STATE OF NEW JERSEY v. W.H.G.

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                        NOT FOR PUBLICATION WITHOUT THE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-3131-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

W.H.G.,

     Defendant-Appellant.
_____________________________________

              Submitted November 1, 2017 – Decided June 29, 2018

              Before Judges Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 06-
              04-0337.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Monique D. Moyse, Designated
              Counsel, on the brief).

              Thomas K. Isenhour, Acting Prosecutor of Union
              County, attorney for respondent (Stephen
              William   Bondi,   Special   Deputy   Attorney
              General/Acting Assistant Prosecutor, on the
              brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
      Defendant W.H.G. appeals the January 22, 2016 denial of his

petition for post-conviction relief (PCR).               We affirm.

                                      I

      In 2011, defendant was convicted by a jury of two counts of

first-degree aggravated sexual assault, 
N.J.S.A. 2C:14-2(a)(1);

two counts of second-degree sexual assault, 
N.J.S.A. 2C:14-2(b);

and two counts of endangering the welfare of a child, 
N.J.S.A.

2C:24-4(a).      At     sentencing,   the      second-degree   sexual      assault

counts were merged with the first-degree aggravated sexual assault

counts.      On the aggravated sexual assault counts, defendant was

sentenced to two eighteen-year terms of imprisonment, to be served

consecutively,     with    an   eighty-five       percent   period    of    parole

ineligibility and five years of parole supervision, subject to the

No   Early    Release     Act   (NERA),       
N.J.S.A.   2C:43-7.2.        On   the

endangering counts, defendant was sentenced to two ten-year terms

to be served concurrently.

      We affirmed the conviction and sentence in an unpublished

opinion, but remanded for the determination of penalties under the

Sex Crime Violent Treatment Fund, 
N.J.S.A. 2C:14-10.                    State v.

W.H.G., No. A-4238-11 (App. Div. Oct. 10, 2014) (slip op. at 27),

certif. denied, 
221 N.J. 285 (2015).

      We derived the salient facts from our previous opinion.



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       Defendant's wife (Greta)1 had two children from a previous

relationship.     Lori was seven and her sister, Mary, was five when

Lori   told   a   classmate   at   school,   K.V.,   that   defendant,   her

stepfather, had sexually molested her.         K.V. told her mother, who

then told the principal of the school, who notified the Division

of Youth and Family Services (Division) and the local police.

       "Both girls initially denied that they were being sexually

molested by defendant or anyone else.                Despite these verbal

assurances, [the Division worker] note[d] that the children seemed

guarded . . . [and] recommended in her report that the girls be

re-interviewed at a future date 'out of the home and outside the

presence of the stepfather.'"        W.H.G., slip op. at 5-6.     When the

girls were interviewed, "Lori told her that defendant sexually

abused her and her sister when they were at home alone with him

when their mother was at work."              Id. at 6.      Then Mary also

"described in graphic details of sexual activity that is ordinarily

beyond the scope of knowledge associated with an eight-year-old

girl."   Id. at 7.    At the prosecutor's office on December 1, 2015,

Lori at first denied any sexual activity, but when confronted with




1
  We use the same fictitious names here for defendant's wife and
her two children that we used in our 2014 opinion to maintain
their privacy. See State v. W.H.G., No. A-4238-11 (App. Div.
Oct 10, 2014).

                                      3                              A-3131-15T3
a statement her sister had made, "finally admitted the full scope

of the molestation in graphically disturbing details."       Id. at 10.

Mary's description was "far more graphic and direct."         Ibid.    As

we said in our 2014 opinion, "[t]his child of tender years provided

the detective who interviewed her devastatingly disturbing details

of the sexual assault committed against her by defendant."        Ibid.

        "On December 15, 2005, both girls recanted their statements

they had given to law enforcement authorities two weeks earlier

accusing defendant of having sexual relations with them."        Id. at

14.     Defendant went missing after December 1, 2005, until he was

apprehended in Arizona in November 2009.

