NOT FOR PUBLICATION WITHOUT THE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-1035-19T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES MCDOWELL, a/k/a
SISA BOTO and SISA BUTU,
Defendant-Appellant.
___________________________
Argued December 15, 2020 – Decided January 15, 2021
Before Judges Fisher, Gilson and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 10-12-2261.
Alan L. Zegas argued the cause for appellant (Law
Offices of Alan L. Zegas, attorneys; Alan L. Zegas, on
the briefs).
Edward F. Ray, Assistant Prosecutor, argued the cause
for respondent (Mark Musella, Bergen County
Prosecutor, attorney; William P. Miller, Assistant
Prosecutor, of counsel and on the brief; Catherine A.
Foddai, Legal Assistant, on the brief).
PER CURIAM
Defendant Sisa Butu, formerly known as James McDowell, appeals from
an order denying his petition for post-conviction relief (PCR).1 He contends that
his prior appellate counsel, who represented him on his direct appeal, was
ineffective in not raising an argument that he was denied his constitutional right
to counsel of his choice at trial. We disagree and affirm.
I.
The evidence at defendant's trial established that in September 2010, after
having lunch together, defendant and his former girlfriend went to his home.
When the former girlfriend tried to leave, defendant would not let her go and
threatened her with a gun. He then repeatedly raped and sexually assaulted her
for several hours. Eventually, the former girlfriend escaped and, following a
standoff with the police, defendant was arrested.
A jury convicted defendant of seven crimes and a disorderly persons
offense related to the sexual assaults. Specifically, defendant was convicted of:
first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) and (4); two
counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); two counts of
1
In the record, Butu is sometimes spelled Boto, but we use Butu because that
is the spelling used by his current counsel.
A-1035-19T2
2
second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-
2(c)(1); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and
disorderly persons false imprisonment, N.J.S.A. 2C:13-3, as a lesser included
offense of kidnapping.
Defendant appealed his convictions and sentence. On direct appeal, he
raised two arguments: (1) the trial judge's refusal to ask open-ended questions
during jury selection constituted reversible error; and (2) the consecutive
sentences were improper. Finding no reversible errors, we affirmed his
convictions and sentences for the crimes. State v. McDowell, No. A-3848-14T1
(App. Div. Jan. 27, 2017). We remanded for resentencing on the false
imprisonment conviction. Our Supreme Court denied defendant's petition for
certification. State v. McDowell, 230 N.J. 529 (2017).
Thereafter, defendant filed a petition for PCR. On his petition, defendant
was represented by new counsel who argued that defendant's appellate counsel
on his direct appeal had been ineffective in failing to raise three arguments: (1)
the denial of his right to counsel of his choice at trial; (2) the denial of his pretrial
motion to suppress the seizure of the gun; and (3) the introduction of hearsay
evidence at trial.
A-1035-19T2
3
The PCR court heard oral argument but did not grant an evidentiary
hearing. On October 1, 2019, the PCR court issued a written opinion and order
denying defendant's petition.
On this appeal, defendant raises only one argument: he contends that his
prior appellate counsel was ineffective in failing to raise the denial of his right
to choose trial counsel. To place that issue in context, we briefly summarize the
relevant procedural history.
In December 2010 defendant was indicted for the crimes related to the
sexual assaults. He was initially represented by Nancy Lucianna, an attorney he
had hired.
In February 2013, after Lucianna had represented defendant for several
years, she moved to be relieved as defendant's counsel. Lucianna certified that
there had been "a complete breakdown of the attorney-client relationship" that
made "it impossible for" her to represent defendant. The trial court heard oral
argument on that motion and during that argument the court had a brief of f-the-
record sidebar discussion with Lucianna. In February 2013, the trial court
entered an order relieving Lucianna as counsel and granting defendant time to
retain new counsel.
A-1035-19T2
4
Defendant then hired Adolph J. Galluccio to represent him. In February
2014, the trial court scheduled June 23, 2014, as the "firm" trial date.
