial judge agreed. The judge also explained how

counsel represented to a different judge at a pretrial conference that after

meeting with defendant, an investigator would not be "fruitful or useful" to

conduct any additional investigation to identify potential witnesses to refute

abuse allegations. The PCR judge also determined defendant was properly

denied the right to proceed pro se because he was unable to answer the first three

questions posed by the motion judge in assessing his competence to represent

himself, and "was unable to prove that his relinquishment of his right [to

counsel] was knowing and intelligent." This appeal ensued.

II

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

defendant must show that: (1) counsel's performance was deficient; and (2) the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

A-3509-17T1
7
(1984); State v. Fritz, 105 N.J. 42, 58 (1987). A court reviewing a PCR petition

based on claims of ineffective assistance has the discretion to grant an

evidentiary hearing only if a defendant establishes a prima facie showing in

support of the requested relief. State v. Preciose, 129 N.J. 451, 462-63 (1992).

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

evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

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, 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).

The main thrust of defendant's appeal is that the PCR judge failed to

recognize the motion court did not apply the proper legal standard set forth in

State v. Reddish, 181 N.J. 553, 592-95 (2004), to determine whether he would

be allowed to exercise his constitutional right to represent himself. Defendant

maintains the motion court did not engage in the required colloquy to determine

whether he was knowingly and voluntarily waiving his right to counsel, and that

this error requires a new trial. He asserts trial counsel was ineffective because

A-3509-17T1
8
he failed to argue the proper standard to be applied by the motion court in

deciding his request to represent himself, and that appellate counsel failed to

contend the motion court applied the incorrect standard. In addition, defendant

claims PCR counsel was ineffective because he erred in arguing that defendant

rescinded his request to represent himself, which in turn supported the State's

position.

A defendant's right to self-representation is well settled. "[A] defendant

has a constitutionally protected right to represent himself in a criminal trial."

Faretta v. California, 422 U.S. 806, 816 (1975); see State v. DuBois, 189 N.J.

454, 465 (2007). However, because a waiver of the right to counsel constitutes

a relinquishment of "many of the traditional benefits associated with" that right,

it must be made "knowingly and intelligently." Faretta, 422 U.S. at 835. When

a criminal defendant requests self-representation, the judge must "engage in a

searching inquiry" with him to determine whether the defendant understands the

implications of the waiver. State v. Crisafi, 128 N.J. 499, 510 (1992).

In Crisafi, the Court held that a trial judge must inform the defendants of

"the nature of the charges against them, the statutory defenses to those charges,

and the possible range of punishment." Id. at 511. The judge should also tell the

defendants of "the technical problems they may encounter in acting as their own

A-3509-17T1
9
counsel and of the risks they take if their defense is unsuccessful." Id. at 511-

12. The defendants should be cautioned that they must conduct their defense in

accordance with the relevant rules of procedure and evidence, that "a lack of

knowledge of law may impair their ability to defend themselves," and that in

general it may be unwise not to accept counsel's assistance. Id. at 512.

Over two decades later in Reddish, 181 N.J. at 594, the Court expanded

the Crisafi inquiry.

[T]he Crisafi/Reddish inquiry now requires the trial
court to inform a defendant asserting a right to self-
representation of (1) the nature of the charges, statutory
defenses, and possible range of punishment; (2) the
technical problems associated with self-representation
and the risks if the defense is unsuccessful; (3) the
necessity that defendant comply with the rules of
criminal procedure and the rules of evidence; (4) the
fact that the lack of knowledge of the law may impair
defendant's ability to defend himself or herself; (5) the
impact that the dual role of counsel and defendant may
have; (6) the reality that it would be unwise not to
accept the assistance of counsel; (7) the need for an
open-ended discussion so that the defendant may
express an understanding in his or her own words; (8)
the fact that, if defendant proceeds pro se, he or she will
be unable to assert an ineffective assistance of counsel
claim; and (9) the ramifications that self-representation
will have on the right to remain silent and the privilege
against self-incrimination.

[DuBois, 189 N.J. at 468-69.]

A-3509-17T1
10
In ascertaining whether a defendant's "knowingness" is "real or feigned," a trial

court should ask "appropriate open-ended questions that will require [the]

defendant to describe in his own words his understanding of the challenges that

he will face. . . ." Reddish, 181 N.J. at 595.

