STATE OF NEW JERSEY v. PASCAL DUBOIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1007-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PASCAL DUBOIS,

Defendant-Appellant.

__________________________________

March 25, 2011

Submitted January 10, 2011 - Decided

Before Judges Lisa and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-12-1435.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

BruceJ. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Pascal Dubois appeals the trial court's order dated September 5, 2008, which was entered after an evidentiary hearing pursuant to a remand from this court. The order denied a new trial to defendant on his 2003 conviction for first-degree aggravated sexual assault and other offenses. Defendant also appeals from the trial court's reimposition of his sentence. We affirm.

The State's proofs at trial, at which defendant represented himself, established that in August 1999, defendant accosted his former wife at her residence. He put a knife to her throat, taped her mouth shut, punched her in the face, and sexually assaulted her. She then fled, and defendant drove away in her car.

Initially, on direct appeal, we set aside defendant's conviction and ordered a new trial, based upon our determination that the trial court had failed to apprise defendant sufficiently of the hazards of self-representation. State v. Dubois, No. A-419-03 (Jan. 17, 2006). Subsequently, the Supreme Court reversed our decision, holding that defendant had been adequately informed of his rights and that the trial court had not abused its discretion in finding that he had knowingly and intelligently waived his right to counsel. State v. Dubois, 189 N.J. 454, 474-75 (2007). The Court remanded the case to have us address certain unresolved issues that we had not addressed in our first opinion. Id. at 475.

We issued our second opinion in May 2007. State v. Dubois, No. A-419-03 (May 7, 2007). In that opinion, we conclusively rejected as without merit all but two of the open issues raised by defendant. We directed the trial court to conduct an evidentiary hearing as to those two remaining issues: (1) whether defendant was prejudiced by the prison law librarian allegedly monitoring his law library usage prior to trial; and (2) whether defendant was prejudiced by prison officials allegedly intercepting his mail when he was preparing for trial. In addition, we instructed the trial court to resentence defendant, because his sixteen-year sentence exceeded the presumptive term that was in existence prior to State v. Natale, 184 N.J. 458 (2005).

On remand, Judge Deborah Venezia conducted a two-day plenary hearing at which numerous witnesses testified. The witnesses included the law librarian, the prison social worker, the former warden, defendant's former cellmates, and the assistant prosecutor who tried the State's case against defendant.

The record from the remand hearing shows that the law librarian took notes of defendant's activities in the prison law library. This included logging the hours in which defendant was

in the library and jotting down cases that defendant had requested to have copied. Judge Venezia found that the prison officials credibly explained in their testimony why those library activities were being monitored and logged. Among other things, the prison officials noted that inmates who are representing themselves frequently complain to the courts that they are being deprived of adequate access to library materials. Judge Venezia found that explanation to be reasonable.

Judge Venezia also found credible the assistant prosecutor's testimony that he did not consult with prison officials concerning defendant's library access log, and that the State's case at trial therefore was not benefited in any way by the library monitoring in the prison.

Defendant's next allegation related to the alleged withholding of his mail. He contended that he had been attempting through correspondence to obtain copies of civil judgments against his former wife. According to defendant, such civil judgments would have bolstered his theory that his former wife had fabricated the sexual assault allegations against him. Defendant claims that his former wife had fraudulently cashed unemployment checks payable to him, that she had misled his family members to pay her money, and that she was aware that he knew of her misdeeds. He therefore hoped to use the civil judgments against his wife as evidence that she had a financial motivation to make retaliatory false accusations against him. Judge Venezia found this theory to be far-fetched, and inadequate to support defendant's claim of prejudice concerning his mail.

The prison officials acknowledged in their hearing testimony that they did have some problems with defendant's outgoing mail. They noted, however, that he was attempting to send not only legal mail from the prison, but also personal mail to various destinations at the taxpayers' expense. For example, the prison officials recalled one large manila envelope to be mailed from defendant that had twenty to twenty-five separate letters in it. According to their testimony, defendant was told to segregate from that envelope the legal mail, which he was entitled to send free of charge. Judge Venezia was satisfied with the reasonableness of this explanation.

Given these proofs that emerged at the remand hearing and her related credibility findings, Judge Venezia concluded that defendant was not entitled to a new trial because of library surveillance or mail interference. The judge found from the credible evidence "no basis from which to conclude that . . . defendant's rights were violated[.]"

We adopt the judge's determination, substantially for the reasons set forth in her bench opinion of August 21, 2008. The judge's findings as to both the library and mail issues are supported by substantial credible evidence in the record, and it is not our function to second-guess those findings. State v. Locurto, 157 N.J. 463, 471-72 (1999). The last issue concerns defendant's sentence. On the Natale remand, Judge Venezia imposed the same sixteen-year sentence that she had originally imposed. She rightly found that several aggravating factors applied and no mitigating factors pertained.

On appeal, defendant contends that his stand-by counsel at the remand hearing was ineffective because counsel was unable to articulate for the judge any mitigating factors. As Judge Venezia found, there are no legitimate mitigating factors here. We are satisfied that the trial court did not abuse its discretion or misapply the law in reimposing the original sentence on remand. The sentence clearly does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984); see also State v. Bieniek, 200 N.J. 601, 608 (2010).

The remaining arguments presented on this appeal, including those stated in defendant's pro se supplemental brief amplifying his claims of mail interference and the alleged collusion of prison officials with the prosecutor's office, lack sufficient merit to warrant comment. R. 2:11-3(e)(2).

A