STATE OF NEW JERSEY v. A.R.

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                       NOT FOR PUBLICATION WITHOUT THE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-2215-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

A.R.,

     Defendant-Appellant.
___________________________

              Submitted January 22, 2018 – Decided March 8, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 09-12-0992.

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

              Jennifer    Webb-McRae,   Cumberland    County
              Prosecutor, attorney for respondent (Kim L.
              Barfield, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Defendant A.R.1 appeals from a September 26, 2016 order

denying his petition for post-conviction relief (PCR) without an

evidentiary hearing.    Having reviewed the record in light of the

applicable law, we affirm.

                                   I.

     The underlying facts in this case are set forth at length in

our opinion on defendant's direct appeal, State v. A.R., A-3286-

11 (App. Div. Oct. 29, 2013), certif. denied, 
224 N.J. 124 (2016).

We therefore limit our recitation of the facts to those relevant

to defendant's PCR petition.

     The   indictment   alleged   defendant   sexually   assaulted   his

daughter Ann from December 1994, when she was eight years old,

until February 2002, when she was sixteen.        It also charged him

with sexually assaulting and offensively touching his younger

daughter Alice during a one-year period beginning on August 1,

2002, when she was twelve years old.    The daughters first reported

the assaults to the police in 2009, when Ann was twenty-three and

Alice was eighteen.

     At trial, the State primarily relied on the testimony of Ann,

Alice and their brother Arnold.     Ann testified defendant sexually

assaulted her on almost a daily basis from the time she was eight


1
   We employ initials and pseudonyms throughout this opinion to
protect the privacy of the victims.

                                   2                            A-2215-16T3
or ten years old until she was approximately sixteen.             Alice

testified Ann and defendant had a relationship that was like that

of a married couple.     Alice saw defendant and Ann kiss "like a

making-out kiss," and go into the bedroom of their home alone.

Arnold explained he once saw defendant on top of Ann as she laid

naked on a couch, when she was only eight to ten years old.      During

the following years, defendant directed that Arnold serve as a

look-out when defendant and Ann had sexual relations in empty

movie theaters where defendant, Ann and Arnold performed late

evening janitorial services.

     Alice testified that when she turned twelve, defendant began

to sexually abuse her.   She explained that defendant used his hand

to "rub it up [her] skirt," "used to feel up on [her]," and, on

one occasion, he put her on top of him, pushed her underwear to

the side, and rubbed his penis on her.

     The   trial   testimony   showed   the   children   had   numerous

opportunities over the years to report the sexual assaults and

abuse, but did not.    Ann explained that the Division of Youth and

Family Services (DYFS)2 "was always in [the family's] life," and

that she spoke with DYFS caseworkers at different times during the




2 Effective June 29, 2012, the name of the Division of Youth and
Family Services was changed to the Division of Child Protection
and Permanency. L. 2012, c. 16.

                                  3                             A-2215-16T3
period she was being assaulted, but never reported defendant's

assaults.      She particularly recalled speaking to a DYFS caseworker

named "Diana," and stating defendant never abused her.

     Ann recalled she underwent a physical examination arranged

by DYFS and never disclosed defendant's ongoing sexual assaults

to the doctor.          She admitted that in 2004, when she was eighteen

years old, she was interviewed by a local police detective who

asked if defendant ever touched her, and she said "no."                              Ann

testified she never reported the assaults to any school officials

or to her husband.

     Alice also testified that she spoke with DYFS caseworkers

over the years and never disclosed defendant's assaultive conduct.

More particularly, she acknowledged that she spoke with DYFS

caseworkers once in 2004 and twice in 2005, and did not report

defendant's actions.              She admitted DYFS was involved with her

family   for      a   "good   number   of       years,"    and   she   never    made    a

disclosure because she was "never asked."

     Arnold testified that in 2004 and 2005, he spoke with a local

police detective and reported defendant's relationship with Ann.

Arnold     also       testified    defendant       physically      abused      him   and

regularly      threatened     to    beat    him    if     he   reported   defendant's

conduct.



                                            4                                   A-2215-16T3
     In 2009, Alice first disclosed to Ann that defendant had

sexually    assaulted   her.    With    Ann's   support,   Alice   reported

defendant's actions to the police. At that time, Ann also reported

defendant's sexual assaults upon her.

     A jury convicted defendant of two counts of second-degree

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

degree     sexual   assault,   
N.J.S.A.   2C:14-2(b),      and   the     petty

disorderly persons offense of offensive touching, 
N.J.S.A. 2C:33-

4(b). The court imposed an aggregate sentence of twenty years

subject to the requirements of the No Early Release Act, 
N.J.S.A.

