STATE OF NEW JERSEY VS. M.R.P.(10-09-1016, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-2430-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.R.P.,

Defendant-Appellant.

Submitted May 10, 2017 – Decided July 18, 2017

Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Indictment No. 10-09-1016.

Joseph E. Krakora, Public Defender, attorney
for appellant (John V. Molitor, Designated
Counsel, on the brief).

Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Erin Smith Wisloff,
Supervising Assistant Prosecutor, on the
brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant M.R.P. appeals the November 12, 2015 order denying

his petition for post-conviction relief (PCR). We affirm for the

reasons stated by Judge Stuart A. Minkowitz in his detailed written

decision. We add some brief comments.

We denied defendant's direct appeal in State v. M.R.P., No.

A-2982-11 (App. Div. Sept. 5, 2014). His petition for

certification to the Supreme Court was also denied. State v.

M.R.P., 220 N.J. 575 (2015). Defendant was convicted by a jury

of multiple counts of first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A.

2C:14-2(b); second-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a); and third-degree aggravated criminal sexual

contact, N.J.S.A. 2C:14-3(a). The two victims were his nieces,

B.P. and A.P. Defendant was sentenced on December 16, 2011, to

an aggregate term of forty years imprisonment, subject to the No

Early Release Act's eighty-five percent parole ineligibility.

N.J.S.A. 2C:43-7.2.

Defendant's sexual abuse of B.P. began in 1998, when she was

eight years old, and was sent by family from El Salvador to live

here. A.P., her younger sister, was abused when she visited B.P.

in defendant's home years later. The sexual assaults on B.P.

continued until her adolescence, when A.P. disclosed defendant's

conduct to the family. They came to this country to remove B.P.

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from defendant's care. The criminal charges were filed at that

time.

M.R.P. raised nineteen separate arguments for post-conviction

relief in his petitions. On appeal, his counseled brief raises

two:

POINT I
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.

POINT II
THE TRIAL COURT ERRED IN REFUSING TO TAKE INTO
ACCOUNT THE PROPOSED TESTIMONY OF R.P. IN
MAKING ITS DECISION TO DENY DEFENDANT AN
EVIDENTIARY HEARING.

Defendant's uncounseled brief raises eight points of error

as follows:

POINT I
THE COURT VIOLATED THE APPELLANT'S RIGHTS WHEN
IT DENIED HIM THE OPPORTUNITY TO PRESENT
EVIDENCE TO SUPPORT HIS POST-CONVICTION RELIEF
PETITION.

POINT II
THE COURT ERRED WHEN IT RULED THAT THE MEDICAL
EVIDENCE WAS IRRELEVANT DESPITE ITS CLEAR
EXCULPATORY VALUE AND DESPITE LONG-
ESTABLISHED LEGAL PRECEDEN[TS].

POINT III
THE COURT ERRED AND CONTRADICTED ITSELF WHEN
IT RULED THAT THE DEFENDANT HAD RECEIVED
ADEQUATE LEGAL ASSISTANCE WHILE AT THE SAME

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 TIME RULING HIS ARGUMENTS INVALID BECAUSE THEY
WERE NOT RAISED EARLIER.

POINT IV
THE COURT ERRED WHEN IT REFUSED TO ADDRESS THE
LEGALITY OF THE SEARCH OF THE APPELLANT'S
RESIDENCE.

POINT V
THE COURT SHOWED GROSS ABUSE OF DISCRETION AND
DELIBERATE INDIFFERENCE WHEN IT FAILED TO
EXAMINE THE POSSIBILITY OF PROSECUTORIAL
VINDICTIVENESS.

POINT VI
THE COURT DOUBLE-COUNTED ELEMENTS OF THE CRIME
TO SUPPORT THE APPLICATION OF AGGRAVATING
FACTOR 1 DURING SENTENCING.

POINT VII
THE COURT INCORRECTLY DISMISSED CRITICAL NEWLY
UNCOVERED EVIDENCE.