      At defendant's jury trial in 2011, the State called fourteen

witnesses, "including Lori and Mary, who were then sixteen and

fourteen years old respectively, their mother, Greta, a number of

law   enforcement   officers,   [Division]   caseworkers,    other    lay

persons with relevant knowledge of the event and two expert

witnesses in the field of child sexual abuse."      Ibid.     The girls

"reaffirmed at trial the recantations" they had given earlier.

Ibid.    Lori was confronted with a journal she had kept at school

"in which she described the details of what defendant had allegedly

done to her when she was ten years old."         Ibid.      The State's

psychological expert, testified about her examinations of the



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girls.   Another State psychological expert, testified about child

sexual   abuse   accommodation    syndrome       (CSAAS),       but    on   cross-

examination, defense counsel established that psychologists do not

"consider CSAAS as being determinative of whether abuse occurred."

Id. at 20.    Defendant did not call any witnesses on his behalf.

Defendant was convicted as we have described.

     Defendant filed a pro se petition for post judgment relief

in 2015 that was supplemented by his appointed counsel.                 Defendant

contended he was denied the effective assistance of counsel at his

trial and by counsel who handled his appeal.                 He alleged that he

was entitled to an evidentiary hearing because his trial counsel

failed to conduct an investigation prior to trial or to call

favorable    witnesses.      Defendant     claimed      he    did     not   receive

discovery nor discuss trial strategy with his attorneys.                          His

attorneys did not conduct an effective cross-examination of the

State's witnesses at trial or call favorable witnesses. He claimed

they did not file any pre-trial motions.          Defendant contended that

exculpatory evidence was not presented and that his wife was misled

by the police regarding the search of their home.                He claimed his

attorneys    lacked   an   interest   in   his   case    and    "there      was   an

additional lack of serious understanding of the English language




                                      5                                      A-3131-15T3
by the defendant."    Defendant asserted that his appellate counsel

failed to raise any of these claims.

      Defendant's PCR petition was denied in January 2016.            In

rejecting his claims that counsel failed to investigate the case,

the   court   noted   that   defendant   "has   not   submitted      any

certifications or affidavits from other expert witnesses and has

not made any proffer with respect to the testimony."      He did not

name "one favorable witness that trial counsel could have called,

what said witness would have testified to, nor how the testimony

would have altered the outcome of the trial."

      The court rejected defendant's claims about lack of discovery

finding that he did not "detail[] which items he did not receive

and how receipt of the undisclosed items would have altered the

outcome of the trial." Without this, the court could not determine

how this would have affected the case.    A pretrial memorandum had

stated that all pretrial discovery was completed.

      As for defendant's claims about certain videotaped evidence,

the court found that they were made available to him "during . .

. [the] trial and the pretrial hearing."    Relating to defendant's

claim that his attorneys should have filed suppression motions,

defendant did not point out what evidence supported his claim.

The court rejected defendant's claim that counsel failed to present



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exculpatory   evidence   because   defendant   did   not   describe     what

evidence he was referencing.        The court found that his trial

counsel's performance was not "objectively deficient" because he

did not "offer[] any specific evidence of deficiency."                Also,

defendant did not show how he was prejudiced because "no evidence

[was] presented to this [c]ourt that the outcome would have changed

by counsel doing anything that [p]etitioner alleges that counsel

failed to do."    The court rejected defendant's claims about his

appellate counsel for the same reasons.

     In his appeal from the denial of his PCR petition, defendant

raises the following issues:

          [W.H.G.] IS ENTITLED TO AN EVIDENTIARY HEARING
          ON HIS CLAIM THAT HIS ATTORNEYS RENDERED
          INEFFECTIVE ASSISTANCE OF COUNSEL.

     In his pro se brief, defendant also alleges that:

          Legal Argument I

          Appellant's     Trial    Counsel     Rendered
          Ineffective/Remedial Ineffective Assistance
          Of Counsel For Gravely Failing To Investigate
          And Gravely Failing To Adequately Consulting
          [sic] With Appellant.

          Legal Argument II

          It Was Prejudicial Error To Deny Appellant His
          Post-Conviction Relief Of An Evidentiary
          Hearing, Pursuant to R. 3:22-10.

