STATE OF NEW JERSEY v. G.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NOT FOR PUBLICATION WITHOUT THE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.

G.R.,1

Defendant-Appellant.

______________________________

March 28, 2014

Submitted October 22, 2013 Decided

Before Judges Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-02-0285.

Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Michael J. Mennuti, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an October 24, 2011 order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR). We affirm.

I.

A jury found defendant guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. The victim, Theo,2 was the eleven-year-old son of defendant's girlfriend. The assault occurred on August 19, 2002, in the basement of the family home. The State alleged that defendant pulled down Theo's pants, placed his penis on his buttocks, and ejaculated.

Theo testified at the trial in May 2004 and described the assault, which occurred around nightfall. The State also presented Theo's videotaped statement to police the day after the assault.3 Theo's mother, Gail, testified that Theo reported the incident to her around 9:00 p.m., the same night as the assault. The court held, after a pre-trial hearing, that such fresh complaint testimony was admissible. Theo's younger half-brother, Jim the child of Gail and defendant testified that, from the top of the stairs, he saw defendant try to remove Theo's clothing.

The State also presented defendant's signed statement to police, which the court had found admissible, following a pre-trial Miranda4 hearing. In his statement, defendant admitted that he and Theo engaged in some roughhousing, and defendant placed his penis on Theo's buttocks and ejaculated. Defendant testified his statement was accurate to the extent he described the roughhousing, and stated he allowed Theo to pull down his outer shorts several times in play; but his statement was false to the extent it described sexual contact with Theo. Defendant alleged police coerced him to give a false statement with threats of physical harm. The jury returned its verdict after deliberating less than three hours.

On July 23, 2004, Judge Audrey Peyton Blackburn sentenced defendant to concurrent terms of ten years, each with an eighty-five percent parole ineligibility period, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and Megan's Law, N.J.S.A. 2C:7-1 to -23. Judge Blackburn found aggravating factor two, N.J.S.A. 2C:44-1(a)(2) ("[t]he gravity and seriousness of harm inflicted on the victim"), based on the defendant's betrayal of the child's trust, and the child's innocence and vulnerability. She also found factor three, N.J.S.A. 2C:44-1(a)(3) ("risk that the defendant will commit another offense"), and factor nine, N.J.S.A. 2C:44-1(a)(9) ("need for deterring the defendant and others from violating the law"). She found those aggravating factors substantially outweighed the non-existent mitigating factors.

We affirmed defendant's conviction on direct appeal in a 2006 decision. We rejected defendant's sole argument that his Fifth Amendment privilege was violated. Id. at 11.

Defendant's initial pro se PCR, filed July 10, 2007, did not identify any grounds for relief.5 Appointed counsel filed a supplemental brief in May 2011, presenting the following points:6

POINT I

DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF THE LAW, RIGHT TO A FAIR TRIAL, AND OF HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF[-]INCRIMINATION AS HIS STATEMENT WAS NOT VOLUNTARILY OBTAINED.

A. The Defendant was in custody and his custodial interrogation was carried out by law enforcement officers.

B. The defendant's incriminatory statements during his interrogation were involuntary.

C. The Defendant did not waive his Fifth Amendment right against self-incrimination.

D. The Defendant's involuntary statements were used in support of the conviction.

POINT II

DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF THE LAW, RIGHT TO A FAIR TRIAL, AND TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, AS APPELLATE COUNSEL FAILED TO ARGUE THAT THE FRESH COMPLAINT RULE WOULD NOT ALLOW FOR THE VICTIM'S STATEMENT MADE TO [GAIL] TO BE ADMISSIBLE.

POINT III

THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE.

Defendant also prepared a pro se brief in support of his PCR petition. The brief was accompanied by an improper certification that the statements made therein were "true to [the] best of my knowledge and belief." Cf. R. 1:6-6; Stowell v. N.J. State Ass'n of Chiefs of Police, 325 N.J. Super512, 520-21 (App. Div. 1999) (stating that allegations in a complaint that were "'true and correct to the best of my knowledge and belief'" did not comply with the Rule). There is no evidence that the brief was ever filed with the PCR court. As included in the record before us, it bears only a partly intelligible, mirror image of a "received" stamp, which appears to belong to the Office of the Public Defender, with an apparent date sometime in 2008.

In his pro se brief, defendant asserted:

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF FEDERAL AND STATE CONSTITUTIONS.

Defendant claimed his attorney failed to adequately investigate grounds to impeach Theo's allegations.

Here, counsel failed to conduct an investigation which would have revealed that the accuser had made unsubstantiated accusations in the past, and had a history of lying. That evidence alone may have created reasonable doubt in the jurors['] minds. Counsel also failed to cross-examine the accuser about his story in this matter, and his previous accusations.

Moreover, defendant informed counsel that defendant's young son was afraid of the accuser because of inappropriate touching. Counsel never interviewed defendant's son or sought to call him as a witness.

Judge Robert Billmeier denied defendant's petition, addressing the three grounds presented in appointed counsel's brief. Citing Rules 3:22-4 and -5, the judge held that defendant was barred from revisiting the argument that his statement was not voluntary. The argument was raised and addressed on direct appeal.

