STATE OF NEW JERSEY v. C.W.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

C.W.R.,

Defendant-Appellant.

______________________________________________

August 17, 2015

Before Judges Espinosa and St. John.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-01-0108.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant C.W.R.1 appeals from a Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant was convicted in 2008 for molesting the juvenile daughter of his girlfriend on dozens of occasions over the course of several years. On appeal, defendant raises the following issues for our consideration

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSEL'S INEFFECTIVENESS.

A. Trial Counsel Failed to Explore a Diminished Capacity Defense.

B. Trial and Appellate Counsel Failed to Challenge the Indictment for Not Being More Specific As To The Dates of the Alleged Sexual Abuse.

Upon our review in light of the record and governing law, we affirm.

I.

We discern the following facts and procedural history from the record. G.W., the victim, was born in 1991. Defendant was the boyfriend of G.W.'s mother at all relevant times. G.W. lived with her mother, brother and defendant, whom she often referred to as her "stepfather" and "Dad." Defendant began molesting G.W. when she was approximately eight or nine years old. The first incident of abuse occurred when G.W.'s mother was in the hospital for surgery. Defendant took G.W. into the room he shared with G.W.'s mother and forced G.W. to put her mouth around his penis. The incident ended when G.W.'s mother called home.

Defendant subsequently had G.W. perform fellatio numerous times and on occasion also placed his penis between her labia, although they did not have intercourse. The abuse occurred with sufficient frequency that G.W. had difficulty recalling all of the incidents. Although there was a brief break in the abuse while the family was living with G.W.'s grandparents and in a shelter, defendant's sexual abuse continued over the course of several years. The final act of abuse occurred when G.W., then sixteen, asked defendant if she could go to a friend's house. He said only if she gave him "what he wanted," referring to oral sex. She said "no," and went into her bedroom and shut the door. Defendant proceeded to knock on her door and "beg" her to give him "what he wanted." G.W. ultimately relented, and defendant took her into his room and put his penis in her mouth.

G.W. related approximately thirty-five acts of sexual abuse over the years. She did not tell anyone for fear her family would be split apart if she did, until, when she was sixteen, she told a friend at school. Subsequently, G.W. spoke to a guidance counselor, a Division of Youth and Family Services (DYFS) representative and police.

In a statement to police, defendant admitted to having G.W. gratify him as she described for an average of twice a month for approximately five years after the initial incident. He also stated he began abusing G.W. when she was about nine years old.

A Cumberland County grand jury indicted defendant for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts two, four, seven and nine); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c) (counts three and five); and second-degree sexual assault, N.J.S.A. 2C:14-2(c) (counts six and eight).

Defendant's indictment did not list specific dates for the alleged offenses. Rather, it provided broad time periods, for example: "divers[e] dates between 1997 and the 17th day of May 2004" for counts one and two; "on divers[e] dates between the 18th day of May 2004 and August of 2006" for counts three and four; and "on divers[e] dates between August 2006 to the 17th day of May 2007" for counts five through nine.

At the suppression hearing concerning the admissibility of defendant's statement to police, defendant testified he was bipolar and used crack cocaine. He further related he took the medications Depakote and Zoloft to treat his bipolar condition. Ultimately, the motion judge held the statement was admissible. Pretrial, the court dismissed counts three and four of the indictment.

At trial, G.W. testified to the abusive acts described above. During her testimony, G.W. acknowledged that she had twice recanted the accusations she made to the police, but maintained that her trial testimony was truthful. G.W.'s mother testified on defendant's behalf. She related his problems with smoking crack cocaine "every day," as well as being bipolar. Defendant's father also testified defendant was bipolar, had a drug problem and had been intermittently homeless.

The jury found defendant guilty of all the remaining charges. The court denied defendant's motion for a new trial and sentenced him to twenty-six years' incarceration with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed his convictions on several grounds not relevant here. Although we remanded for resentencing, defendant's convictions were affirmed on appeal and certification was denied. State v. C.W.R., No. A-0621-09 (App. Div. March 9, 2011), certif. denied, 207 N.J. 188 (2011).

Thereafter, defendant filed a petition for PCR, challenging his convictions based upon ineffective assistance of trial and appellate counsel on several grounds. Specifically, he argued trial counsel was deficient in: (1) not challenging the indictment as overly vague; (2) failing to have him evaluated for a potential diminished capacity defense; and (3) not objecting to his being shackled in front of the jury, thereby denying him the right to a fair trial. Defendant contended appellate counsel's failure to raise the same issues on appeal similarly constituted ineffective assistance of counsel. Lastly, he argued sentencing counsel was not familiar with the Yarbough2 factors.

In a comprehensive written opinion, the PCR court denied the petition on all grounds. As to those issues relevant on appeal, the PCR court concluded: (1) there were no grounds for overturning the indictment, even if trial or appellate counsel had so moved, in light of the additional leeway afforded the State in charging sexual crimes against minors; and (2) defendant presented insufficient evidence showing he had a diminished capacity and, even if he had, failed to prove it would have negated any of the elements of the charged crimes.

On appeal, defendant only challenges the PCR court's holding as to the failure to object to the indictment and investigate a potential diminished capacity defense.

