STATE OF NEW JERSEY v. JOHN S. HILKEVICH

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN S. HILKEVICH,

Defendant-Appellant.

________________________________________

January 25, 2017

Submitted December 13, 2016 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 99-09-0470.

John S. Hilkevich, appellant pro se.

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John S. Hilkevich appeals from an order dated April 25, 2014, which denied his petition for post-conviction relief (PCR). We affirm.

I.

In September 1999, defendant was charged in a twenty-three count indictment with two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(b); one count of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c); and various other sexual offenses involving three male victims between the ages of thirteen and sixteen. At the first trial, defendant was convicted of two counts of aggravated sexual assault and most of the lesser offenses.

The trial court sentenced defendant to an aggregate term of forty years of incarceration, with thirteen years and four months of parole ineligibility. Defendant appealed. We reversed defendant's convictions and remanded the matter for a new trial. State v. Hilkevich, No. A-3632-00 (App. Div. March 5, 2003) (Hilkevich I).

Thereafter, defendant was retried. One alleged victim chose not to testify at the second trial, and the charges involving that individual were dismissed. The trial record reveals the following. Defendant was a middle school science teacher with a Master's Degree in counseling services and a Ph.D. in psychology. In addition to teaching, defendant counseled and mentored troubled youths through youth advocacy and counseling programs.

Defendant resided in a rural area surrounded by woods and participated in various outdoor activities. At that time, he would bring adults and children he mentored to his home to participate in these activities. A.C. was a participant in a youth advocacy program with which defendant was associated, and defendant became A.C.'s youth advocate when he was about twelve years old. A year or two later, defendant became his counselor.

A.C. made about twenty-five trips each year to defendant's home during the three or four-year period that defendant acted as his youth advocate and counselor. A.C. testified that defendant sexually assaulted him around his fourteenth birthday, in the late spring or summer of 1995. According to A.C., defendant massaged him in the pelvic area and began to touch his penis, first with his hands and then with his mouth.

After this incident, A.C. continued to visit defendant's home for several years, and defendant did not again attempt to engage in any sexual activity with A.C. Several years later, A.C. reported the sexual assault when an investigator from the prosecutor's office came to his home and questioned him.

Defendant's other victim was M.F., who first became acquainted with defendant when he was a student in defendant's eighth-grade science class. At the time, M.F. was suffering from certain psychological problems. M.F. became friendly with defendant and began to go on camping trips with him. M.F. also visited defendant's home, where he engaged in various outdoor activities.

M.F. testified that in the summer of 1997, defendant sexually assaulted him at defendant's home. Defendant took M.F. for a canoe ride. When they returned, defendant began to massage M.F.'s neck. According to M.F., defendant put his hands down the front of his chest and into the top of his pants. Defendant and M.F. then went to a teepee in the backyard where they had adjoining beds. Defendant began to massage M.F. and grabbed his penis. Defendant then had M.F. perform oral sex upon him.

M.F. left defendant's house the next day and never returned thereafter. M.F. did not report the abuse until two years later, when he told a female friend about the sexual assault. M.F.'s friend told a cousin, who encouraged M.F. to report the incident to the appropriate authorities. Later, M.F. went to the prosecutor's office and gave a recorded statement about the sexual assault.

Defendant testified on his own behalf and denied ever engaging in any form of sexual activity with A.C. or M.F. However, the jury found defendant guilty on two counts of aggravated sexual assault as well as eight lesser charges. The trial court sentenced defendant on the aggravated sexual assaults to consecutive terms of fifteen years of imprisonment, each with five years of parole ineligibility. The court merged or imposed concurrent sentences on the other convictions.

Defendant filed a direct appeal and raised the following arguments

POINT I

THE TRIAL COURT'S EXCLUSION OF EVIDENCE THAT M.F. PREVIOUSLY MADE A FALSE CRIMINAL COMPLAINT WAS CONTRARY TO THE EXCEPTION TO N.J.R.E. 608 CARVED OUT BY THE SUPREME COURT IN STATE V. GUENTHER[, 181 N.J. 129 (2004)] AND VIOLATED DEFENDANT'S STATE AND FEDERAL CONFRONTATION CLAUSE RIGHTS AND HIS CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE.

POINT II

THE TRIAL COURT IMPROPERLY RESTRICTED THE TESTIMONY OF THE DEFENSE'S PSYCHIATRIC EXPERT.

POINT III

THE TRIAL COURT ERRONEOUSLY PRECLUDED THE DEFENSE FROM REHABILITATING DR. WEISS'S CREDIBILITY WITH TESTIMONY INDICATING THAT IT WOULD HAVE BEEN POINTLESS TO REVIEW THE VIDEOTAPED PORTION OF A.C.'S INTERVIEW BECAUSE THE VIDEOTAPE FAILED TO DEPICT THE FIRST HOUR OF THE INTERVIEW.

