STATE OF NEW JERSEY v. R.L.

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                        NOT FOR PUBLICATION WITHOUT THE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-0623-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

R.L.,

     Defendant-Appellant.
_____________________________

              Submitted December 14, 2017 – Decided March 5, 2018

              Before Judges Simonelli and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              10-05-0834.

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

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Carol M. Henderson,
              Assistant Attorney General, of counsel and on
              the brief).

PER CURIAM

        Defendant, R.L., appeals from the denial of his petition for

post-conviction relief (PCR) without an evidentiary hearing.                       For

the reasons that follow, we affirm.
     Defendant was convicted by a jury of sexual assault, 
N.J.S.A.

2C:14-2(b), and endangering the welfare of a child, 
N.J.S.A. 2C:24-

4(a).   The sentencing court imposed an aggregate sentence of seven

years imprisonment, subject to a No Early Release Act, 
N.J.S.A.

2C:43-7.2, parole disqualifier.        The trial court later denied

defendant's motion for a new trial.

     Defendant   appealed   and   we   affirmed   his   convictions   and

sentence in an unpublished opinion.      State v. R.L., No. A-1990-11

(App. Div. Mar. 10, 2014).    The Supreme Court denied his petition

for certification, State v. R.L., 
219 N.J. 628 (2014).

     The facts underlying defendant's convictions are set forth

in our earlier opinion and need not be repeated at length here.

R.L., slip op. at 4-7.

     Defendant filed a PCR petition on January 22, 2015, in which

he argued his trial counsel provided ineffective assistance by

failing to "use all of [defendant's] witnesses[,]" and "did not

ask questions" that defendant had given counsel in a letter.            He

also argued that there was insufficient evidence of his guilt, the

matter "should have never [gone] to trial," and his due process

rights were violated.

     A brief and amended petition were submitted on behalf of

defendant in August 2015.     In this brief, defendant argued that

he was deprived of effective assistance of trial counsel "where

                                   2                             A-0623-16T4
counsel did not properly prepare or investigate his case, present

necessary   witnesses[,]   and   allowed   evidence   into   the   case

prejudicial to [defendant]."

     The prejudicial evidence to which defendant referred related

to his trial counsel's strategic decision to elicit from a witness

– a therapist - the child-victim's statement that she understood

defendant was incarcerated and that the child hoped defendant

would remain in jail.   The witness did not know who told the child

that defendant was in jail, nor did the witness know whether it

was true.   In a sidebar conference with the trial court, counsel

acknowledged that he wished to use the statement as evidence of

influence and bias.     In fact, counsel relied upon the statement

in his summation to infer that others, who were biased against

defendant, told the victim about defendant's incarceration and

influenced the child to shape her accusations against defendant

to insure defendant's continued incarceration.

     The PCR court denied defendant's petition by order dated June

15, 2016.   On the same date, the court issued a nineteen-page

written decision setting forth its reasons for denying defendant's

petition without an evidentiary hearing.    In the court's decision,

it found that many of defendant's arguments were procedurally

barred by Rule 3:22-4 and Rule 3:22-5 because they were previously

addressed in our earlier opinion affirming his conviction, or they

                                  3                            A-0623-16T4
were issues he could have raised on appeal but did not. Addressing

defendant's remaining arguments, the PCR court found defendant did

not establish a prima facie claim of ineffective assistance of

counsel. Quoting our opinion in State v. Cummings, 
321 N.J. Super.
 154, 170 (App. Div. 1999), the PCR court found defendant's petition

was supported only by "bald allegations," and "only conclusory

statements    asserting        that    prior   counsel      was    ineffective

for . . . permitt[ing] prejudicial information to be heard by the

jury (i.e. that defendant was incarcerated) . . . ."                     The PCR

court concluded that defendant did not establish his claim that

counsel's    "conduct    (1)    fell   below   an    objective    standard      of

reasonableness   or     (2)    demonstrate[d]       how   the   result   of   the

proceedings would have been different."              It held that defendant

was not entitled to an evidentiary herring and denied his petition.

This appeal followed.

     Defendant presents the following issue for our consideration

in his appeal.

                 POINT I

                 THE TRIAL COURT ERRED IN DENYING THE
                 DEFENDANT'S   PETITION    FOR   POST
                 CONVICTION RELIEF WITHOUT AFFORDING
                 HIM AN EVIDENTIARY HEARING TO FULLY
                 ADDRESS HIS CONTENTION THAT HE
                 FAILED TO RECEIVE ADEQUATE LEGAL
                 REPRESENTATION FROM TRIAL COUNSEL.



                                        4                                A-0623-16T4
      Defendant   only    argues     that    contrary     to   the   PCR   court's

conclusion, trial counsel's decision to elicit testimony about the

child victim's statement to the therapist regarding defendant

being incarcerated established a prima facie claim of ineffective

assistance that warranted an evidentiary hearing.                    According to

defendant,    "[t]he    practical      effect   of   such      testimony    was    so

prejudicially inflammatory and detrimental to the defense that it

could only have effectively sealed the defendant's fate in the

eyes of the jurors." We are not persuaded by defendant's arguments

and affirm.

