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                        NOT FOR PUBLICATION WITHOUT THE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-5542-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

A.R.,

     Defendant-Appellant.
__________________________

              Submitted December 14, 2017 – Decided February 1, 2018

              Before Judges Simonelli and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              08-05-1104.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (David A. Gies, Designated
              Counsel, on the briefs).

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

      Defendant A.R. appeals from the April 1, 2016 Law Division

order, which denied his petition for post-conviction relief (PCR)

without an evidentiary hearing.                 We affirm.

      The underlying facts of this case are set forth in State v.

A.R., 
213 N.J. 542 (2013), and incorporated herein.                 The following

facts are pertinent to our review.

      Following a jury trial, defendant was convicted of first-

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

degree 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 charges stemmed from

defendant's sexual assault of his nine-year old great niece, T.P.

The   State   relied      primarily    on       defendant's   and   T.P.'s    video-

recorded statements, which were admitted in evidence and played

at trial.     In his statement, defendant admitted to engaging in

sexual conduct with T.P.

      Defendant testified at trial and acknowledged making the

statement.     However, he denied the allegations and asserted his

confession was false and that he simply repeated everything a

detective     said   to    him.       During       summation,   defense      counsel

encouraged the jury to review defendant's video-recorded statement

and emphasized that defendant was tired and acted "like somebody

who's beaten down."           Defense counsel also questioned whether

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defendant was trying to divert the attention of the investigators

from the allegations as suggested by the detective in his trial

testimony and urged the jury to find that defendant was not

thinking clearly during the interview.        Further, defense counsel

did not object when the jury requested to review the video-recorded

statements in the jury room during deliberations.        In response to

the trial court's inquiry regarding the use of the video player

in the jury room, defense counsel stated, "I consider it . . . the

equivalent of statement[s] on paper [that] are marked into evidence

and brought back there.      They might be able to look at that."

     We determined that the jury's unfettered access to both video-

recorded   statements   during    deliberation    outside      defendant's

presence violated the rule announced in State v. Burr, 
195 N.J.
 119 (2008).    On that basis, we reversed defendant's conviction.

State v. A.R., No. A-3405-08 (App. Div. Aug. 10, 2011).

     The   Supreme   Court   reversed   our   judgment   and    reinstated

defendant's conviction.       A.R., 
213 N.J. at 563-64.         The Court

determined the procedure utilized in this case did not comport

with the rule announced in Burr and State v. Michaels, 
264 N.J.

Super. 579 (App. Div. 1993), but held "[t]he trial error was

plainly invited and does not warrant reversal of defendant's

conviction."   Id. at 561.     The Court found that defense counsel

utilized defendant's video-recorded statement "as part of her

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defense strategy by encouraging the jury to thoroughly consider

it   in   its   deliberations[;]"   "did   not   object   to   the    jury's

unfettered access" to both video-recorded statements in the jury

room; and "provided a rationale for support of such access."              Id.

at 563.    The Court held:

            In applying the invited-error doctrine, we
            must acknowledge the strength of the evidence
            adduced by the State in support of defendant's
            conviction and the nature of the error. Here,
            the error did not constitute structural error
            and we conclude it did not compromise the
            fairness of the trial.     Instead, the error
            related to the procedural protections imposed
            in Burr and, as such, does not constitute a
            'fundamental miscarriage of justice.' In the
            end, the evidence of defendant's guilt and the
            nature of the error invited by defendant
            require reversal of the judgment of the
            Appellate Division and reinstatement of the
            conviction.

            [Id. at 563 (quoting    N.J. Div. of Youth &
            Family Servs. v. M.C. III, 
201 N.J. 328, 342,
            (2010)).]

