STATE OF NEW JERSEY v. M.M.C.-D. (17-04-0241, 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NOT FOR PUBLICATION WITHOUT THE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-1640-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.M.C.-D.,

Defendant-Appellant.
_______________________

Submitted September 14, 2022 – Decided September 20, 2022

Before Judges Haas and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 17-04-0241.

Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).

William A. Daniel, Union County Prosecutor, attorney
for respondent (Joseph M. Nielsen, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant M.M.C.-D.1 appeals from the Law Division's October 16, 2020

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

evidentiary hearing. We affirm.

Defendant pled guilty to two counts of second-degree sexual assault,

N.J.S.A. 2C:14-2(c)(1), in exchange for the State's agreement to dismiss all

other pending charges against him and to recommend an aggregate sentence of

six years in prison. The trial judge sentenced defendant in accordance with this

plea agreement to concurrent six-year terms on each count, subject to the No

Early Release Act, N.J.S.A. 2C:43-7.2, Parole Supervision for Life, and Megan's

Law reporting and registration requirements.

Defendant filed a timely petition for PCR. Defendant argued his attorney

provided him with ineffective assistance because the attorney did not obtain a

copy of a video-recorded statement allegedly given to a detective by J.C., one

of the victims of the assaults. Defendant asserted that J.C. recanted her

allegations of sexual assault during that statement and that his attorney provided

ineffective assistance because she did not share this video with him or obtain a

1
We use initials to identify defendant and the child victims pursuant to Rule
1:38-3(c)(9).
A-1640-20
2
statement from J.C. concerning her recantation. As a result, defendant claimed

he felt pressured into accepting the plea agreement.

After reviewing the documentary record and conducting oral argument,

Judge Robert Kirsch rendered a thorough written opinion denying defendant's

petition. The judge found that J.C. made one video-recorded statement to the

detective in which she described the sexual assaults in great detail. At the

conclusion of the statement, J.C. told the detective she did not want the

investigation to proceed further because she wanted to protect her younger

siblings from learning about their father's actions. J.C. repeated this request

during a short discussion she had with the detective after the recording was

completed. The detective memorialized this conversation in an investigative

report.

In his decision, Judge Kirsch stated that J.C.'s "understandable

explanation for her stated preference that the matter not proceed was to protect

her younger siblings and in no way vitiated the candor of her claims. Critically,

at no point [did] J.C. recant or mute any of the allegations that [defendant]

sexually assaulted her." The judge also found that the State gave defendant's

attorney a copy of the video and the detective's investigative report. Defendant

admitted during his plea colloquy that he reviewed the discovery materials prior

A-1640-20
3
to entering his guilty plea. The judge also found no basis in the record for

defendant's claim his attorney pressured him into accepting the plea agreement.

Under these circumstances, Judge Kirsch concluded that defendant did not

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.

This appeal followed.

On appeal, defendant raises the same arguments he unsuccessfully

presented to the PCR judge. Defendant contends:

POINT ONE

THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR [PCR] RELIEF
WITHOUT GRANTING AN EVIDENTIARY
HEARING AS TESTIMONY IS NEEDED FROM
PRIOR COUNSEL EXPLAINING WHY SHE
PRESSURED HER CLIENT TO PLEAD GUILTY.

POINT TWO

THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR [PCR] RELIEF
WITHOUT GRANTING AN EVIDENTIARY
HEARING AS TESTIMONY IS NEEDED FROM
PRIOR COUNSEL REGARDING HER FAILURE TO
CONTACT J.C. AND OBTAIN AN EXCULPATORY
STATEMENT FROM HER, RECANTING HER
ALLEGATIONS.

A-1640-20
4
 When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he 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 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 if the

defendant has presented a prima facie claim of ineffective assistance, material

issues of disputed facts lie outside the record, and resolution of the issues

necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).

We review a judge's decision to deny a PCR petition without an evidentiary

hearing for abuse of discretion. 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 right to a

A-1640-20
5
fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987).

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 "how specific

errors of counsel undermined the reliability" of the proceeding. United States

v. Cronic, 466 U.S. 648, 659 n.26 (1984).

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

applicable law, we affirm the denial of defendant's PCR petition substantially

for the reasons detailed at length in Judge Kirsch's written opinion. We discern

no abuse of discretion in the judge's consideration of the issues, or in his decision

to deny the petition without an evidentiary hearing. We are satisfied that the

trial attorney's performance was not deficient, and defendant provided nothing

more than bald assertions to the contrary.

Affirmed.

A-1640-20
6