Ultimately, the focus "must be on the defendant's actual understanding of

the waiver of counsel." Crisafi, 128 N.J. at 512. All reasonable presumptions

against waiver should be indulged. State v. Gallagher, 274 N.J. Super. 285, 295

(App. Div. 1994). However, a defendant should not be deprived of the right of

self-representation based solely on "the complexity of the proceedings or the

magnitude of the consequences" he faces. State v. Russo, 243 N.J. Super. 383,

401 (App. Div. 1990). Additionally, the goal of the court's colloquy with a

defendant is not to explore whether he possesses any particular "technical legal

knowledge," State v. King, 210 N.J. 2, 19 (2012), and a defendant need not

demonstrate "the skill and experience of a lawyer" before a knowing and

voluntary waiver is found. Reddish, 181 N.J. at 595. Finally, if the appropriate

colloquy is conducted and it is determined that the defendant's waiver of counsel

is knowing and voluntary, that choice "must be honored" even if the court feels

it is a "poor" or "unwise" one. Gallagher, 274 N.J. Super. at 296; State v.

Thomas, 362 N.J. Super. 229, 242-43 (App. Div. 2003).

A-3509-17T1
11
 Applying these principles, we are constrained to conclude the PCR court

erred in finding the motion court applied the proper legal standard when denying

defendant's right to represent himself and that there was no ineffectiveness of

trial and appellate counsel.

After previously voicing complaints about his assigned trial counsel, the

motion court heard defendant's application to represent himself about a month

before the scheduled trial date. The court began with its advice to defendant

that his counsel was a very experienced defense attorney and among the best in

the vicinage, and that he could not pick the assigned counsel that he wanted.

With counsel at his side, defendant argued that he desired to represent himself

because counsel failed "to collect one piece of evidence, interview one witness,

file one motion, . . . on [his]behalf[,]" which constituted "ineffective assistance

of counsel."

Shortly thereafter, the following colloquy occurred:

THE DEFENDANT: Then I'm prepared to go pro se and
I would appreciate it if the Court would allow me to - -

THE COURT: All right. Then let's go through the - -

THE DEFENDANT: Let's.

THE COURT: - - factors. Let's see if you're - - what are
the different parts of a trial? How it begin and how does
it end. What are the various portions of a trial.

A-3509-17T1
12
THE DEFENDANT: Well, I - - I'm not prepared to
answer your questions. If you'd like to give me some
time, I'll study up and I'll come back and we'll talk
about this again another day.

THE COURT: Do you have any idea what the rules of
court are when it comes to conducting a trial?

THE DEFENDANT: As far as specifically what?

THE COURT: Do you know that there are court rules
to be followed?

THE DEFENDANT: Sure. There's probably ways to
present yourself to the judge, to the witnesses, and - -

THE COURT: What does a prosecutor do versus a
defense? What kind of examinations do they do?

THE DEFENDANT: Is this to embarrass me, your
Honor?

THE COURT: No. I'm trying to figure out what your
knowledge is. And so far you have absolutely no
knowledge of what it is to conduct a full blown trial.

THE DEFENDANT: I do not have the - -

THE COURT: Hence, why you have an attorney. So
just from the three - - I'm not even done with the list
yet.

THE DEFENDANT: I'm sure you're not.

THE COURT: I'm only up to the third question, and it's
not meant to embarrass you, it's meant to show you that
you are not competent to be your own attorney.

A-3509-17T1
13
 THE DEFENDANT: I agree.

THE COURT: That it is, as they say, if you're willing
to be an attorney for yourself, then you'll be a fool - -

THE DEFENDANT: I will not go to trial with Mr.
Meehan. I can assure you that.

THE COURT: Well, you're going to have to contact Mr.
Acevedo [of the Public Defender's Office] because [he]
is the only one that has the power to change who your
public defender will be. But I can tell you this, that you
will not be pro se. I find that you are not competent.
There's 20 questions here. You couldn't even answer
the first three.

THE DEFENDANT: I can give you the answers
(indiscernible)

THE COURT: So I do not find that you're competent.
Your case will proceed on February 6th with Mr.
Meehan. And unless Mr. Acevedo decides to change
your public defender, which I can tell you he won't.