Judge Billmeier also rejected the claim that appellate counsel was ineffective by failing to challenge the trial court's decision to allow Gail's fresh complaint testimony. The PCR judge found the record was "void of any facts that would suggest Petitioner's appellate counsel would have been successful if he challenged the trial court's ruling."

Finally, Judge Billmeier rejected defendant's argument that his sentence was illegal on the grounds that the sentencing court engaged in impermissible judicial fact-finding. Citing State v. Natale, 184 N.J. 458, 466 (2005), the PCR court concluded that, with the elimination of presumptive terms, a court need not rely on a jury's fact-finding in order to apply aggravating factors and impose a sentence within the statutory range.

On appeal, defendant presents the following points for our consideration:

POINT I: THE DEFENDANT ESTABLISHED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND, THEREFORE, THE PCR COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

POINT II: THE PCR COURT ABUSED ITS DISCRETION BY FAILING TO HOLD AN EVIDENTIARY HEARING PURSUANT TO PRECIOSE WHERE THE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT III: THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, SUPPORT [HIS] REQUESTFOR POST-CONVICTION RELIEF.

II.

We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J.391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id.at 421.

A.

We are unpersuaded by defendant's argument that appellate counsel was ineffective in failing to appeal from the trial court's decision on fresh complaint. We apply the well-settled two-prong test for determining whether defendant was entitled to PCR. 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); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).

It is not deficient performance to withhold points on appeal that had no prospect of succeeding. SeeState v. O'Neal, 190 N.J.601, 619 (2007) ("It is not ineffective assistance of counsel . . . not to file a meritless motion . . . ."). As we are convinced there was no basis to appeal from the trial court's ruling, appellate counsel was not deficient.

As an uncodified hearsay exception, the fresh complaint rule allows, among other things, the State to introduce a sexual victim's out-of-court revelation of such conduct to a confidant shortly after the conduct occurs. The fresh complaint testimony negates a defense inference that the alleged offense must have been contrived because the victim did not promptly tell anyone about it. SeeState v. Hill, 121 N.J.150, 163 (1990). "[T]o qualify as fresh complaint,the victim's statements to someone [he or] she would ordinarily turn to for support, must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary." Ibid. "Whether these criteria for admissibility are satisfied is committed to the sound discretion of the trial judge." State v. W.B., 205 N.J.588, 616 (2011).

Having reviewed the record of the pre-trial hearing, we are satisfied there was sufficient credible evidence to support the trial court's ruling on admissibility. Gail testified at the pre-trial hearing that Theo spontaneously disclosed the assault in the basement. He did so while Gail questioned Theo about another incident. Gail had discovered that Theo and defendant were together in the bedroom that afternoon, behind a locked door an incident not disclosed to the jury. Gail was obviously a person to whom Theo would turn for support. And the evidence reflected that the disclosure about the assault in the basement was made the same day it occurred.

In sum, there was no trial court error. Consequently, appellate counsel was not ineffective by omitting the issue from defendant's appeal.

B.

Defendant also renews the argument in his pro se brief that his trial counsel was ineffective by failing to conduct an adequate investigation. As the trial court did not address these arguments, he requests a remand for that purpose.

It appears that the trial court did not address the arguments in defendant's pro se brief because the brief was never filed with the court. We note that neither PCR counsel nor the assistant prosecutor acknowledged, let alone addressed before the PCR court, the arguments in the pro se brief. That would indicate the brief simply was not before them.

However, we discern no necessity for a remand. Defendant's claim of inadequate investigation rests on nothing more than conclusory allegations, unsupported by adequate, competent evidence. A petitioner is obliged to establish the right to "relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J.451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). However, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Ibid. 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).

As we have noted, defendant's pro se brief itself is not competent evidence. SeeStowell, supra, 325 N.J. Superat 520-21. However, even if defendant provided a proper certification, his assertions would still be inadequate. Defendant offers no evidence that Theo made unsubstantiated accusations in the past. Instead, defendant himself testified that he believed Theo was a victim of prior sexual molestation. He did not allege that the reports of those prior incidents were false.

Defendant also does not provide any evidence that his son was afraid of Theo. Gail testified that before the incident with defendant, Theo was in counseling at school for allegedly inappropriately touching his brother. The Division of Youth and Family Services was involved. However, there was no evidence that Jim was intimidated by Theo. Although defendant complains that trial counsel was ineffective because he did not call defendant's son as a witness, Jim testified for the prosecution, and asserted he saw his father pull down Theo's pants.

In sum, defendant's pro se brief fails to establish a prima facie case of ineffective assistance of counsel warranting further consideration.

Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(2).

Affirmed.

1 We use defendant's initials to protect the children's privacy.

2 We utilize pseudonyms of the victim and witnesses.

3 The videotaped statement is not in the record before us.

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

5 The record before us does not indicate when the petition was filed. It was signed in May 2007 and stamped received by the Office of the Public Defender on May 22, 2007. We rely on the PCR court's finding that the petition was filed in July 2007.

6 The brief is not included in the record. We rely on the description provided in defendant's appellate brief.