POINT IV

THE TRIAL COURT ERRED IN REFUSING TO ORDER A PSYCHIATRIC EVALUATION OF A.C.

POINT V

THE TRIAL COURT ERRONEOUSLY PERMITTED THE PROSECUTOR TO CROSS-EXAMINE DR. HILKEVICH BY CONFRONTING HIM WITH THE IRRELEVANT AND UNDULY PREJUDICIAL MAGNIFIED IMAGE OF HIS ERECT PENIS.

POINT VI

THE PROSECUTOR ENGAGED IN MULTIPLE INSTANCES OF MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DR. HILKEVICH OF A FAIR TRIAL.

POINT VII

DR. HILKEVICH'S CONVICTIONS MUST BE REVERSED BECAUSE OF CUMULATIVE ERROR.

POINT VIII

DR. HILKEVICH'S SENTENCE IS MANIFESTLY EXCESSIVE.

We affirmed defendant's convictions and the sentences imposed by the trial court for endangering the welfare of a child and aggravated criminal sexual contact; however, we vacated the sentences imposed for the aggravated sexual assaults because the trial court had not explained the reasons for those sentences. State v. Hilkevich, No. A-3169-06 (App. Div. April 8, 2008) (slip op. at 32) (Hilkevich II). We remanded the matter to the trial court for resentencing. Ibid. The Supreme Court later denied defendant's petition for certification. State v. Hilkevich, 199 N.J. 131 (2009).

On July 11, 2008, the trial court resentenced defendant on the aggravated sexual assaults. The court sentenced defendant to consecutive fifteen-year terms of imprisonment, each with five years of parole ineligibility. Defendant appealed and raised the following arguments

POINT I

THE COURT VIOLATED THE RULES OF COURT AND THE DIRECTIVE OF THE APPELLATE DIVISION AND DEPRIVED DEFENDANT OF A FAIR AND LEGAL HEARING.

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY INAPPROPRIATE.

POINT III

THE STATEMENTS OF A.C. AND M.F. ARE TEXTUALLY AND MATERIALLY ERRONEOUS AND CANNOT BE USED IN [A] SENTENCE DETERMINATION.

POINT IV

THE PROOF OF TAINTED EDITS OF [THE] RE-SENTENCING TRANSCRIPT CALLS INTO QUESTION THE INTEGRITY OF THE ENTIRE TRANSCRIPT RECORD AND DENIES DEFENDANT'S ABILITY AND RIGHT TO EFFECTIVELY ENGAGE [IN] THE LEGAL PROCESS.

POINT V

DEFENDANT'S RE-SENTENCING WAS SIGNIFICANTLY HARMED BY INEFFECTIVE REPRESENTATION BY COUNSEL.

POINT VI

THE DISMISSAL OF M.F.'S FELONY CHARGES MENTIONED DURING SENTENCING IMPACTS THE COURT'S FINDINGS BUT WAS IGNORED AND THE COURT'S RECORDS DELIBERATELY MADE THE MENTION INCOMPREHENSIBLE.

POINT VII

THE COURT'S ERRORS ARE NOT ONLY INTENSIFIED WHEN CUMULATIVELY MERGED BUT INTERTWINED BEYOND SEPARATION.

We affirmed the sentences. State v. Hilkevich, No. A-0592-08 (App. Div. March 12, 2010) (Hilkevich III). Defendant then filed a petition for certification with the Supreme Court. The Court denied the petition. State v. Hilkevich, 202 N.J. 346 (2010).

II.

On March 12, 2012, defendant filed a pro se petition for PCR. He thereafter filed a brief, in which he argued that: (1) his state and federal constitutional claims satisfy the requirements of the court rules on PCR; (2) the trial court violated his right to due process by neglecting motions calling "for [the] exercise of judicial duties"; (3) the prosecutor and the trial court knowingly and unlawfully engaged in misconduct that had a negative impact upon the verdict and sentence; and (4) he was denied the effective assistance of counsel at sentencing.

Defendant filed supplemental briefs in support of his petition. In these submissions, defendant argued that: (1) he was entitled to a new trial based on newly-discovered evidence; (2) the verdict would have been different if the jury in the second trial had been informed that the State had dismissed criminal charges against M.F. that had been pending in Mercer County; (3) the assistant prosecutor violated the Rules of Professional Conduct (RPCs) by failing to disclose certain "changes" in discovery; (4) he could not properly prepare for changes in testimony by his former wife and M.F.; (5) the prosecutor violated the RPCs by allegedly "cleaning" M.F.'s criminal record prior to trial; (6) the Burlington County Prosecutor's Office allegedly used improper interrogation tactics with regard to certain individuals who did not testify; (7) the assistant prosecutor improperly offered personal opinions as to defendant's guilt in his summation; and (8) the trial judge erred by failing to give the jury a curative instruction as suggested by defense counsel.