POINT VIII
THE IMPOSITION BY THE COURT OF A SPECIAL
SENTENCE OF PAROLE SUPERVISION FOR LIFE
VIOLATED THE DOUBLE JEOPARDY CLAUSES OF THE
UNITED STATES AND NEW JERSEY CONSTITUTIONS
RENDERING THE SENTENCE ILLEGAL.

We first address the points raised in the counseled brief.

In point one, defendant attacks the court's failure to fully

explore the claim that the eighteen-year plea offer was not

conveyed to him. However, the judge, although he mentioned the

possibility of finding additional corroboration of the information

presented to him at the time of the PCR argument, considered the

information he had sufficient to rule. That information was

dispositive —— a letter defendant wrote to the court prior to

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trial about the plea bargaining process. In that June 26, 2009

letter, written two years before the trial, defendant complained

to the judge that the prosecutor had changed the plea offer from

fifteen to eighteen years "for the sole reason that, as [the

prosecutor] put it, I 'should not be rewarded' for not accepting

before." The claim regarding ineffective assistance of counsel

based on the alleged failure to communicate the eighteen-year plea

offer was completely refuted by the letter defendant wrote to the

judge complaining about it. The judge's denial of relief on that

basis is unassailable.

The second point in the counselled brief goes to the trial

court's alleged failure to take into account the information

defendant characterized as new evidence. Defendant's brother

wrote a letter in which he said B.P. and A.P. acknowledged to him

that their accusations against defendant were false, and in which

he ascribed improper motives to the allegedly false accusations.

The letter was undated and uncertified. As the judge noted, the

letter also said that defendant's brother conveyed this

information to defendant's attorney in 2008 or 2009, years before

the trial. The contents of the letter cannot be considered newly

discovered evidence. Defendant's brother was not called to testify

at trial.

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 Furthermore, A.P. and B.P. were both extensively cross-

examined, including questions about the factual allegations made

in the letter. In other words, although the letter was not

identified as the source, the same issues the letter raised were

covered in the trial. Hence, we are satisfied that judge correctly

declined to find that the undated and uncertified letter had any

evidentiary value.

Most of the points defendant raises in the uncounseled brief

are barred by Rule 3:22-4. Subsection (a) of the rule states that

a ground for relief not previously raised is barred from PCR

consideration if it could have been addressed on direct appeal.

The rule allows for certain exceptions —— none of which applied

here. Therefore, the judge properly refused to consider issues

that fell within that category.

In order to establish ineffective assistance of counsel as

the basis for post-conviction relief, a defendant must meet two

requirements –— that the objected-to representation fell outside

the range of competent professional assistance, and ultimate

prejudice to the outcome. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). In

reviewing such claims, there is a strong presumption that counsel's

performance fell within the range of reasonable representation.

State v. Hess, 207 N.J. 123, 147 (2011). Objectively reasonable,

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although ultimately unsuccessful, decisions regarding strategy

made by counsel fall within the range of adequate representation.

State v. Arthur, 184 N.J. 307, 319 (2005).

We address only one point in defendant's uncounseled brief

—— the allegation that trial counsel was ineffective because he

did not obtain B.P.'s records. Judge Minkowitz concluded that

even if B.P.'s medical records did not include complaints about,

or physical manifestations of, sexual abuse, they would likely not

have affected the outcome. The strength of B.P. and A.P.'s

testimony was bolstered by DNA evidence that established

intercourse between B.P. and defendant. There is no reason in

this case to conclude that had those records been made available,

that they would have been anything other than neutral.

In sum, defendant fell woefully short of even approximating

a prima facie case of ineffective assistance of counsel such as

would have warranted a plenary hearing. Viewing the facts in the

light most favorable to him, it is nonetheless clear none of his

claims require additional proceedings. See State v. Jones, 219

N.J. 298, 311 (2014); State v. Marshall, 148 N.J. 89, 158 (1997).

Affirmed.

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