STATE OF NEW JERSEY v. L.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4231-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

L.C.,

Defendant-Appellant.

_________________________________

November 19, 2012

Submitted October 23, 2012 - Decided

Before Judges Reisner and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-01-0077.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant L.C. appeals from the October 29, 2010 order denying his application for post-conviction relief (PCR). We affirm.

I.

L.C. was tried by a jury and convicted of second-degree sexual assault by physical force or coercion, N.J.S.A. 2C:14-2(c)(1); second-degree sexual assault on a related victim aged sixteen to eighteen years old, N.J.S.A. 2C:14-2(c)(3)(a); and second-degree sexual assault while having supervisory or disciplinary power over a victim aged sixteen to eighteen years old, N.J.S.A. 2C:14-2(c)(3)(b). After merger, L.C. was sentenced to seven years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

We affirmed the conviction and sentence, State v. L.C., No. A-1076-07 (App. Div. Mar. 19, 2009), and the Supreme Court denied further review. State v. L.C., 200 N.J. 368 (2009).

In October 2009, L.C. filed a pro se petition for PCR. In October 2010, after the assignment of counsel, the Law Division conducted oral argument (but not an evidentiary hearing) on the application. The PCR court summarily rejected L.C.'s arguments that implicated issues already addressed in the direct appeal. The court then focused on L.C.'s claim that his trial attorney was ineffective by failing to obtain the testing of all DNA samples that were gathered as part of the criminal investigation. The court commented that "[L.C.'s] argument on the DNA is absolutely a wild goose chase." Additionally, the court stated that it was "always reluctant to talk about strategy of trial counsel in a[n] argument prior to actually having a testimonial hearing," but it was clear that trial counsel

argued very effectively . . . that reasonable doubt can arise, not only from the evidence, but from a lack of evidence. And that what was missing in this case was the prosecutor's proof. They could have done this, they didn't do it, reasonable doubt.

Although trial counsel was ultimately unsuccessful in convincing the jury of the existence of reasonable doubt, the court noted that "[defense counsel] gave a very skilled argument to that effect."

The PCR court also addressed L.C.'s pro se arguments, finding them unpersuasive largely because "quite frankly, [the brief was] unintelligible." Consequently, the application was denied. This appeal followed.

II.

A.

On appeal, L.C.'s designated counsel raises the following arguments:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE CONSEQUENCES OF THE PROSECUTOR'S SUMMATION, OF TRIAL COUNSEL'S FAILURE TO ENSURE THAT EVIDENCE WAS TESTED FOR DNA, AND OF THE TRIAL COURT'S FAILURE TO CONDUCT A "FRESH COMPLAINT" HEARING, TO THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM AND TO THE DEFENDANT'S RIGHT TO A FAIR TRIAL, WARRANTED RELAXATION OF RULE 3:22-5 UNDER THE "INJUSTICE" CLAUSE OF RULE 1:1-2.

POINT II: SINCE TESTING OF THE EVIDENCE FOR DNA HAD A "LOGICAL TENDENCY" TO ESTABLISH REASONABLE DOUBT, THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED.

POINT III: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV: DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

L.C.'s pro se supplemental brief is comprised of six points, twenty sub-points, and a jumble of repetitive, miscellaneous, and unintelligible arguments and contentions throughout its fifty-three pages. We decline to reproduce a verbatim statement of the pro se point headings because our efforts to fathom L.C.'s myriad arguments convince us that they all lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).1

The main gist of the remaining arguments on appeal relate to whether L.C. received the effective assistance of counsel. However, he also presents the related claims that his right to a fair trial were trampled by (1) improper statements made by the prosecutor during summation; (2) trial counsel's failure to file a motion to test all of the evidence for DNA; and (3) the trial court's failure to conduct a "fresh complaint" hearing. Finally, L.C. argues that he was entitled to an evidentiary hearing to develop all of his contentions. After our review of the record, we are unpersuaded.

B.

The background of the case, gleaned from the direct appeal, is the following. On May 25, 2005, the sixteen-year-old daughter of L.C.'s wife moved from Costa Rica to the United States to live with her mother and stepfather in New Jersey. On June 4, 2005, while alone with his stepdaughter in the residence, L.C. forcibly removed the girl's clothing, threw her onto a bed, and began to kiss her body and touch her breasts. Although the victim was crying and yelling, L.C. told her to be quiet. He then grabbed her knees, forced her legs apart, and performed cunnilingus causing her pain. L.C. also touched the outside and inside lips of her vagina with his penis. See L.C., supra, slip op. at 3.

On June 5, 2005, after the incident was reported to the girl's mother (who in turn told a friend and then contacted the police), L.C.'s apartment was searched. Investigators seized several items of evidence, including the victim's underwear and pantiliner worn on the day of the attack, which were submitted for forensic testing. One of the tests detected a strong concentration of saliva on the underwear and pantiliner. DNA recovered from the underwear matched the victim's and L.C.'s buccal swab. Also, the DNA test revealed unknown "peaks in the samples" that signified either the possibility of a third contributor or "artifacts or by-products of the test." Id. at 5.