The PCR court filed a written opinion in which it found that the issues raised by defendant in the PCR petition were either barred by Rule 3:22-5 because they had been previously adjudicated, or were without merit. The court also found that defendant was not entitled to an evidentiary hearing on his petition. The court entered an order dated April 25, 2014, denying PCR. This appeal followed.

In this appeal, defendant argues

Point I

The Matters Raised in Defendant's PCR Petition Are Not Procedurally Barred.

Point II

Defendant is Not Procedurally Barred from Raising Discovery Violations.

Point III

Matters of Misconduct and Rule Violations by the Assistant Prosecutor are Not Procedurally Barred.

Point IV

Defendant is Not Barred from Presenting Newly Discovered Evidence.

Point V

The Court Completely Ignored the Hearing Memorandum Providing Prima Facie Evidence of Fraudulent Resentencing and Undisclosed Discovery.

Point VI

The Prosecutor Selectively Ignored the Majority of Defendant's Arguments in Violation of the Appellate Division's Statement in State v. Roper, [362 N.J. Super.248 (App. Div. 2003)] as Did the Court's Decision.

III.

As noted, defendant argues that the PCR court erred by denying PCR. We disagree. Here, the court correctly determined that the claims were either barred by Rule 3:22-5 or were without merit.

A. Alleged Discovery Violations

In the PCR court, defendant claimed that the State failed to provide him with discovery, including documents and communications related to the State's dismissal of certain criminal charges against M.F. that had been pending in Mercer County. Defendant claimed that the trial court and this court ignored his motions to compel discovery. He also claimed that the trial court and this court failed to rule on his motions to settle the record.

On appeal, defendant argues that this claim is not barred by Rule 3:22-5 because his motions were ignored and his claims were never adjudicated. The PCR court determined, however, that the claim was barred by Rule 3:22-5 because the issues had been addressed and adjudicated. The record supports that determination.

Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any grounds for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule . . . ." Therefore, a prior adjudication of any issue, particularly those addressed on direct appeal, will ordinarily bar PCR. State v. Harris, 181 N.J. 391, 494 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

The record shows that after this court decided Hilkevich IIIon March 12, 2010, and the Supreme Court denied defendant's petition for certification for review of the decision on June 1, 2010, defendant filed a motion for discovery and a motion to settle the record in the trial court. Defendant argued that the State had failed to disclose evidence regarding the dismissal of the criminal charges against M.F. that had been pending in Mercer County. He also argued that the State had altered or omitted certain evidence from the trial record.

In October 2010, defendant filed a motion for leave to appeal with this court, arguing that the trial court had failed to act on his discovery motion. However, the trial court had denied that motion on August 17, 2010. We denied defendant's motion for leave to appeal on October 18, 2010. In addition, the trial court and this court denied defendant's motions to settle the record.

Therefore, the PCR court correctly determined that defendant was precluded by Rule 3:22-5 from re-litigating his claim that the State failed to provide discovery and his claim that the record in his direct appeal improperly excluded certain evidence.

B. Alleged Prosecutorial Misconduct

Defendant further alleged that the assistant prosecutor had withheld discovery, improperly caused M.F.'s criminal charges to be dismissed in preparation for the second trial, and tampered with the trial record. Defendant alleged that in doing so, the assistant prosecutor violated various provisions of the RPCs. The PCR court determined that defendant was barred by Rule 3:22-5 from re-litigating these issues because they had been raised and adjudicated in defendant's direct appeal. The record supports that determination.

In his direct appeal, defendant argued that the assistant prosecutor had acted improperly in certain respects. In Hilkevich II, we stated that only one claim of prosecutorial impropriety warranted discussion, specifically defendant's claim that the assistant prosecutor had created the "misleading impression" that an expert defense witness was "professionally deficient in failing to conduct a psychiatric examination of A.C." Hilkevich II, supra, at 26.

We rejected that argument, along with defendant's other claims of prosecutorial impropriety, noting that they did "not have sufficient merit to warrant discussion." Id. at 28 (citing R. 2:11-3(e)(2)). Thus, as the PCR court found, defendant's claims of prosecutorial misconduct had been adjudicated and he was barred by Rule 3:22-5 from asserting those claims in a PCR petition.

C. Newly Discovered Evidence

Defendant also alleged in his PCR petition that his convictions should be reversed based on newly discovered evidence, specifically, evidence regarding the State's dismissal of criminal charges against M.F. that had been pending in Mercer County. As the PCR court noted, this court had previously rejected defendant's claims of misconduct by the State in his direct appeal and the appeal from the resentencing. The PCR court nevertheless addressed the claim and determined that if such evidence existed, it would not warrant a new trial under the standards enunciated in State v. Carter, 85 N.J. 300, 314 (1981).

