STATE OF NEW JERSEY v. DAVID QUINTYNE

NOT FOR PUBLICATION WITHOUT THE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.

DAVID QUINTYNE, a/k/a

HERMAN QUINTYNE, a/k/a

DAVID BERTRAM QUINTYNE,

Defendant-Appellant.

______________________________

July 7, 2014

Submitted May 13, 2014 Decided

Before Judges Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-12-2384.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant David Quintyne appeals from an order entered December 6, 2012, denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

A jury convicted defendant of three counts of first-degree aggravated sexual assault during a kidnapping, a burglary, and while armed with a deadly weapon, N.J.S.A. 2C:14-2(a)(3), and 2(a)(4); first-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree armed burglary, N.J.S.A. 2C:18-2; second-degree sexual assault by use of physical force, N.J.S.A. 2C:14-2(c)(1); and various related third- and fourth-degree crimes. The convictions arose out of defendant's restraint and multiple sexual assaults of his ex-fiancée on March 4, 2003. The jury acquitted defendant of an alleged sexual assault on the previous day.

On July 15, 2005, the court sentenced defendant to an aggregate twenty-year term, with an eighty-five percent parole bar. We affirmed the conviction, but remanded for resentencing. State v. Quintyne, No. A-1402-05 (App. Div. Nov. 30, 2007), certif. denied, 195 N.J. 521 (2008). The trial court resentenced defendant to an aggregate eighteen-year term on March 24, 2009.

Defendant filed his pro se petition on August 9, 2011, more than six years after his initial judgment of conviction. The sole grounds for relief stated therein were:

Excessive Sentencing.

Victim and Defendant was [sic] still on friendly terms and was [sic] engaged and had on many occasion [sic] had consensual sexual relations.

On Count III Defendant was found not guilty because all sexual encounters was [sic] consensual. Therefore all other charges of Sexual or Agg. Assault should have Been the same. 'Victim' lied about the relationship.

It appears that defendant filed a supplemental certification in support of his petition. Defendant's appointed counsel's brief to the PCR court included in the State's appendix quotes statements by defendant that are not included in his pro se petition. However, any supplemental certification is not before us.

Defendant's supplemental brief raised seven points in support of his claim that trial counsel provided ineffective assistance of counsel:

POINT II

PETITIONER IS ENTITLED TO POST CONVICTION RELIEF BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL FAILED TO CONSULT WITH PETITIONER TO REVIEW THE EVIDENCE AND PREPARE DEFENSES.

B. TRIAL COUNSEL MADE NUMEROUS COMMENTS DURING OPENING ARGUMENTS THAT INCITED THE COURT.

C. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ARGUE FOR REVIEW OF MEDICAL AND MENTAL HEALTH RECORDS AND OBTAIN AN EXPERT.

D. TRIAL COUNSEL FAILED TO OBJECT TO NUMEROUS INSTANCES OF POLICE MISCONDUCT.

E. TRIAL COUNSEL FAILED TO REQUEST A MISTRIAL DUE TO JURY MISCONDUCT.

F. TRIAL COUNSEL WAS INEFFECTIVE IN [HER] PRESENTATION OF ARGUMENTS FOR A NEW TRIAL AS [THE] VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND INCONSISTENT.

G. TRIAL COUNSEL FAILED TO ARGUE APPLICABLE MITIGATING FACTORS.

Other points raised included:

POINT I

PETITIONER IS ENTITLED TO POST CONVICTION RELIEF INCLUDING ORAL ARGUMENT AND AN EVIDENTIARY HEARING BASED ON THE TIMELY FILING OF THE VERIFIED PETITION AND THE FOREGOING ARGUMENTS.

POINT III

PETITIONER RESPECTFULLY REQUESTS THIS COURT CONSIDER THE TOTALITY OF THE ERRORS.

POINT IV

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT V

ALL PRO-SE ISSUES RAISED IN PETITIONER'S PRIOR PETITIONS MUST BE CONSIDERED.

POINT VI

PETITIONER'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF RULE 3:22-2 AS THEY ASSERT CONSTITUTIONAL ISSUES A RISING [sic] UNDER THE STATE CONSTITUTION.

