STATE OF NEW JERSEY v. CLEMENT BILSKI, JR

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                        NOT FOR PUBLICATION WITHOUT THE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-0416-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CLEMENT BILSKI, JR.,

     Defendant-Appellant.
________________________________

              Submitted April 18, 2018 – Decided May 8, 2018

              Before Judges Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              06-08-1816.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Mark Zavotsky, Designated
              Counsel, on the brief).

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Monica do
              Outeiro, Assistant Prosecutor, of counsel and
              on the brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
     Defendant Clement Bilski, Jr. appeals from the July 27, 2015

order   denying    his    petition   for     post-conviction         relief     (PCR)

without an evidentiary hearing.            We affirm.

     In August 2006, defendant was charged with 429 counts of sex-

related crimes, which involved over 150 incidents and numerous

victims, including 11 children.              All counts were supported by

video   recordings       depicting   defendant       engaged    in    the      above-

mentioned crimes.

     The first 150 counts of the indictment, which related to

sexual acts committed against one child victim, were severed by

request of the State.        Defendant did not object.              Specifically,

defendant was charged with seventy-four counts of second-degree

endangering the welfare of a child, 
N.J.S.A. 2C:24-4(b)(4); fifty-

two counts of first-degree aggravated sexual assault, 
N.J.S.A.

2C:14-2(a)(1); fifteen counts of second-degree sexual assault,


N.J.S.A.      2C:14-2(b);    five    counts     of    third-degree       criminal

restraint,     
N.J.S.A.     2C:13-2(a);      two     counts    of    third-degree

possession of a weapon for an unlawful purpose, 
N.J.S.A. 2C:39-

4(d);   one    count   of   third-degree      promoting       obscene   material,


N.J.S.A. 2C:34-3(b)(2); and one count of third-degree endangering

the welfare of a child, 
N.J.S.A. 2C:24-4(a).

     Several pretrial motions were held prior to trial, all of

which were denied.       Additionally, in preparation to defend against

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the charges of the indictment, counsel for defendant obtained

permission from the Office of the Public Defender (OPD) to allow

defendant to be evaluated by an expert to explore the possibility

of a "psychiatric defense."           Unsatisfied with the first expert

opinion, defendant's counsel again sought permission from the OPD

to have a second psychiatric evaluation of defendant implemented.

Although   initially    denied,   a    second   evaluation   was   approved

rendering once more an evaluation that "was not helpful" to

defendant's defense. A third request for an evaluation was denied.

      Trial commenced on March 4 through 6, 2008, and again on

March 11, 2008. Evidence presented at trial consisted of testimony

of the investigating officers, the victim's father, and edited

video recordings that contained "approximately five hours of very

graphic, very clear video[s] of child pornography[.]"

      At the conclusion of the State's case, the jury was asked to

consider 143 counts of sex-related offenses against defendant,

excluding the counts charging defendant with criminal restraint

and   possession   of   a   weapon     for   unlawful   purpose.       After

deliberation, on March 12, 2008, the jury returned a guilty verdict

as to all 143 counts presented.

      Defendant appeared for sentencing on May 30, 2008.           The judge

heard from the victim's father, both counsel, and defendant before

weighing the aggravating and mitigating factors, and imposing

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sentence.       In fashioning an appropriate custodial sentence, the

judge noted that "separation from society is the main concern of

this [c]ourt in this case[.]"       The judge further added, "For over

four years defendant made a sex slave out of a beautiful innocent

child.    For the multiple times he violated her body in the most

degrading of ways, he deserved consecutive sentences that will

prevent him from being ever released back into society."                 The

judge then sentenced defendant to consecutive custodial sentences

on 4 of the 143 counts for an aggregate sentence of 80 years in

New    Jersey    State   Prison,   subject   to   61   years   of    parole

ineligibility.

       Subsequently, defendant appealed the conviction and sentence

to the Appellate Division.      We affirmed finding "while harsh, [it]

is fair overall and does not shock the judicial conscience."                A

petition for certification was then filed with the New Jersey

Supreme Court, which was denied on July 22, 2011. State v. Bilski,


207 N.J. 228 (2011).

       In September 2012, defendant filed a petition for PCR.           Oral

argument was heard on two occasions, both yielding a reserved

decision.       On July 27, 2015, the PCR judge issued a twenty-six

page written decision that supported the denial of defendant's

PCR.    This appeal followed.

