STATE OF NEW JERSEY v. RICHARD SHEPHERD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5481-03T45481-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD SHEPHERD,

Defendant-Appellant.

_________________________________

 

Submitted November 10, 2005 - Decided

Before Judges Wefing and Wecker.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

No. 96-4-520.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, of counsel and on

the brief).

Bruce J. Kaplan, Middlesex County

Prosecutor, attorney for respondent

(Simon Louis Rosenbach, Assistant

Prosecutor, of counsel and on the brief).

Appellant submitted a pro se supplemental brief.

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

A jury found defendant guilty of one count of sexual assault, a crime of the second degree, N.J.S.A. 2C:14-2b, and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4a. At sentencing, the trial court merged the latter conviction into the former and sentenced defendant to a term of eight years, to be served at the Adult Diagnostic and Treatment Center at Avenel. Defendant appealed, and this court affirmed his conviction and sentence in an unpublished opinion. State v. Shepherd, No. A-5311-97 (App. Div. May 12, 1999). The Supreme Court denied certification. State v. Shepherd, 161 N.J. 335 (1999). Thereafter, defendant, acting pro se, filed a PCR petition, alleging he had been denied the effective assistance of counsel. Counsel was assigned to represent defendant in connection with his request for PCR. The trial court denied the petition after hearing oral argument; it determined that an evidentiary hearing was not warranted. On appeal, defendant makes the following contentions.

POINT I THERE ARE NO ISSUES WHICH ARE PRECLUDED FROM BEING RAISED IN A POST-CONVICTION RELIEF HEARING.

POINT II THE PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN THAT TRIAL COUNSEL FAILED TO PROPERLY PREPARE FOR TRIAL, INVESTIGATE OR CALL AND/OR PROPERLY QUESTION IMPORTANT WITNESSES.

POINT III THE ACCUMULATION OF ERRORS DEMAND THAT THE PETITIONER BE RETRIED.

POINT IV THE EIGHT YEAR SENTENCE IMPOSED BY THE COURT IS EXCESSIVE.

POINT V THE EIGHT YEAR SENTENCE IMPOSED BY THE COURT IS UNCONSTITUTIONAL, UNDER THE RECENT BLAKELY DECISION OF THE U.S. SUPREME COURT, AS SAID SENTENCE VIOLATES PETITIONER'S RIGHT TO A TRIAL BY JURY AND TO DUE PROCESS OF LAW.

Defendant has filed a supplemental brief pro se in which he asserts the following contention:

POINT I THE PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN THAT TRIAL COUNSEL FAILED TO PROPERLY PREPARE FOR TRIAL, INVESTIGATE OR CALL AND/OR PROPERLY QUESTION IMPORTANT WITNESSES. (THESE FOLLOWING TRIAL COUNSEL ERRORS STATED HEREIN ARE IN ADDITION TO THE TRIAL COUNSEL ERRORS STATED IN THE BRIEF PREPARED BY PETITIONER'S COUNSEL)

Defendant, then fifty-three years old, was employed as the superintendent of an apartment complex in Highland Park, New Jersey. He resided in one of the apartments within the complex. The victim, L.D., then five years old, lived with her family in the apartment below defendant's. Defendant's improper conduct came to light when L.D. told her aunt that she had touched defendant's penis. L.D.'s family went to the police, and defendant was arrested. He gave a voluntary statement to the authorities in which he recounted various incidents between himself and L.D. that he said had been intended for her educational benefit. A search of defendant's apartment turned up a large quantity of pornographic materials, including pictures of nude children. Defendant took the stand at his trial and testified to four incidents between himself and L.D., all of which he said were inadvertent. According to defendant, he initially told the police that his action had been intended for the child's educational benefit because he was afraid of the police. A selection of the photographs found in his apartment was admitted at trial.

A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984). New Jersey has adopted the standards set out in Strickland.

[A] defendant whose counsel performed below a level of reasonable competence must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

[State v. Fritz, 105 N.J. 42, 60-61 (1987) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).]

Thus to establish a prima facie claim of ineffective assistance of counsel, defendant must meet both prongs of the Strickland/Fritz test. First, he must show that the actions of his trial counsel were deficient in performance and not objectively reasonable. Second, defendant must show that this deficient performance materially affected the outcome of his trial. In determining whether defendant has met the first prong of the Strickland/Fritz test, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations. State v. Buonadonna, 122 N.J. 22, 38 (1991).

We have reviewed the alleged deficiencies in trial preparation, investigation and questioning to which defendant has pointed. We are satisfied that none can satisfy the two-prong Strickland/Fritz test. We do not consider that further discussion in a written opinion is warranted because it would have no precedential value. R. 2:11-3(e)(2).

We also reject defendant's final two points, in which he challenges his eight-year sentence. His claim that the sentence is excessive is barred, defendant having unsuccessfully raised the same challenge on his direct appeal. R. 3:22-5. We note, moreover, that according to defendant's pro se supplemental brief, he is no longer confined. Thus, any challenge to his sentence is now moot.

The order under review is affirmed.

 

(continued)

(continued)

6

A-5481-03T4

RECORD IMPOUNDED

December 1, 2005