C.

Except for L.C.'s claim that trial counsel was ineffective by not insisting on the testing of every one of the collected DNA samples, all of the arrayed arguments are nothing more than re-runs of those considered in the direct appeal. Accordingly, "[b]ecause post-conviction relief is not a substitute for direct appeal" we conclude that L.C.'s repackaged arguments are barred. State v. Echols, 199 N.J. 344, 357 (2009).

"Post-conviction relief is a safeguard that ensures that a defendant was not unjustly convicted. It is the state analogue to the federal writ of habeas corpus." State v. McQuaid, 147 N.J. 464, 482 (1997) (citing State v. Preciose, 129 N.J. 451, 459 (1992). "PCR provides a defendant with a means to challenge the legality of a sentence or final judgment of conviction which could not have been raised on direct appeal." Ibid. "It is not used to challenge the sufficiency of evidence used to convict a defendant." Id. at 483 (citing State v. Morales, 120 N.J. Super. 197, 200 (App. Div.), certif. denied, 62 N.J. 77 (1972)). "[A] defendant may not use a petition for post-conviction relief as an opportunity to relitigate a claim already decided on the merits." Ibid.; see also R. 3:22-5. L.C. has had his day in court on all but the DNA-related issues of ineffective assistance of counsel. Everything else is an improper effort at re-litigation without the presence of any bona fide claims of constitutional violations or the existence of fundamental injustice. See e.g., State v. Mitchell, 126 N.J. 565, 585-86 (1992).

D.

Our analysis of claims of ineffective assistance of counsel stems from the two-factor test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987) (implementing the Strickland standard for ineffective assistance of counsel claims under Article I, Paragraph 10 of New Jersey Constitution). See State v. McDonald, 211 N.J. 4, 29-30 (2012). Under this paradigm, a defendant must demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, it must be shown that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. With respect to both factors of the Strickland test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his right to relief by a preponderance of the evidence. See State v. Echols, 199 N.J. 344, 357 (2009).

Also,

[t]he right to counsel guarantees defendants the right "to competent counsel." State v. DiFrisco, 174 N.J. 195, 220 (2002). Attorneys are held to a standard of "reasonableness under prevailing professional norms." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Deficient performance is established by proving that "counsel's acts or omissions fell 'outside the wide range of professionally competent assistance' considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). And, the evaluation as to the reasonableness of an attorney's performance must be "'viewed as of the time of counsel's conduct.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694).

[State v. Gaitan, 209 N.J. 339, 350 (2012).]

In the present case, L.C. has not met the requirements for either the performance or prejudice prong set forth in Strickland. L.C. argues that an evidentiary hearing should have been held in order to establish whether neglecting to request full DNA testing on all of the evidence found at the crime scene was a legitimate legal strategy. However, as the PCR court explained in detail, the record overwhelmingly reflects that trial counsel's primary strategy was to convince the jury that a reasonable doubt existed not only from the evidence, but from the lack of evidence produced by the State. This was a reasonable, albeit unsuccessful, approach to a difficult case.

L.C.'s trial counsel argued to the jury that the victim was allegedly unhappy in the household and that as a result, she planted L.C.'s DNA on the underwear in order to get rid of him. Counsel articulated plausible motives for both the victim and her mother to frame L.C. Counsel established that the substance amylase was equally present in vaginal secretions as in saliva, a pivotal part of the State's case, and he intimated throughout the trial that the prosecution's failure to present more substantial evidence presented a reasonable doubt as to L.C.'s guilt. We are in accord with the PCR court's view that appropriate trial strategy animated defense counsel's decision to not request full DNA testing.

Furthermore, even if such decision not to test all of the evidence for DNA was deficient, L.C. has not established that this failure unjustly changed the outcome of the trial. L.C. contends that the victim and her mother were lying about the happening of the assault, not that the wrong person was accused of the crime. Testing all of the other evidence collected from the victim's room would not have undermined the outcome of the trial, because it would not have disproved the DNA evidence already submitted against L.C. The substantial weight of the evidence still suggested that he was guilty. The victim testified that she was sexually assaulted; L.C.'s DNA was found on the girl's underwear; L.C. was accused of performing cunnilingus on the victim against her will; and a substance found in saliva was found on her underwear. Given the amount of evidence presented, we are unable to discern how the potential results of further DNA testing would have been determinative at trial.

Affirmed.

1 Unintelligibility is a legitimate reason to declare defendant's pro se arguments meritless. See e.g., Stanard v. Nygren, 658 F.3d 792, 798 (7th Cir. 2011) (affirming the denial of leave to file a second amended complaint and dismissing a civil action because of the inability to file a pleading that was understandable by opposing counsel and the court). Our review of L.C.'s pro se arguments, albeit hamstrung by the undisciplined flow of words, has been informed by, and complies with, State v. Rue, 175 N.J. 1 (2002), and its progeny.