The trial court denied the motion in a thorough written opinion. The judge presided over the 2005 trial and drew upon his observations and recollections of counsel's performance. He applied the well-settled two-prong test for evaluating a post-conviction claim of ineffective assistance of counsel. SeeStrickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different).

After concluding the petition was timely filed, the judge held: (1) trial counsel was effective and prepared in her representation of defendant in pre-trial and trial proceedings; (2) trial counsel did not incite the court or set a negative tone during the trial; (3) trial counsel effectively applied to the court to obtain the victim's medical and mental health records, which the trial court denied; (4) trial counsel's choice not to utilize certain witnesses, and not to call an expert witness, amounted to trial strategy, and defendant failed to present competent evidence regarding the testimony that omitted witnesses would have offered and the impact of such testimony; (5) trial counsel's failure to object to alleged prosecutorial misconduct was also strategic, and the issue of prosecutorial misconduct was raised without success on direct appeal; (6) trial counsel did not err in failing to request a mistrial due to an alleged sleeping juror or disruptions by observers in the courtroom, because such requests would have been denied; and (7) trial counsel zealously advocated for defendant at sentencing. The judge also found that defendant failed to establish that appellate counsel was ineffective, or that he was entitled to an evidentiary hearing on any of his claims.

On appeal, defendant narrows his argument, contending in his sole point on appeal:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR NOT ADEQUATELY PREPARING FOR TRIAL.

In support of his argument, defendant relies on his counsel's assertions, made in oral argument before the PCR court, that trial counsel failed to prepare for trial, and in particular, failed to prepare defendant before he testified in his own defense. PCR counsel asserted that trial counsel's "trial file" was less than an inch thick, and that by itself established a prima facie case of ineffective assistance warranting a hearing. PCR counsel contended that defendant was offered a plea agreement with a recommendation of a 364-day sentence. PCR counsel argued that trial counsel must have anticipated defendant's acceptance, and therefore did not prepare for trial. When defendant insisted upon a trial, he was disadvantaged by his trial counsel's lack of preparation.

We reject defendant's arguments and affirm substantially for the reasons set forth in the PCR judge's thorough written opinion. We add the following brief comments.

We recognize that adequate preparation is the hallmark of effective counsel. "[C]ounsel has a duty to make 'reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.' A failure to do so will render the lawyer's performance deficient." State v. Savage, 120 N.J. 594, 618 (1990) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). See also Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006) (observing that where counsel failed to conduct any pretrial investigation, counsel's trial strategy was "uninformed" and not entitled to a presumption of deference).

However, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super.154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). A court need not hold a hearing if "the defendant's allegations are too vague, conclusory, or speculative to warrant" one. State v. Marshall, 148 N.J.89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). See alsoR.3:22-10(e)(2). In this case, defendant has failed to provide any competent evidence in the record on appeal to support his claim that his trial counsel failed to prepare adequately. Defendant also has not shown how further preparation would have affected the defense and in particular, defendant's testimony. Indeed, defendant has failed to provide the court with the supplemental certification he apparently filed, or the "trial file" that allegedly reflects, on its face, inadequate trial preparation. See R. 2:6-1(a)(1)(I) (stating that an appellant shall include in an appendix "such other parts of the record . . . as are essential to the proper consideration of the issues"); Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002).

Although we affirm the trial court's denial of the petition on the merits, we note also that the petition was not timely filed. A petition must be filed within five years of the entry of "the judgment of conviction that is being challenged." R. 3:22-12(a)(1). The five-year bar can be relaxed only upon proof of "excusable neglect" and a demonstration that "enforcement of the time bar would result in a fundamental injustice." Ibid. Although the trial court entered a second judgment of conviction in 2009 upon remand for resentencing, defendant seeks PCR from the conviction embodied in the judgment entered in July 2005. The five-year period consequently runs from the initial judgment of conviction, "even if further trial proceedings relating to the sentence are conducted during the interim period." State v. Dugan, 289 N.J. Super. 15, 20 (App. Div.), certif. denied, 145 N.J. 373 (1996). As the record does not disclose a showing of excusable neglect or fundamental injustice, it appears defendant's petition, filed in August 2011, was untimely.

Affirmed.