At no point did the motion court engage in the full, searching colloquy

described in Faretta, Crisafi, and Reddish to determine whether defendant's

waiver of counsel would be knowing and voluntary. The court did not caution

defendant about the sentence he faced at trial and ask whether he understood the

charges. The judge's mere statement that defendant was not competent to

represent himself because he could not answer three of the first twenty

questions, was not the proper standard. We take no issue with the court's belief

A-3509-17T1
14
that proceeding without counsel was not the best choice for defendant. That

said, the court was erroneous to base its decision on that view, particularly where

the record suggests defendant is literate, willing to research the legal process

that faced him upon self-representation, and to take responsibility for his

decision to proceed pro se. Faretta, 422 U.S. at 835. There is no indication

defendant lacked the competency to waive his right to counsel. Nor is there any

indication that defendant's request to represent himself was not exercised in a

timely, clear and unequivocal fashion. See State v. Harris, 384 N.J. Super. 29,

57-58 (App. Div. 2006).

As our Supreme Court recognized, "[t]he right [of self-representation] is

either respected or denied; its deprivation cannot be harmless." King, 210 N.J.

at 22 (alteration in original) (quoting McKaskle v. Wiggins, 465 U.S. 168, 177

n.8, (1984)). Hence, although a defendant "may have been represented by a

skilled attorney, the evidence against him may have been substantial, and the

verdict may find strong support in the record; that matters not." Ibid. A

defendant has the constitutional right to represent himself without demonstrating

he can do so like a skilled lawyer as long he exercises his right knowingly and

voluntary. Reddish, 181 N.J. at 595.

A-3509-17T1
15
 We find no merit to the State's opposition to this appeal. The State does

not specifically address the legal standard the motion court should have applied

in deciding defendant's request to represent himself. Instead, the State argues

"defendant never unequivocally requested he wanted to represent himself." The

record does not support this argument. Not only was defendant adamant during

the motion hearing that he wanted to represent himself, five days after his

request was denied, defendant wrote a letter to the court reiterating his concerns

about trial counsel and stating he wanted to represent himself.4 We further find

unpersuasive the State's reliance on the trial judge's comment at sentencing that

trial counsel performed "extremely well," in response to defendant's assertion

counsel was ineffective. Counsel's performance is irrelevant to whether

defendant's right to represent himself was improperly denied by the motion

court.

Significantly, when the court heard defendant's request to represent

himself trial counsel remained silent. Counsel had a responsibility to point out

to the court that it should apply the principles articulated in the above noted case

4
The letter is unsigned and was attached to his pro se PCR brief, which was
submitted before he was assigned PCR counsel. There is no indication in the
record that the letter was not received by the court.
A-3509-17T1
16
law in considering defendant's request. Appellate counsel had the same

obligation in pursuing defendant's direct appeal.

In addition, we reject the State's contention that defendant's claim is

procedurally barred under Rule 3:22-4(a) because he should have contended on

direct appeal that the motion court erred in denying him the right to represent

himself. Defendant asserts trial counsel was ineffective for failing to advise the

motion court of the proper legal standard to apply in deciding his motion to

proceed pro se. However, under Rule 3:22-4(a)(2) no procedural bar applies

where the "enforcement of the bar to preclude claims, including one for

ineffective assistance of counsel, would result in fundamental injustice." We

recently held there is was no procedural bar to a PCR claim where the trial court

denied a defendant the right of self-representation because it "would result in a

fundamental injustice." State v. Rose, 458 N.J. Super. 610, 625 (App. Div.

2019).

Moreover, there can be no procedural bar to claims against appellate

counsel and PCR counsel. The bar does not apply where defendant asserts that

appellate counsel and PCR counsel were ineffective for failing to argue his

motion to represent himself was improperly denied because the claims against

them did not become ripe until after the direct appeal and the PCR claim were

A-3509-17T1
17
rejected. See Preciose, 129 N.J. at 460; State v. Webster, 187 N. J. 254, 257

(2006) (ruling that under Rule 3:22-6(d), PCR counsel must advance defendant's

legitimate arguments supported by the record).

We have pondered whether a remand would be appropriate but have

concluded it would serve no useful purpose. It is simply impossible to

reconstruct the situation that existed at the time the motion court queried

defendant about his desire to represent himself. Consequently, we reverse the

denial of PCR relief because the motion court erred in denying defendant his

constitutional right to represent himself.

III

Given our ruling that defendant should be retried and allowed to represent

himself, we need not address defendant's remaining contentions. However, for

the sake of completeness, we do so and conclude they have no merit.