Carter explains that evidence is newly discovered and sufficient to warrant a new trial when it is: "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." Ibid.

Furthermore, evidence is material if it has "'some bearing on the claims being advanced.'" State v. Ways, 180 N.J. 171, 188 (2004) (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). "[E]vidence that supports a defense, such as alibi, third-party guilt, or a general denial of guilt would be material." Ibid. However, evidence that is "merely cumulative, or impeaching, or contradictory . . . is not of great significance and would probably not alter the outcome of a verdict." Id. at 189 (internal quotation marks omitted).

Here, the PCR court found that if the evidence cited by defendant existed, it was not newly discovered. The court noted that at the second trial, defendant's attorney had discovered that the State had dismissed charges against M.F. that had been pending in Mercer County. The court added that the

evidence is not material because it did not have any bearing on [defendant's] general denial of guilt to the charges of sexual assault. The fact that M.F. had criminal charges dismissed against him from another county, which could have been for any number of reasons, years after the allegations of assault by [d]efendant, has no bearing on [d]efendant's claim of innocence. Evidence of dismissals could only be used to impeach M.F.'s credibility and would not raise a reasonable doubt to a jury sufficient to grant [d]efendant a new trial.

The record supports the court's findings. We conclude that the PCR court correctly found that defendant's claim regarding newly discovered evidence is entirely without merit.

D. Ineffective Assistance of Counsel

Defendant also claimed that he had been denied the effective assistance of counsel at resentencing. He alleged that his counsel at the resentencing hearing was an inexperienced attorney whose principal area of practice was employment law. He alleged that his attorney erroneously filed a sentencing memorandum that cited federal law; mischaracterized the mitigation evidence to the court; instructed defendant's family and friends to prepare statements on behalf of defendant; and allowed these individuals to address the court before the victims.

The PCR court noted that in his appeal from the resentencing, defendant had argued that he had been significantly harmed by ineffective representation of counsel. We rejected that argument, finding that it lacked sufficient merit to warrant discussion in a written opinion. Hilkevich III, supra, at 5. The PCR court thus found that defendant's claim of ineffective assistance of counsel at the resentencing had been adjudicated, and he was barred by Rule 3:22-5 from raising that claim in his PCR petition.

Even so, the court addressed the issue on the merits. The court noted that to prevail on a claim of ineffective assistance of counsel, a defendant had to meet the two-part test established by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland, a defendant must show that his attorney's performance was deficient, and that counsel's deficient performance prejudiced his defense. Strickland, supra, 466 U.S. at 687, 103 S. Ct. at 2064, 80 L. Ed. 2d at 693.

The PCR court correctly determined that defendant failed to satisfy the Strickland test. The court rejected defendant's claim that counsel's sentencing memorandum had not been made part of the record. The court also rejected defendant's claim that the memorandum improperly cited federal law, and his contention that counsel had mischaracterized mitigating evidence, specifically, a website that defendant ran while in jail.

The court wrote that defendant's claim that counsel erred by allowing defendant's friends and family to speak at the resentencing "is nothing more than a bald assertion" of ineffective assistance of counsel. The court stated that

[e]very point [d]efendant raises in support of his ineffectiveness claim actually establishes the effectiveness of counsel at resentencing. It cannot be said that filing a sentencing memorandum that includes mitigation evidence, putting forth mitigation evidence on the record, and arranging for the [c]ourt to hear statements in support of a client constitutes [the] ineffectiveness of counsel. Further, [d]efendant was not harmed by these actions because the Appellate Division ruled [that] the [c]ourt did not improperly consider any evidence put forth by his attorney or the State in imposing the same sentence.

The record supports the PCR court's findings. We therefore conclude that the PCR court correctly found defendant's claim of ineffective assistance of counsel at resentencing was barred by Rule 3:22-5 and also without merit.

E. The State and the PCR Court Allegedly Ignored Defendant's

Claims

Defendant argues that he "listed thirteen issues and matters of facts the prosecutor did not even mention in reply [to his PCR petition], at least seven of which constitute reversible error standing alone." He contends that, by doing so, the State did not proceed in the manner required by State v. Roper, 362 N.J. Super. 248 (App. Div. 2003). Defendant further argues that the PCR court did not address all of his claims. We are convinced that these arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

We add, however, that in the PCR court, the State responded to defendant's initial brief but did not file a reply to one of defendant's supplemental briefs because the brief had not been properly served. Furthermore, the State addressed the issues sufficiently in oral argument before the PCR court. We therefore reject defendant's contention that the State improperly ignored many of his arguments.

Affirmed.