STATE OF NEW JERSEY v. R.S.

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                                NOT FOR PUBLICATION WITHOUT THE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-1076-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

R.S.,

     Defendant-Appellant.
_________________________

                    Submitted December 4, 2018 – Decided January 15, 2019

                    Before Judges Yannotti and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 12-12-
                    1559.

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

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Alexis R. Agre, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from an August 4, 2017 order denying his petition for

post-conviction relief (PCR) following an evidentiary hearing. We affirm.

                                      I.

      In 2001, defendant was arrested based on a reported sexual encounter with

a then-fourteen-year-old victim, K.J. At the time of the alleged encounter

defendant was twenty-nine years old.       During the ensuing investigation,

defendant gave a statement to law enforcement officers and admitted that he had

sexual intercourse and oral sex with K.J. A grand jury indicted defendant for

two counts of second-degree sexual assault,  N.J.S.A. 2C:14-2(c)(4), and one

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

Thereafter, the charges against defendant have been the subject of numerous

proceedings and appeals.

      In October 2002, defendant pled guilty to third-degree endangering the

welfare of a child, and he was sentenced to five years of incarceration to be

served at the Adult Diagnostic Treatment Center. Defendant appealed that

sentence, but we affirmed. State v. [R.S.], No. A-5762-03 (App. Div. Dec. 17,

2004).

      Following the completion of his prison sentence, defendant was civilly

committed under the Sexually Violent Predator Act (SVPA), N.J.S.A.


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30:4-27.24 to -27.38.    Defendant appealed that civil commitment, but we

affirmed. In re Civil Commitment of R.S., No. A-4609-06 (App. Div. Dec. 12,

2008). The Supreme Court denied certification.  198 N.J. 317 (2009).1

      In February 2007, defendant filed a petition for PCR, arguing that he did

not knowingly and voluntarily plead guilty because he was not advised that his

conviction could subject him to the potential of lifetime civil commitment under

the SVPA.    The PCR court denied that petition, but we remanded for an

evidentiary hearing. State v. R.S., No. A-0161-09 (App. Div. Apr. 1, 2011).

Following the evidentiary hearing, we again reviewed the matter and held that

defendant was entitled to withdraw his guilty plea because he had not been

advised of the potential for indefinite civil commitment. State v. R.S., No. A-

0161-09 (App. Div. July 16, 2012).

      Thereafter, in December 2012, a grand jury indicted defendant on three

counts of second-degree sexual assault against K.J., and one count of third-

degree endangering the welfare of a child. Defendant filed a motion to suppress

the statement he had given in 2001. The trial court conducted an evidentiary

hearing on the motion to suppress.


1
 Defendant also appealed a subsequent order continuing his civil commitment,
which we also affirmed. In re Civil Commitment of R.S., No. A-2174-12 (App.
Div. Aug. 7, 2014).
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       At that hearing, three witnesses testified: one of the detectives who

interviewed defendant in 2001; Dr. James Reynolds, a psychiatrist who assessed

defendant's intellectual capacity and opined about his ability to understand and

appreciate the rights he waived; and defendant. The court also listened to

defendant's audio-recorded statement and reviewed a Miranda2 warnings card

defendant had signed. The court then found that defendant had knowingly,

voluntarily, and "competently" waived his Miranda rights and denied the motion

to suppress his statement.

       In 2013, the matter proceeded to trial. As part of its evidence, the State

played the audio-recording of defendant's statement given in 2001. Defendant

elected not to testify at trial and he did not call any witnesses. Accordingly,

Dr. Reynolds did not testify at trial. After hearing all of the evidence, a jury

convicted defendant of three counts of second-degree sexual assault and one

count of third-degree endangering the welfare of a child.

       Thereafter, the court sentenced defendant to time already served because

defendant had served more than ten years in prison, which was the maximum

sentence the court could have imposed for a second-degree conviction. In that

regard, the sentencing court explained that it was running the sentences for all


2
    Miranda v. Arizona,  384 U.S. 436 (1966).
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of defendant's convictions concurrent to each other.        In the judgment of

conviction, the court also stated that "[d]efendant is and shall remain civilly

committed."

      Defendant filed a direct appeal of his convictions resulting from the jury

trial. On that appeal, defendant made only one argument. He contended that his

motion to suppress his statement should have been granted because he did not

knowingly, voluntarily, and intelligently waive his right to remain silent. State

v. R.S., No. A-3734-13 (App. Div. Nov. 30, 2015) (slip op. at 4), certif. denied,

 224 N.J. 282 (2016). We rejected that argument and affirmed. Ibid.

      In April 2016, defendant filed the petition for PCR that is the subject of

this appeal.   He was assigned counsel and granted an evidentiary hearing.