Sometime in early 2014, the relationship between defendant and Galluccio
broke down. Accordingly, defendant contacted Thomas Ashley, Esq. and asked
him to represent him. In March 2014, Ashley moved to substitute in as new trial
counsel for defendant. In support of that motion, Ashley certified that defendant
had informed him that he and Galluccio "had irreconcilable conflicts[.]" Ashley,
however, was not available to try the matter on the scheduled June 23, 2014 trial
date because he had other professional commitments. Consequently, Ashley
requested the trial court to adjourn the trial date until September 22, 2014 , or
later.
The trial court initially denied that motion without oral argument.
Following a request for reconsideration, the trial court heard oral argument on
April 11, 2014. At that argument, Ashley and Galluccio urged the trial court to
grant the extension so that Ashley could represent defendant at trial. The State
did not object to that application.2
2
During the April 11, 2014 oral argument, the judge stated that she had
previously offered to do a bench trial and both the prosecutor and Galluccio had
agreed that a bench trial "would be the best thing in this particular case."
Defendant suggests that because this discussion occurred when he was not
A-1035-19T2
5
After hearing arguments, the trial court denied the motion. Among other
things, the court noted that the case was then in its fourth year, the court had
previously adjourned the trial for a year so that Galluccio could come up to
speed, and the court had previously set a firm trial date for June 23, 2014. The
trial court then stated that defendant could either proceed to trial with Galluccio
or hire another lawyer who was available to try the case in June 2014.
Defendant, represented by Ashley, moved for leave to appeal the denial
of his request to have Ashley substitute in as counsel. On April 30, 2014, a two-
judge panel of this court granted leave to appeal and summarily affirmed the
trial court's order denying defendant's request to adjourn the trial and have
Ashley substituted in as new trial counsel. Reviewing the procedural history,
the panel found that defendant had been given a fair opportunity to select
counsel of his choice and had not been deprived of his constitutional right to
select counsel because the lawyer he wanted to hire was not available for the
firmly established trial date. State v. McDowell, No. AM-0451-13 (App. Div.
May 1, 2014).
present, it was an impermissible ex parte communication. The record does not
establish that contention, nor do we see any relevance of that contention to this
appeal.
A-1035-19T2
6
Following that decision, Ashley advised defendant that he had two
options: (1) seek further review on leave to appeal to the Supreme Court; or (2)
hire another attorney who would be available for the trial in June 2014. Ashley
recommended that defendant proceed with the second option. Defendant
followed Ashley's recommendation and retained Michael Robbins, Esq.
Robbins then represented defendant at trial, which commenced on June 25,
2014.
II.
As already noted, on this appeal defendant raises one argument, which he
articulates as follows:
DEFENDANT WAS DENIED HIS
CONSTITUTIONAL RIGHT TO THE EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL AS A
RESULT OF COUNSEL'S FAILURE TO RAISE ON
APPEAL THE ISSUE OF DENIAL OF
DEFENDANT'S RIGHT TO COUNSEL OF CHOICE.
We review this issue de novo because there was no PCR evidentiary
hearing. State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). As a
reviewing court, we "can conduct a de novo review of both the factual findings
and legal conclusions of the PCR court . . . [because] [a]ssessing [ineffective
assistance of counsel] claims involves matters of fact, but the ultimate
determination is one of law[.]" State v. Harris, 181 N.J. 391, 419 (2004).
A-1035-19T2
7
To establish a claim of ineffective assistance of counsel, defendant must
satisfy a two-part test: (1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment[,]" and (2) "the deficient performance prejudiced the defense."
Strickland v. Washington, 466 U.S. 668, 687 (1984); accord State v. Fritz, 105
N.J. 42, 58 (1987) (adopting the Strickland test). "The Strickland/Fritz test
governs claims that appellate counsel rendered ineffective assistance." Harris,
181 N.J. at 518.
A defendant claiming incompetent representation must demonstrate that
"counsel's representation fell below an objective standard of reasonableness[,]"
as measured by prevailing professional norms, considering all the surrounding
circumstances. Strickland, 466 U.S. at 688. Moreover, there is a strong
presumption that an attorney's conduct falls within the range of reasonable
professional assistance. State v. Allegro, 193 N.J. 352, 366 (2008).