      The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was formulated

in Strickland v. Washington, 
466 U.S. 668 (1984), and adopted by

our Supreme Court in State v. Fritz, l
05 N.J. 42 (l987).                   In order

to prevail on a claim of ineffective assistance of counsel,

defendant must meet the two-prong test of establishing both that:

(l) counsel's performance was deficient and he or she made errors

that were so egregious that counsel was not functioning effectively

as   guaranteed   by    the    Sixth    Amendment    to     the   United     States

Constitution;     and    (2)   the     defect   in   performance       prejudiced

defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional



                                         5                                  A-0623-16T4
errors, the result of the proceeding would have been different."

Strickland, 
466 U.S.  at 687, 694.

     In reviewing claims of ineffective assistance of counsel,

courts apply a strong presumption that defense counsel "rendered

adequate assistance and made all significant decisions in the

exercise       of   reasonable    professional    judgment."         Id.    at   690.

"[C]omplaints 'merely of matters of trial strategy' will not serve

to ground a constitutional claim of inadequacy . . . ."                       Fritz,


105 N.J. at 54 (quoting State v. Williams, 
39 N.J. 471, 489 (1963),

overruled in part on other grounds by, State v. Czachor, 
82 N.J.
 392, 402 (1980)).

     PCR claims arising from trial counsel's strategic decisions

cannot    be    considered     in    isolation   nor   does   a   miscalculation

automatically         establish      ineffectiveness.         "The    quality       of

counsel's performance cannot be fairly assessed by focusing on a

handful    of       issues   while   ignoring    the   totality      of    counsel's

performance in the context of the State's evidence of defendant's

guilt."    State v. Castagna, 
187 N.J. 293, 314 (2006).                   Generally,

"strategic miscalculations or trial mistakes are insufficient to

warrant reversal 'except in those rare instances where they are

of such magnitude as to thwart the fundamental guarantee of [a]

fair trial.'"          Id. at 314-15 (quoting State v. Buonadonna, 
122 N.J. 22, 42 (1991)).

                                          6                                  A-0623-16T4
      "[A]n     otherwise   valid   conviction    will   not   be   overturned

merely because the defendant is dissatisfied with his or her

counsel's exercise of judgment during the trial."                     State v.

Allegro, 
193 N.J. 352, 367 (2008) (quoting Castagna, 
187 N.J. at
 314).     Although the parameters of such conduct are not easily

defined, "there is a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance

[and that, t]o rebut that strong presumption, a defendant must

establish that trial counsel's actions did not equate to sound

trial strategy." Allegro, 
193 N.J. at 366 (alteration in original)

(quoting Castagna, 
187 N.J. at 314).           Critically important to the

analysis is that the conduct must be judged "on the facts of the

particular case, viewed as of the time of counsel's conduct."                Id.

at 366-67 (quoting Castagna, 
187 N.J. at 314).

      We conclude from our review of the record that defendant

failed to make a prima facie showing of ineffectiveness of trial

counsel within the Strickland-Fritz test.              We are satisfied that

trial strategy was the dominant consideration in allowing the

witness    to    testify    about     the    child's   statement      regarding

defendant's incarceration.          In light of the fact that the theme

of defendant's defense was that the child's accusations were untrue

and     motivated    by     others,    the     reference    to      defendant's



                                       7                                A-0623-16T4
incarceration    was       clearly   part      of   counsel's    reasonable        trial

strategy.

       Even if the introduction of the statement was not strategic,

as the PCR court determined, defendant did not prove that without

the challenged testimony, the result of the trial would have been

different.      See    State    v.   Goodwin,       
173 N.J.   583,   597    (2002)

(addressing counsel's failure to file a suppression motion and

stating in those instances, in which prejudice is not presumed,

defendant must satisfy both Strickland prongs). While we recognize

that a jury's knowledge of a defendant's incarcerated status may,

in some instances, undermine the presumption of innocence to which

each   defendant      in    a   criminal       matter     is   entitled,   "passing

reference[s]    to     a    defendant's        incarcerated      status"      do     not

automatically diminish the presumption.                   State v. Martini, 
131 N.J. 176, 236 (1993) (citing State v. Childs, 
204 N.J. Super. 639,

651-52 (App. Div. 1985)), overruled in part on other grounds by,

State v. Fortin, 
178 N.J. 540 (2004).                     Even a direct question

regarding the custodial status of a defendant is not automatic

grounds for a mistrial, nor for a sua sponte curative instruction.

Martini, 
131 N.J. at 235-38; see also Childs, 
204 N.J. Super. at
 651-52.

       Having concluded that trial counsel used the reference to

defendant's incarceration to pursue a defense to the accusations

                                           8                                  A-0623-16T4
made against defendant, albeit unsuccessful, we agree with the PCR

court that an evidentiary hearing was not warranted.    See State

v. Preciose, 
129 N.J. 451, 462-63 (1992).

     Affirmed.




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