Before the PCR court, defendant contended that his trial counsel had been

ineffective in a number of ways, including in (1) failing to call Dr. Reynolds to

testify at trial; (2) not objecting to the jury not being wholly constituted when

conducting deliberations; and (3) not timely objecting to the makeup of the jury.

Defendant also argued that his sentence was illegal because he was sentenced to

"remain civilly committed."

      At the PCR evidentiary hearing, Dr. Reynolds and defendant's trial

counsel testified. Trial counsel explained that she had made a strategic decision


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not to call Dr. Reynolds because Dr. Reynolds could not definitively state that

defendant lacked the intellectual capacity to give a voluntary waiver of his

rights.    Accordingly, trial counsel explained that she believed that

Dr. Reynolds's testimony would have done more harm than good.

      The PCR court denied defendant's petition and issued a written opinion

and order on August 4, 2017. The court found that trial counsel was not

ineffective in not calling Dr. Reynolds as a witness at trial because that was a

valid trial strategy. In that regard, the court reasoned that Dr. Reynolds was

unable to provide an expert opinion on whether defendant understood the

Miranda warnings and that was a valid reason for trial counsel not to call him.

      The PCR court also reasoned that trial counsel's failure to object to the

jury not being wholly constituted and to the makeup of the jury were not

appropriate issues to be raised on a PCR petition and should have been raised

on direct appeal. Furthermore, the PCR court determined that defendant could

not raise an argument about an illegal sentence on a PCR petition and that issue

needed to be raised as a separate motion. Finally, the PCR court found that all

of defendant's remaining arguments lacked a factual basis, or were based on

unsupported contentions, and, therefore, failed to make a prima facie showing

of ineffective assistance of counsel.


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                                      II.

      On this appeal, defendant challenges the denial of his petition for PCR

and makes three arguments. He articulates his arguments as follows:

            POINT I – THE TRIAL COURT ERRED IN
            DENYING DEFENDANT'S APPLICATION FOR
            POST-CONVICTION RELIEF BECAUSE DEFENSE
            COUNSEL'S FAILURE TO CALL DR. REYNOLDS
            AS A WITNESS IN THE TRIAL WAS NOT TRIAL
            STRATEGY, IT WAS INEFFECTIVE ASSISTANCE
            OF COUNSEL.

            POINT II – THE TRIAL COURT ERRED IN ITS
            DETERMINATION THAT THE TRIAL COUNSEL'S
            FAILURE TO OBJECT WHEN THE JURY WAS NOT
            WHOLLY     CONSTITUTED   DURING    JURY
            DELIBERATIONS AND FAILURE TO OBJECT TO
            THE MAKE-UP OF THE JURY COULD NOT BE
            ADDRESSED IN PETITIONS FOR POST-
            CONVICTION RELIEF.

            POINT III – THE TRIAL COURT ERRED IN ITS
            DETERMINATION THAT POST-CONVICTION
            RELIEF WAS NOT THE APPROPRIATE FORUM
            TO CHALLENGE A JUDGMENT OF CONVICTION
            TO CORRECT AN ILLEGAL SENTENCE.

We are not persuaded by any of these arguments and we affirm.

      We use a deferential standard of review on an appeal of a denial of a PCR

petition following an evidentiary hearing. State v. Pierre,  223 N.J. 560, 576

(2015). Accordingly, the factual findings made by a PCR court following an

evidentiary hearing will be accepted if they are based on "sufficient credible

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evidence in the record." Ibid. (quoting State v. Nash,  212 N.J. 518, 540 (2013)).

Legal conclusions are reviewed de novo. Id. at 576-77 (quoting Nash,  212 N.J.

at 540-41).

      A PCR petition is cognizable if based on "[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." R. 3:22-

2(a). A defendant may be deprived of his or her constitutional right to counsel

if representation was inadequate. See U.S. Const. amend. VI; N.J. Const. art. I,

¶ 10. To establish a claim of ineffective assistance of counsel, a defendant must

satisfy the two-part test set forth in Strickland v. Washington,  466 U.S. 668, 687

(1984), and adopted by our Supreme Court in State v. Fritz,  105 N.J. 42, 58

(1987).

      Under that test, a defendant must prove (1) "counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment," and (2) "the deficient performance

prejudiced the defense." Strickland,  466 U.S.  at 687; see also Fritz,  105 N.J. at
 58. A defendant must make those showings by presenting more than "bald

assertions" that he or she was denied the effective assistance of counsel. State

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


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      As to the first prong, "[j]udicial scrutiny of counsel's performance must

be highly deferential." Strickland,  466 U.S.  at 689.