II.

Our review of an order denying PCR involves consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer "to a PCR court's factual findings based on its review of live witness testimony," and uphold findings that are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). However, if the PCR court has not held "an evidentiary hearing, we may exercise de novo review over the factual inferences the [PCR] court has drawn from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). We accord no deference to the PCR court's legal conclusions. Nash, supra, 212 N.J. at 540-41.

PCR "'is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J.583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). Rule3:22-2 provides that any person convicted of a crime may file a petition for PCR on the grounds of a "substantial denial in the conviction proceedings" of his or her constitutional rights. Ibid. "'Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding,'" due to their reliance on evidence lying outside the trial record. State v. Hess, 207 N.J.123, 145 (2011) (quoting Preciose, supra, 129 N.J.at 460).

It is well-established that in order

to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); [Preciose, supra], 129 N.J.[at] 459 [] (reciting preponderance of the evidence standard of proof); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Stricklandstandard).

[State v. L.A., 433 N.J. Super.1, 13 (App. Div. 2013).]

However, a defendant is not entitled to an evidentiary hearing on a PCR petition unless he presents legally competent evidence to support both prongs of the Stricklandtest. O'Donnell, supra, 435 N.J. Super. at 370. Mere "bald assertions" are insufficient to create a prima facie case. State v. Cummings, 321 N.J. Super.154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

To establish ineffective assistance of counsel under the first prong, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S.at 688, 104 S. Ct.at 2064, 80 L. Ed. 2d at 693. This requires a showing counsel was so deficient "that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, ___ U.S.___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Thus, "[the] test requires the defendant to identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance.'" State v. Jack, 144 N.J.240, 249 (1996) (quoting Strickland, supra, 466 U.S.at 689, 104 S. Ct.at 2065, 80 L. Ed.2d at 694). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." Nash, supra, 212 N.J.at 543.

To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S.at 694, 104 S. Ct.at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

Here, the PCR court properly denied defendant's petition. Put simply, defendant failed to make an adequate showing and therefore failed to establish prima facie evidence to satisfy either prong.

Defendant first erroneously argues he established that trial counsel was ineffective in not investigating a potential diminished capacity defense. He points to his own testimony at the suppression hearing as well as the trial testimony of G.W.'s mother and his own father that he suffered from bipolar disorder. However, in Cummings, we held

[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.

[Cummings, supra, 321 N.J. Super. at 170 (emphasis added).]

Defendant did not provide certifications or any other sufficient evidentiary support along with his PCR application establishing he was bipolar and, therefore, that his attorney erred in not exploring a diminished capacity defense. Nor did he present any evidence trial counsel actually failed to undertake an investigation of such a line of defense. Under Cummings, the unsubstantiated testimony from his original trial proceedings is insufficient to establish a prima facie claim of ineffective assistance of counsel through inadequate investigation. Ibid.

Similarly, as to the temporal details of the indictment, defendant's petition contained nothing suggesting he received insufficient notice to mount a defense to the charges. "It is axiomatic that an indictment 'must charge the defendant with the commission of a crime in reasonably understandable language setting forth all . . . critical facts and . . . essential elements' of the alleged offenses so as to enable the defendant to prepare a defense." State v. Salter, 425 N.J. Super. 504, 514 (2012) (quoting State v. Wein, 80 N.J. 491, 497 (1979)). However, when an indictment charges "a sexual crime against 'a young victim[,] [it] will not have to be as exacting when specifying dates of abuse.'" Ibid. (quoting State v. C.H., 264 N.J. Super. 112, 125 (App. Div.), certif. denied, 134 N.J. 479 (1993)); see also Pressler & Verniero, Current N.J. Court Rules, comment 1.2.3 on R. 3:7-3 (2015) ("while ordinarily an indictment must state the date of the alleged criminal act, a charge of crime involving a child need not, provided the indictment otherwise gives [the] defendant sufficient notice of the crimes to permit him to prepare his defense.").

In evaluating whether a defendant has received adequate notice in cases alleging sexual abuse against minor victims, the Supreme Court has instructed our trial courts to consider

the length of the alleged period of time in relation to the number of individual criminal acts alleged; the passage of time between the alleged period for the crime and defendant's arrest; the duration between the date of the indictment and the alleged offense; and the ability of the victim or complaining witness to particularize the date and time of the alleged transaction or offense.

[In re K.A.W., 104 N.J. 112, 122 (1986) (citation and internal quotation marks omitted).]

Furthermore, "the central issue is whether, in light of the facts in the particular case (e.g. the age of the victim, the number of offenses and the time period involved), the defendant had received 'fair notice' of the charges against him." State v. Hass, 218 N.J. Super. 133, 138 (App. Div. 1987). In the present case, defendant had fair notice of the allegations.

In light of the broad leeway given to the State in prosecuting sexual offenses against minors, the PCR court did not err in finding defendant failed to satisfy either Strickland prong. We therefore conclude the PCR court properly denied defendant's petition without an evidentiary hearing.

Affirmed.

1 We use initials to protect the privacy of the victim.

2 State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1013, 106 S. Ct. 1193, 89 L. Ed. 308 (1986).