          Legal Argument III



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            The    Prosecutorial   Misconduct    Deprived
            Appellant's [sic] A Fair Jury Trial With The
            Bolstering Of The Credibility For The State's
            Witnesses.

            Legal Argument IV

            Appellant   Submit   That  The  Lower   Court
            Dismissed   The   Fundamental  Value   Of   A
            Witness/Witnesses Recantation From Initial
            Complaint/Statements And This Deprived A Fair
            Jury Trial.

     We find no merit in any of these arguments.

                                         II

     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 an ineffective assistance of counsel claim, defendant

must meet a two-prong test by establishing 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

errors, the result of the proceeding would have been different."

Strickland, 
466 U.S.  at 694.


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      "[W]hen a petitioner claims his trial attorney inadequately

investigated    his    case,   he    must    assert   the   facts   that   an

investigation would have revealed, supported by affidavits or

certifications based upon the personal knowledge of the affiant

or the person making the certification."              State v. Porter, 
216 N.J. 343, 353 (2013) (alteration in original) (quoting State v.

Cummings, 
321 N.J. Super. 154, 170 (App. Div. 1999)).

      Here, although he claimed his attorneys failed to investigate

the   case,   find    favorable     witnesses,   or   present   exculpatory

information, we agree with the PCR judge that these claims lacked

any specific information.           Without that information, the court

could not determine what should have been investigated or how it

would have changed the outcome of the trial.

       Defendant does not say what discovery he did not receive.

He does not say what pre-trial motions should have been filed that

were not.      His allegations are supported only by self-serving

assertions and bare allegations.            See Cummings, 
321 N.J. Super.

at 170 ("[A] petitioner must do more than make bald assertions

that he was denied the effective assistance of counsel.").

      He claims his attorneys did not consult with him but, he is

not specific about what was not discussed, when this occurred, or

how this would have made a difference.            In fact, the transcript



                                       9                              A-3131-15T3
from May 2011, indicates defendant's counsel spoke with him about

whether he still wanted to go to trial "and his position remain[ed]

the same, that he still wishe[d] to go to trial, [and did] not

want to entertain any sort of plea negotiations."      Defendant was

"maintaining his innocence and that he wishe[d] to proceed to

trial."

     Defendant contends he should have had an interpreter but

there was no indication that his counsel had difficulty speaking

with him as early as May 2011.    He has submitted pro se pleadings

to the court without any showing that they were translated.

     Defendant contends in his pro se brief that his trial counsel

should have moved for a mistrial because the State bolstered its

witnesses at trial.   He cites to two passages from the State's

summation to support his claim.    However, we addressed the nature

of the prosecutor's summation in the direct appeal where defendant

"claim[ed] certain parts of the prosecutor's summation were highly

improper and deprived him of his constitutional right to a fair

trial."   W.G.H., slip op. at 2-3.     Although we applied the plain

error standard in rejecting his claims, we also said that "we are

thoroughly convinced that defendant's argument lacks sufficient

merit to warrant further discussion in a written opinion."       Id.

at 25 (citing to Rule 2:11-3(e)(2)).         Defendant now alleges



                                  10                          A-3131-15T3
prosecutorial    misconduct   but   failed   to   provide   any   factual

allegations or point to any areas of the trial transcript where

this misconduct occurred.

     His claim on appeal that the "lower court dismissed the

fundamental value of a witness/witnesses recantations," depriving

him of a fair trial, lacks merit because he was convicted by a

jury, not the judge.

     We agree with the PCR judge that defendant failed to show how

any of the issues he raised in his petition would have changed the

outcome of the trial and thus, he failed to meet the prejudice

prong of Stickland.

     Defendant contends his appeals counsel should have raised all

the arguments he raises here, but because they lack merit, there

was no error by counsel in not raising them.

     We are satisfied 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.         Accordingly, the PCR

court correctly concluded that an evidentiary hearing was not

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

     Any other appellate arguments raised by defendant are without

sufficient merit to warrant discussion.       R. 2:11-3(e)(2).

     Affirmed.



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