             A fair assessment of attorney performance requires that
             every effort be made to eliminate the distorting effects
             of hindsight, to reconstruct the circumstances of
             counsel's challenged conduct, and to evaluate the
             conduct from counsel's perspective at the time.
             Because of the difficulties inherent in making the
             evaluation, a court must indulge a strong presumption
             that counsel's conduct falls within the wide range of
             reasonable professional assistance[.]

             [Ibid.]

Furthermore, "strategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengable[.]" Id. at 690.

"[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.'"

State v. Arthur,  184 N.J. 307, 321 (2005) (citations omitted) (quoting Strickland,

 466 U.S.  at 689, 693).

      As to the second prong, "[a]n error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment." Strickland,  466 U.S.  at
 691. Thus, to be successful on the second prong, defendant must show a

reasonable probability that, but for counsel's errors, the outcome of his trial


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would have been different; "[a] reasonable probability is a probability sufficient

to undermine confidence in the outcome."         Id. at 694.    That requirement,

moreover, is "an exacting standard." State v. Allegro,  193 N.J. 352, 367 (2008).

      Guided by these legal standards, we turn to defendant's arguments.

Defendant first argues that his trial counsel was ineffective in not calling

Dr. Reynolds to testify at trial. After hearing testimony from both Dr. Reynolds

and defendant's trial counsel, the PCR court found that trial counsel had made a

valid strategic decision not to call Dr. Reynolds.        That finding is amply

supported by substantial, credible evidence presented at the evidentiary hearing.

      Second, defendant argues that his trial counsel was ineffective in not

objecting when the jury was not wholly constituted during deliberations and in

failing to make a timely objection to the makeup of the jury. The PCR court

held that those issues should have been raised on direct appeal and, therefore,

they were procedurally barred.        We agree, but we also point out that

substantively, defendant's arguments lack merit.

      A claim for PCR is typically barred where the ground for relief was not

raised in "the proceedings resulting in the conviction, or . . . in any appeal taken

in any such proceedings." R. 3:22-4(a). If a court finds that the ground for relief

"could not reasonably have been raised in any prior proceeding," that


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                                        10
"enforcement of the bar . . . would result in fundamental injustice," or that a new

rule of state or federal constitutional law requires relief, then a defendant's claim

may be cognizable. R. 3:22-4(a)(1) to (3); see also Nash,  212 N.J. at 546-47

(describing the circumstances under which the bar will not be enforced by a

court).

      Defendant alleges that "the actual time that the jury deliberated as a whole

constituted jury is unclear from the record." He then argues that there was only

a short period of time during which the jury deliberated. Finally, he contends

that the jury did not take sufficient time to deliberate as a wholly constituted

jury. That contention concerning the time the jury deliberated could have been

raised on a direct appeal. Asserting that trial counsel was ineffective in failing

to object does not make it a new argument that can now be raised as a ground

for PCR.    Moreover, even considering the issue within the framework of

Strickland, the contention about the jury deliberation is based on speculation

and constitutes nothing more than a "bald assertion" that is not supported by the

record. See Cummings,  321 N.J. Super. at 170.

      Defendant also argues that his trial counsel was ineffective in not making

a timely objection to the makeup of the jury. Defendant was Caucasian and he

argues that the jury was made up entirely of people who were African-American,


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except for the alternates. Again, the argument about the makeup of the jury

could have been raised on direct appeal, but was not. Furthermore, the only

evidence in the record concerning the racial makeup of the jury suggests that

four out of the twelve jurors were African-American. Therefore, the record

demonstrates that defendant's attorney was not ineffective because there was no

legitimate basis to challenge the composition of the jury.

      Finally, defendant argues that his sentence was illegal because he was

sentenced to continue his civil commitment. An illegal sentence may be grounds

for PCR where it "exceeds the maximum penalty provided in the Code for a

particular offense" or it is "not imposed in accordance with law." State v.

Acevedo,  205 N.J. 40, 45 (2011) (quoting State v. Murray,  162 N.J. 240, 247

(2000)); see also R. 3:22-2(c).

      Here, defendant's claim that his sentence is illegal lacks merit. Defendant

was civilly committed pursuant to the SVPA before his criminal trial. After his

criminal trial, the court sentenced defendant to time served and ordered that

defendant's civil commitment would continue. Defendant contends that that

sentence could result in an indefinite civil commitment. That contention is

without merit. There is no indication in the record that the sentencing court's




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intent was to extend defendant's civil commitment beyond what the existing civil

commitment order contemplated.

      Even if defendant's judgment of conviction was interpreted to be an order

continuing defendant's civil commitment, that commitment could not be

indefinite. Under the SVPA, defendant is entitled to annual review of his civil

commitment, see  N.J.S.A. 30:4-27.35, and nothing in his judgment of conviction

can be construed to prevent that annual review. Thus, defendant's sentence

returning him to civil commitment until his next review is not illegal.

      Affirmed.




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