2C:43-7.2, parole supervision for life, 
N.J.S.A. 2C:43-6.4, and

compliance with the requirements of Megan's Law, 
N.J.S.A. 2C:7-1

to -23.    We affirmed defendant's conviction and sentence on direct

appeal.     A.R., A-3286-11 (slip op. at 19), and his petition for

certification was denied, A.R., 
224 N.J. 124.

     Defendant filed a pro se verified PCR and memoranda 3 alleging

ineffective assistance of his trial counsel and errors by the

trial court.    Defendant's assigned counsel subsequently submitted



3
   During oral argument on the PCR petition, defendant's counsel
suggested defendant filed multiple pro se submissions. The record
on appeal includes only a February 10, 2016 three-page Verified
Petition For Post Conviction Relief with an attached eight-page
handwritten legal memorandum, and a July 30, 2016 twenty-nine page
handwritten legal memorandum.


                                    5                                  A-2215-16T3
a brief to the PCR court joining in defendant's arguments and

asserting   that   trial   counsel   was   ineffective   by   failing    to

interview two witnesses: Danner Hardwed,4 an Atlantic County DYFS

caseworker, and Willfredo Reyes,5 who defendant claimed knew the

family and was aware defendant's wife had animosity and jealousy

towards defendant and caused their children to fabricate the abuse

allegations.

     At oral argument on the PCR application, defendant's counsel

advised the court that after having "numerous conversations" with

defendant, his "only issue is that there were two witnesses that

this [t]rial [a]ttorney failed to call" that "would have aided his

defense."   Counsel represented that defendant said Reyes would

have told the jury that defendant did not sexually assault his

daughters, and Hardwed would have testified that she would have

taken the children away in 2002 if it had been reported defendant

committed any of the alleged acts.

     The court addressed issues asserted in defendant's pro se

submissions.   For example, defendant generally asserted his trial



4
   The record and briefs variously refer to "Danner Hardwed" and
"Diana Harwed." We understand the references to be to the same
person.
5
   The record and briefs variously refer to "Willfredo Reyes" and
"Wilfredo Reyes." We understand the references to be to the same
person.

                                     6                            A-2215-16T3
counsel was ineffective by failing to introduce evidence presented

during a 2002 DYFS investigation and in a 2007 trial.                    The court

observed     that     defendant    failed        to   precisely    identify       the

investigation       and    proceeding,     did    not   identify    any    alleged

relevant evidence that would have been admissible at his trial,

and failed to make any demonstration that introduction of evidence

from   the   investigation        and   proceeding      would     have   favorably

affected the outcome of his trial.               The court stated it could not

properly grant a PCR petition or order an evidentiary hearing on

defendant's PCR petition based only on speculation as to what

occurred     during    the    referenced      2002    investigation      and    2007

proceeding.    The court further observed that a decision by counsel

not to introduce evidence concerning a prior DYFS investigation

at   trial   may    have     constituted     a    carefully     considered     trial

strategy.

       The court further denied the PCR petition because defendant

failed to present evidence showing what the purported witnesses,

Hardwed and Reyes, would have                testified about and how their

putative testimony would have changed the result of defendant's

trial.   The court determined defendant failed to establish a prima

facie showing of ineffective assistance of counsel, and denied

defendant's PCR petition.



                                         7                                   A-2215-16T3
       On appeal, defendant presents the following arguments for our

consideration:

            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 AS A RESULT
            OF TRIAL COUNSEL'S FAILURE TO CALL CERTAIN
            WITNESSES ON HIS BEHALF.

            POINT II

            SINCE THE DEFENDANT FAILED TO RECEIVE ADEQUATE
            LEGAL REPRESENTATION FROM POST CONVICTION
            RELIEF COUNSEL, THE MATTER SHOULD BE REMANDED
            TO THE TRIAL COURT TO ASSIGN NEW POST
            CONVICTION RELIEF COUNSEL TO REPRESENT HIM,
            TO   PERMIT   THE   FILING   OF   SUPPLEMENTAL
            SUBMISSIONS ON HIS BEHALF, AND TO CONDUCT A
            NEW HEARING RELATING THERETO. (NOT RAISED
            BELOW).

                                        II.

       We review the legal conclusions of a PCR court de novo. State

v. Harris, 
181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P.

v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378 (1995)).         The de

novo standard of review applies to mixed questions of fact and

law.   Id. at 420.     Where an evidentiary hearing has not been held,

it is within our authority "to conduct a de novo review of both

the factual findings and legal conclusions of the PCR court."       Id.

at 421.    We apply that standard here.


