STATE OF NEW JERSEY v. ROBERT COAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT COAR,

Defendant-Appellant.

_________________________________

February 13, 2014

Submitted October 2, 2013 Decided

Before Judges Fuentes and Haas.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

95-11-01293.

Joseph E. Krakora, Public Defender, attorney

for appellant (William Welaj, Designated

Counsel, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor,

Attorney for respondent (Keith E. Hoffman,

Senior Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Robert Coar appeals from the order of the trial court denying his second petition seeking post-conviction relief (PCR). We affirm. We gather the following facts from the record developed before the trial court.

Commencing on April 13, 1999, defendant was tried before a jury on four counts of second degree sexual assault, N.J.S.A. 2C:14-2b, and one count of third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Defendant had been represented by three different attorneys before the actual start of the trial. However, at defendant's specific request, the court granted his application to waive his constitutional right to be represented by counsel, opting instead to represent himself at trial.

The jury found defendant guilty of two counts of second degree sexual assault and one count of third degree endangering the welfare of a child. On October 1, 1999, the trial court sentenced defendant to an aggregate term of fourteen years and ordered defendant to comply with the registration requirements of N.J.S.A. 2C:7-1 to -19, commonly known as "Megan's Law." We affirmed defendant's conviction and the sentence imposed by the court in a thirty-three-page unpublished opinion. State v. Coar, Docket No. A-1344-99 (App. Div. November 8, 2000), and the Supreme Court thereafter denied defendant's petition for certification. State v. Coar, 167 N.J. 632 (2001).1

Defendant filed his first PCR petition on August 16, 2004. Consistent with the approach he adopted at the trial, defendant again declined to have counsel appointed to assist him in prosecuting the PCR petition. Defendant alleged fifteen separate grounds in support of this petition, including "ineffective assistance of counsel at critical pre-trial stages" and "ineffective assistance of standby counsel during trial." After reviewing the grounds raised, the PCR judge denied defendant's petition, finding his application was merely "an attempt to rephrase points already argued before the Appellate Division."

Responding to defendant's direct appeal, this court summarily remanded the matter and directed the court to reconsider "defendant's petition for post-conviction relief after the assignment of counsel or obtaining from defendant a waiver of his right to counsel on the first petition." State v. Robert Coar, Docket No. A-0665-07 (App Div. May 12, 2008).

Defendant was thereafter assigned counsel to prosecute the PCR petition and the matter was argued before Judge Donald J. Volkert on April 11, 2011. After considering the arguments of counsel, as well as the evidence proffered by defendant in support of the grounds asserted in the petition, Judge Volkert denied the petition, explaining his reasons in a twenty-eight page memorandum of opinion.

Defendant now appeals raising the following arguments:

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 AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. STATE V. MICHAELS, 136 N.J. 290 (1994) AND ITS RELEVANCE TO THE DEFENDANT'S PRESENT CONTENTION.

C. FACTUAL AND PROCEDURAL BACKGROUND.

D. THE INFORMATION AVAILABLE TO AT LEAST TWO OF THE ATTORNEYS WHO REPRESENTED THE DEFENDANT BY VIRTUE OF THE DISCOVERY THEY POSSESSED CLEARLY ESTABLISHED THE NEED TO REQUEST A MICHAELS HEARING AS WELL AS TO THOROUGHLY DISCUSS THIS ASPECT OF THE CASE WITH THEIR CLIENT, SINCE THE INFORMATION POSSESSED THE CAPACITY TO SEVERELY UNDERMINE, IF NOT NEGATE ENTIRELY, THE STATE'S CASE AGAINST HIM.

1. The failure to record or otherwise memorialize the initial interview(s) with each victim.

2. The absence of spontaneous recollections made by the alleged victims.

3. The inexperience and biased nature of the interviewer.

4. The overt manner in which information implicating the defendant was imparted to the alleged victims before any questioning even took place.

5. The use of leading questions by the interviewer.

E. SINCE THE DEFENDANT CLEARLY ESTABLISHED BOTH PRONGS OF THE STRICKLAND STANDARD, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING.

POINT II

THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.

In his pro se supplemental brief, appellant argues:

POINT I

THE PCR HEARING WAS IMPROPER BECAUSE NO INVESTIGATION HAD BEEN CONDUCTED BY PCR DEFENDANT'S COUNSEL.

POINT II

THE TRIAL COURT ERRED BY DENYING A MICHAEL'S HEARING.

POINT III

THE PCR COURT FAILED TO ADDRESS THE CLAIM OF AN IMPROPER BETHUNE JURY CHARGE.

POINT IV

PETITIONER MAINTAINS ALL CLAIMS MADE IN PREVIOUS BRIEFS FILED WITH THE COURT.

None of the arguments raised by defendant have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We thus affirm substantially for the reasons expressed by Judge Volkert in his memorandum of opinion dated September 23, 2011.

Affirmed.

1 Although documents attesting to this part of the procedural history of the case were not included as part of the record in this appeal, the memoranda of opinion authored by the two judges who reviewed and denied defendant's PCR petitions indicate that after defendant exhausted his right to appellate review at the State level, he filed a petition seeking habeas corpus relief in the United States District Court for New Jersey, which was also denied. The Third Circuit Court of Appeals thereafter affirmed the District Court decision and denied defendant's subsequent application for an en banc review. Finally, the United States Supreme Court denied defendant's petition for a writ of certiorari on December 18, 2003.