       Defendant raises the following arguments on appeal:

                                     4                              A-0416-15T3
POINT I

THE PCR JUDGE ERRED WHEN SHE RULED DEFENDANT
WAS   BARRED   FROM   BRINGING   A  CLAIM   OF
INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE
TO   INVESTIGATE    A  DEFECTIVE   THIRD-PARTY
SUBPOENA AND FAILURE TO INVESTIGATE FALSE
FACTS CONTAINED IN AN AFFIDAVIT.

POINT II

DEFENDANT'S PETITION FOR POST[-]CONVICTION
RELIEF SHOULD NOT BE BARRED AS HAVING HAD THE
POTENTIAL OF BEING HEARD IN PRIOR PROCEEDINGS
BECAUSE NO RECORD EXISTED TO MAKE THAT
ADJUDICATION AND BECAUSE THE INTERESTS OF
JUSTICE REQUIRE HIS CLAIMS BE HEARD.

POINT III

DEFENDNAT HAS SUBMITTED PRIMA FACIE EVIDENCE
REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING
ON POST[-]CONVICTION RELIEF.

POINT IV

DEFNDANT WAS DENIED EFFECTIVE ASSITANCE OF
COUNSEL ENTITLING HIM TO POST[-]CONVICTION
RELIEF.

     (A) Failure to obtain a psychiatric
     exam to conduct a minimally adequate
     investigation   into   the   obvious
     available defenses of insanity or
     diminished capacity.

     (B)   Counsel was ineffective for
     failing to obtain an expert to
     support   defendant's    recognized
     mental illness as an applicable
     mitigating factor at sentencing.




                      5                          A-0416-15T3
           POINT V

           DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF
           PCR COUNSEL FOR FAILING TO ENGAGE IN A MINIMAL
           LEVEL OF PREPARATION PRIOR TO REPRESENTING
           DEFENDANT AT HIS PCR HEARING.

      Defendant filed a pro se brief in support of his appeal

outlining additional arguments not addressed by his counsel. Those

arguments were not raised below.           Therefore, we will not address

them in a written opinion.

      "Post-conviction   relief   is       New   Jersey's    analogue   to   the

federal writ of habeas corpus."        State v. Preciose, 
129 N.J. 451,

459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled

to post-conviction relief if there was a "[s]ubstantial denial in

the   conviction   proceedings    of       defendant's      rights   under   the

Constitution of the United States or the Constitution or laws of

the State of New Jersey[.]"        "A petitioner must establish the

right to such relief by a preponderance of the credible evidence."

Preciose, 
129 N.J. at 459 (citations omitted).               "To sustain that

burden, specific facts" that "provide the court with an adequate

basis on which to rest its decision" must be articulated.                 State

v. Mitchell, 
126 N.J. 565, 579 (1992).

      Claims of constitutionally ineffective assistance of counsel

are well suited for post-conviction review.            See R. 3:22-4(a)(2);

Preciose, 
129 N.J. at 460.    In determining whether a defendant is


                                       6                                A-0416-15T3
entitled to relief on the basis of ineffective assistance of

counsel, New Jersey courts apply the two-prong test articulated

by the United States Supreme Court in Strickland v. Washington,


466 U.S. 668, 687 (1984), and United States v. Cronic, 
466 U.S. 648, 658-60 (1984). Preciose, 
129 N.J. at 463; see State v. Fritz,


105 N.J. 42, 49-50 (1987).

     Under the first prong of the Strickland test, a "defendant

must show that [defense] counsel's performance was deficient."

Strickland, 
466 U.S.  at 687.     Under the second prong, a defendant

must demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different."   Id. at 694.

     Having considered the record in light of controlling law, we

affirm substantially for the reasons stated in the comprehensive,

well-reasoned written opinion of Judge Honora O'Brien Kilgallen.

     Affirmed.




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