Accordingly, defendant must overcome that presumption and demonstrate that
counsel's strategy was not reasonable. Strickland, 466 U.S. at 690.
On direct appeal, defendant could not have asked this court to review the
choice-of-counsel issue because we had already rejected that contention. In
2014, we granted leave to appeal, reviewed the merits, and summarily affirmed
A-1035-19T2
8
the denial of Ashley's motion to substitute in as counsel for defendant.
Defendant did not seek further review of that decision by the Supreme Court.
See R. 2:2-5 (requiring a motion for leave to seek review by the Supreme Court).
Accordingly, our earlier decision was the law of the case and binding on this
court on direct appeal. See State v. Myers, 239 N.J. Super. 158, 164 (App. Div.
1990); State v. Stewart, 196 N.J. Super. 138, 143 (App. Div. 1984); see also
Lombardi v. Masso, 207 N.J. 517, 539 (2011) (explaining the parameters of the
law of the case doctrine).
Defendant argues that the law of the case doctrine is discretionary , and
therefore his prior counsel should have raised the choice-of-counsel argument
on direct appeal and argued that this court was not bound by the May 2014
ruling. Defendant also argues that prior counsel should have preserved the issue
for appeal to the Supreme Court. We reject these contentions.
While the law of the case doctrine is a discretionary rule, that discretion
is limited. Lombardi, 207 N.J. at 538-39; State v. Reldan, 100 N.J. 187, 205-07
(1985). The doctrine is based on the policy that once an issue has been litigated
and decided, re-litigation should be avoided "in the absence of some new or
overriding circumstance." Reldan, 100 N.J. at 204 (quoting State v. Hoffler,
389 A.2d 1257, 1262 (Conn. 1978)). Overriding circumstances include new
A-1035-19T2
9
material evidence, new controlling authority, or a compelling showing that the
prior decision was clearly erroneous. L.T. v. F.M., 438 N.J. Super. 76, 88 (App.
Div. 2014); see also Sisler v. Gannett Co., 222 N.J. Super. 153, 160 (App. Div.
1987) (explaining that when the law of the case doctrine "is applied to a prior
appellate decision in the same case, the doctrine is more stringent.") .
Defendant has not contended that there was any new evidence, new
controlling authority, or some other overriding circumstance. Instead, defendan t
seeks to argue that the 2014 affirmance was erroneous. Significantly, he has
made no showing that the prior ruling was clearly erroneous. See State v. Kates,
216 N.J. 393, 396 (2014) (citations omitted) (explaining that "a defendant's right
to counsel of choice 'is not absolute'" and that the right can be balanced against
other considerations, including the demands of the trial court's calendar).
The trial judge carefully considered defendant's request to retain his third
counsel of choice. The judge noted that the case was in its fourth year, the court
had previously granted defendant's first counsel's request to be relieved, the
court had delayed an earlier trial date to allow defendant's second counsel to get
up to speed, and the court had previously established a firm new trial date but
Ashley was not available on that date. Those considerations were all legitimate
and were not arbitrary. Consequently, on appellate review, two of our
A-1035-19T2
10
colleagues concluded that the trial court had not erred. That prior ruling is not
clearly erroneous and was binding on this court both on direct appeal and on this
appeal. See Myers, 239 N.J. Super. at 164; Stewart, 196 N.J. Super. at 143.
Moreover, because our precedent is clear that we normally do not allow
reconsideration of an issue that has been decided on an interlocutory appeal,
defendant's prior appellate counsel did not fall below an objectively reasonable
standard in deciding not to tilt against that windmill on direct appeal. See
Strickland, 466 U.S. at 688 (counsel's representation must fall below "an
objective standard of reasonableness").
Affirmed.
A-1035-19T2
11