      Defendant filed a PCR petition, arguing, in relevant part,

that trial counsel rendered ineffective assistance by failing to

object to, and discuss with him, the jury's request for unfettered

access to the video-recorded statements during deliberations.               In

denying the petition, the PCR judge relied on the Court's findings

in A.R. and concluded defendant failed to prove the two prongs of

Strickland v. Washington, 
466 U.S. 668 (1984) – that counsel's

performance was deficient and the deficient performance prejudiced

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the defense.      The PCR judge found the Court had determined that

the jury's unfettered access to the video-recorded statements,

while procedurally flawed, was part of defense counsel's trial

strategy, and counsel's trial strategy, while invited error, did

not deprive defendant of a fair trial and would not have changed

the outcome of the proceedings.           On appeal, defendant reiterates

the arguments made to the PCR judge.

       The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing.          State v. Cummings, 
321 N.J.

Super. 154, 170 (App. Div. 1999).            Rather, trial courts should

grant evidentiary hearings and make a determination on the merits

only   if   the   defendant   has   presented   a   prima   facie   claim   of

ineffective assistance, material issues of disputed facts lie

outside the record, and resolution of the issues necessitates a

hearing. R. 3:22-10(b); State v. Porter, 
216 N.J. 343, 355 (2013).

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).

       To establish a prima facie claim of ineffective assistance

of counsel, the

            defendant must satisfy two prongs. First, he
            must demonstrate that counsel made errors "so
            serious that counsel was not functioning as
            the 'counsel' guaranteed the defendant by the
            Sixth      Amendment."     An      attorney's

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          representation is deficient when it "[falls]
          below     an     objective    standard    of
          reasonableness."

               Second, a defendant "must show that the
          deficient    performance    prejudiced    the
          defense." A defendant will be prejudiced when
          counsel's errors are sufficiently serious to
          deny him a "fair trial."       The prejudice
          standard is met if there is "a reasonable
          probability    that,   but   for    counsel's
          unprofessional errors, the result of the
          proceeding would have been different."      A
          "reasonable probability" simply means a
          "probability    sufficient    to    undermine
          confidence in the outcome" of the proceeding.

          [State v. O'Neil, 
219 N.J. 598, 611 (2014)
          (quoting Strickland, 
466 U.S.  at 687-88,
          694).]

"[I]n order to establish a prima facie claim, [the defendant] must

do more than make bald assertions that he was denied the effective

assistance   of   counsel.    He   must   allege   facts   sufficient    to

demonstrate counsel's alleged substandard performance." Cummings,


321 N.J. Super. at 170.        The defendant must establish, by a

preponderance of the credible evidence, that he is entitled to the

required relief.     State v. Nash, 
212 N.J. 518, 541 (2013).

     "[A]n otherwise valid conviction will not be upset because

of ordinary dissatisfaction with counsel's exercise of judgment

in his conduct of the trial.       To warrant reversal, counsel must

have been so inadequate as to render the trial a farce or mockery

of justice."      State v. Coruzzi, 
189 N.J. Super. 273, 320 (App.


                                    6                             A-5542-15T
4 Div. 1993) (citations omitted).            Simple mistakes, bad strategy,

or bad tactics "do not amount to ineffective assistance of counsel

unless, taken as a whole, the trial was a mockery of justice."

State v. Bonet, 
132 N.J. Super. 186, 191 (App. Div. 1975). "Merely

because a trial strategy fails does not mean that counsel was

ineffective."     State v. Bey, 
161 N.J. 233, 251 (1999) (citation

omitted).     "[A] court must indulge a strong presumption that

counsel's    conduct   falls    within     the    wide   range    of   reasonable

professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action

'might be considered sound trial strategy.'"              State v. Sheika, 
337 N.J. Super. 228, 241 (App. Div. 2001) (quoting Strickland, 
466 U.S. at 689).

     Here, the defendant failed to present a prima facie claim of

ineffective    assistance      of   counsel      to   warrant    an    evidentiary

hearing.     The Court has established that defense counsel's trial

strategy, while invited error, did not compromise the fairness of

the trial or constitute a fundamental miscarriage-of-justice.

Accordingly, defendant cannot show that defense counsel's error

was so serious as to deny him a fair trial, or that, but for

counsel's    error,    the   outcome     of   the     trial   would     have   been

different.

     Affirmed.

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