                                    8                          A-2215-16T3
      To prevail on a claim of ineffective assistance of counsel

raised under the United States Constitution, a defendant must

satisfy the two-part test established by the Supreme Court in

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

Supreme Court in State v. Fritz, 
105 N.J. 42, 58 (1987).             Under

the first prong of the Strickland standard, a petitioner must show

counsel's performance was deficient.       It must be demonstrated that

counsel's handling of the matter "fell below an objective standard

of reasonableness" and that "counsel made errors so serious that

counsel   was   not   functioning   as   the   'counsel'   guaranteed   the

defendant by the Sixth Amendment."        Strickland, 
466 U.S. at 687-

88.

      Under the second prong of the standard, a defendant "must

show that the deficient performance prejudiced the defense."            Id.

at 687. There must be a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different."         Id. at 694.       A petitioner must

demonstrate that "counsel's errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable."

Id. at 687. "The error committed must be so serious as to undermine

the court's confidence in the jury's verdict or result reached."

State v. Chew, 
179 N.J. 186, 204 (2004) (citing Strickland, 
466 U.S. at 694).

                                     9                             A-2215-16T3
       We review a judge's decision to deny a PCR petition without

an evidentiary hearing for abuse of discretion. State v. Preciose,


129 N.J. 451, 462 (1992).         A hearing is required only when (1) a

defendant establishes a prima facie case in support of PCR, (2)

the court determines that there are disputed issues of material

fact that cannot be resolved by review of the existing record, and

(3) the court determines that an evidentiary hearing is required

to resolve the claims asserted.            State v. Porter, 
216 N.J. 343,

354 (2013)     (citing     R.   3:22-10(b)).       "A     prima    facie    case    is

established when a defendant demonstrates 'a reasonable likelihood

that his or her claim, viewing the facts alleged in the light most

favorable    to    the   defendant,    will    ultimately         succeed    on    the

merits.'" Id. at 355 (quoting R. 3:22-10(b)).

       "[T]o establish a prima facie claim a defendant must do more

than make bald assertions that he was denied effective assistance

of counsel."       Ibid. (quoting State v. Cummings, 
321 N.J. Super.
 154, 170 (App. Div. 1999)).           PCR petitions must be "accompanied

by an affidavit or certification by defendant, or by others,

setting forth with particularity[,]"               State v. Jones, 
219 N.J.
 298,   312   (2014),     "facts   sufficient       to   demonstrate        counsel's

alleged substandard performance," Porter, 
216 N.J. at 355 (quoting

Cummings,    321    N.J.   Super.   at     170);    see    also    R.   3:22-10(c)

(requiring that factual predicates for PCR claims "must be made

                                      10                                     A-2215-16T3
by an affidavit or certification pursuant to Rule 1:4-4 and based

on personal knowledge of the declarant"). When a defendant asserts

that his attorney failed to call exculpatory witnesses, "he must

assert the facts that would have been revealed, 'supported by

affidavits or certifications based upon the personal knowledge of

the affiant or the person making the certification.'"          State v.

Petrozelli, 
351 N.J. Super. 14, 23 (App. Div. 2002) (quoting

Cummings, 
321 N.J. Super. at 170).

     Defendant claims his counsel was ineffective by failing to

call Hardwed and Reyes as witnesses at trial.         Our Supreme Court

has observed that "[d]etermining which witnesses" to call to

testify "is one of the most difficult strategic decisions that any

trial attorney must confront."      State v. Arthur, 
184 N.J. 307, 320

(2005).   "[A]   defense    attorney's   decision    concerning       which

witnesses to call to the stand is 'an art,' and a court's review

of such a decision should be 'highly deferential[.]'"         Id. at 321

(quoting Strickland, 
466 U.S.  at 689, 693).

     Defendant   fails     to   demonstrate   his   trial   counsel    was

ineffective by failing to call Hardwed and Reyes as witnesses at

trial.    His claim is founded solely on the bald and conclusory

assertion they would have provided testimony that would have

changed the outcome of his trial.        The assertion is unsupported

by an affidavit or certification based on personal knowledge

                                   11                             A-2215-16T3
establishing what would have been revealed if they had testified.

See Petrozelli, 
351 N.J. Super. at 23;           see also State v. Bey, 
161 N.J.     233,    262    (1999)   (finding     claim    based    on    defendant's

speculation is insufficient for grant of post-conviction relief).