Defendant argues trial counsel was ineffective for not conducting an

adequate investigation by interviewing family members and a Division of Youth

and Family Services 5 caseworker regarding his daughter's failure to show any

signs of being sexually assaulted, or not investigating her mental health

5
The agency is now known as the New Jersey Division of Child Protection and
Permanency.
A-3509-17T1
18
condition. In order to establish that a counsel's inadequate investigation

constitutes ineffective assistance, a defendant must assert facts through

affidavits or certifications based upon personal knowledge, what the

investigation would have revealed and that the inadequacy prejudiced his

defense. R. 1:6-6; see State v. Porter, 216 N.J. 343, 352 (2013). Because

defendant's contentions are unsupported by such affidavits or certifications, his

claim of ineffective assistance is nothing more than "bald assertions" and so fail.

Cummings, 321 N.J. Super. at 170.

Last, defendant contends trial counsel was ineffective for neither

objecting to the testimony of the State's expert witness nor presenting an expert

to refute the State's expert given our Supreme Court's recent ruling in J.L.G.,

234 N.J. at 272, that CSAAS evidence, except as to delayed disclosure, is not

sufficiently reliable to be admissible. As noted above, the trial judge gave little

value to the CSAAS testimony in finding defendant was guilty of all the charges

We begin with the understanding that our review of alleged trial court

errors "is not limitless" and is "bounded by the proofs and objections critically

explored on the record before the trial court by the parties themselves." State v.

Robinson, 200 N.J. 1, 19 (2009). Where, as here, the "issue never was raised

before the [PCR] court, . . . and . . . its legal propriety never was ruled on by the

A-3509-17T1
19
. . . court, the issue was not properly preserved for appellate review." Id. at 18-

19. Defendant's contention does not "go to the jurisdiction of the trial court or

concern matters of great public interest," warranting an exception to the general

prohibition against deciding an issue on appeal that was "not properly presented

to the trial court." Id. at 20 (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J.

229, 234 (1973)). Accordingly, we should not address the merits of defendant's

claim that his trial counsel was ineffective by failing to object to the CSAAS

testimony presented by the State's expert.

Nonetheless, there is no merit to defendant's claim under Strickland's

second prong that he was prejudiced by counsel's failure to challenge the

CSAAS testimony. We also agree with the State that counsel cannot be

ineffective for not objecting to the CSAAS testimony or presenting contrarian

expert testimony considering the admissibility of the testimony was supported

by almost two decades of decisional case law.6 See Strickland, 466 U.S. at 690

6
We noted as such in our unpublished decision affirming defendant's conviction
wherein we rejected the argument that the CSAAS testimony by the State's
expert should not have been admitted. R.D., slip op. at 11. We felt "bound to
follow the precedence of the United States Supreme Court and the Supreme
Court of New Jersey, regardless of whether those precedents are unwise or
outmoded, that the testimony was admissible." Ibid. Also, defense counsel did
not object at trial to the testimony and the record before us was insufficient to
address the testimony's validity. Id. at 12.
A-3509-17T1
20
(finding "the reasonableness of counsel's challenged conduct" is judged "on the

facts of the particular case, viewed as of the time of counsel's conduct"); see

also State v. Allegro, 193 N.J. 352, 366 (2008) ("In gauging whether a valid

claim of ineffective assistance of counsel has been presented, 'the court must

judge the reasonableness of counsel's challenged conduct on the facts of the

particular case, viewed as of the time of counsel's conduct.'" (quoting State v.

Castagna, 187 N.J. 293, 314 (2006))).

Moreover, in J.L.G., the Court announced a new rule of law that has

pipeline retroactive application. State v. G.E.P., 458 N.J. Super. 436, 444-48

(2019); see also State v. Burstein, 85 N.J. 394, 402-03 (1981) (explaining a

court's options in determining the effect of an announcement of a new rule of

law). The new rule of law therefore is inapplicable to defendant's case because

he exhausted the direct appeals of his conviction in 2014,7 four years prior to

the Court's decision in J.L.G. See G.E.P., 458 N.J. Super. at 444-48. Defendant

cannot obtain relief from his conviction through a PCR petition where the new

rule of law upon which he relies is not retroactive to his conviction. See State

v. Cupe, 289 N.J. Super. 1, 11 (App. Div. 1996) (explaining that "a case decided

after a defendant's conviction and sentence has become final may not provide

7
As mentioned above, defendant was resentenced on May 2, 2014.
A-3509-17T1
21
the basis for [PCR] if it announces a new rule of law" unless it is determined the

new rule of law applies retroactively to the defendant's conviction and sentence).

Any arguments asserted by defendant that we have not addressed are

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2).

Reversed and remanded for retrial.

A-3509-17T1
22