       Defendant also failed to present any facts supported by an

affidavit or certification establishing a reasonable probability

that had the witnesses testified at trial, the result would have

been different.        See Strickland, 
466 U.S.  at 694; see, e.g., Bey,


161 N.J. at 262 (finding trial counsel is not ineffective by

failing to call witnesses whose testimony would not have changed

the outcome).          Even accepting defendant's supported conclusory

assertions, defendant failed to demonstrate any probability the

putative testimony of the witnesses would have changed the trial

outcome.        Defendant alleges Hardwed would have established that

DYFS's    involvement      and   investigations       between   1994    and   2003

revealed allegations against defendant were unsubstantiated, and

that Ann did not report defendant's sexual assaults during that

time.      Such testimony        would   not have     changed   the    result    of

defendant's trial, however, because Ann testified she spoke with

different DYFS representatives during the years defendant sexually

assaulted her, never disclosed defendant's actions, and told a

DYFS caseworker that defendant did not sexually assault her.



                                         12                               A-2215-16T3
     Defendant argues that if Reyes testified, he would have

established the children's mother was "abusive to Ann and was

known to make false sexual allegations against defendant involving

Ann." Ann testified her mother was physically and mentally abusive

toward her during the years defendant sexually assaulted her, and

therefore any testimony from Reyes concerning the mother's abuse

would have added little to Ann's testimony, which was based on

Ann's personal knowledge.         Also, defendant does not claim Reyes

had personal knowledge of the mother's purported false allegations

that defendant was sexually assaulting Ann and, thus, Reyes would

have been unable to testify to such alleged facts at trial.

     A defendant must establish both prongs of the Strickland

standard   in   order   to   obtain    a    reversal   of   the   challenged

conviction.     Strickland, 
466 U.S.  at 687; State v. Nash, 
212 N.J.
 518, 542 (2013); Fritz, 
105 N.J. at 52.           As the PCR court aptly

determined    here,   defendant    failed    to   sustain   his   burden    of

establishing a prima facie claim of ineffective assistance of

counsel under both prongs of the Strickland standard.             The court

correctly denied defendant's PCR petition.

     Defendant also argues PCR counsel was ineffective by failing

to independently review defendant's case and assert available

meritorious arguments on defendant's behalf.           Defendant argues PCR

counsel did not provide effective representation because his brief

                                      13                             A-2215-16T3
in   the   PCR    court   contained      arguments      based   solely      on     trial

counsel's    failure      to   call   Hardwed      and    Reyes      as   witnesses.

Defendant contends "it is inconceivable that" in a seven-day trial

PCR counsel could not find a "bona fide issue [that] could be

raised on defendant's behalf which was factually and legally

supported by [the] record."

      PCR counsel is obligated to communicate with the defendant,

investigate the defendant's claims, and "determine whether there

are additional claims that should be brought forward."                      State v.

Webster, 
187 N.J. 254, 257 (2006).                PCR counsel is required to

"advance all of the legitimate arguments that the record will

support," but need not advance an argument where investigation

does not support a "fair legal argument in support of a particular

claim."     Ibid.     PCR counsel's brief "must advance arguments that

can be made in support of the petition and include defendant's

remaining claims, either by listing them or incorporating them by

reference so that the judge may consider them."                   Ibid.

      Defendant relies on State v. Hicks, 
411 N.J. Super. 370, 374

(App. Div. 2010), where we held that a PCR counsel's performance

was deficient because the record showed PCR counsel failed to

conduct     "an     independent   evaluation       of     defendant's       case        to

determine    whether      there   were    other    grounds      to    attack       [the]

defendant's       conviction."        The     record      showed      PCR    counsel

                                         14                                      A-2215-16T3
demonstrated     a   "fundamental     ignorance    of   the   salient     facts

underpinning [the] defendant's conviction," and our review of the

record led "us to question whether PCR counsel even reviewed the

file."   Ibid.

     Unlike in Hicks, where it was clear PCR counsel failed to

satisfy his obligations, there is nothing in the record suggesting

PCR counsel did not conduct an independent review of the trial

record to formulate the legal arguments supporting defendant's

petition or otherwise failed to satisfy his obligations under Rule

3:22-6(d).     At argument, PCR counsel represented that he spoke

with defendant numerous times about the petition and they decided

to focus on trial counsel's failure to call Hardwed and Reyes as

the basis for the ineffective assistance claim.           Nonetheless, PCR

counsel's brief incorporated all of the claims defendant asserted

in his pro se submissions.      In addition, although defendant argues

that PCR counsel's performance was deficient, he fails to identify

a single meritorious claim supporting his PCR petition that PCR

counsel failed to advance before the PCR court.                 See State v.

Worlock,   
117 N.J.   696,   625    (1990)   ("The    failure   to     raise

unsuccessful     legal   arguments    does   not   constitute    ineffective

assistance of counsel.").




                                      15                                A-2215-16T3
    We have considered all of defendant's remaining contentions

and they are without sufficient merit to warrant discussion in a

written opinion.   R. 2:11-3(e)(2).

    Affirmed.




                               16                        A-2215-16T3