STATE OF NEW JERSEY v. FRANK P. RENDFREY

NOT FOR PUBLICATION WITHOUT THE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-5982-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FRANK P. RENDFREY,

          Defendant-Appellant.


                    Submitted February 25, 2020 – Decided March 18, 2020

                    Before Judges Hoffman and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 09-09-
                    1481.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Craig S. Leeds, Designated Counsel, on the
                    brief).

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (David Michael
                    Liston, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Frank Rendfrey appeals from an April 13, 2018 order denying

his petition for post-conviction relief (PCR).

      Defendant raises the following points of argument in his counseled brief:

            POINT I

            DEFENDANT WAS DENIED THE EFFECTIVE
            ASSISTANCE    OF   TRIAL   COUNSEL    IN
            VIOLATION OF THE UNITED STATES AND [THE]
            NEW JERSEY CONSTITUTIONS AND THE LOWER
            COURT ERRED IN CONCLUDING OTHERWISE

            POINT II

            THE CUMULATIVE EFFECT OF THE ERRORS
            COMPLAINED OF RENDERED THE TRIAL
            UNFAIR

            POINT III

            DEFENDANT WAS DENIED THE EFFECTIVE
            ASSISTANCE OF APPELLATE COUNSEL

            POINT IV

            THE LOWER COURT ERRED IN DENYING
            DEFENDANT'S PETITION FOR [PCR] WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING

      In a pro se supplemental brief, without point headings, defendant argues

that trial counsel was ineffective because counsel: 1) failed to raise the issue of


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the victim's dogs to discredit an eyewitness's testimony; 2) failed to explore the

victim's mental health as a defense; 3) disallowed defendant from testifying in

his own defense; and 4) he lacked the competence to handle the technology

required to put forth an effective defense. He also raised two arguments that are

identical to those in the counseled brief.

      After thoroughly reviewing the record, we conclude that all of defendant's

arguments are without merit and, except as briefly addressed below, they do not

warrant discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons

stated by the PCR judge in his oral decision of April 13, 2018. We add these

comments.

      Defendant was convicted of third-degree theft, contrary to  N.J.S.A.

2C:20-3; first-degree murder, contrary to  N.J.S.A. 2C:11-3(a)(1) to (2); third-

degree hindering own apprehension, contrary to  N.J.S.A. 2C:29-3(b); and first-

degree witness tampering, contrary to  N.J.S.A. 2C:28-5(a)(2). He was also

found guilty of criminal trespass, contrary to  N.J.S.A. 2C:18-3, a lesser-included

offense of burglary. He was found eligible for an extended term sentence and

sentenced to a prison term of life plus fifteen years, with thirty-five years of

parole ineligibility.




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      We affirmed defendant's convictions on direct appeal. State v. Rendfrey,

No. A-3897-11 (App. Div. Nov. 20, 2013). The matter was remanded for

resentencing under the No Early Release Act,  N.J.S.A. 2C:43-7.2. On remand,

defendant was resentenced on the murder count to life imprisonment with 63.75

years of parole ineligibility.

      The evidence was discussed in detail and need not be repeated here. In

summary, defendant strangled his girlfriend and staged her death as a heroin

overdose, putting a rubber band around her arm, a syringe in her arm and placing

empty heroin packets on the floor. He later told the mother of his child he had

strangled the victim in self-defense; he told police he was in New York at the

time of these events.

      In his PCR brief, defendant raised eighteen grounds on which he asserted

trial counsel was ineffective.      He also contended appellate counsel was

ineffective for failing to raise additional issues on appeal.

      The PCR court addressed and rejected each of the arguments in its oral

decision. He noted that some of the arguments of ineffective assistance were

dispelled by the evidence of counsel's actions in the record, some were bald

assertions with no supporting certifications, some were already raised and

decided on direct appeal, Rule 3:22-5, and others were barred because they could


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have been raised on direct appeal, Rule 3:22-4. The court also found defendant's

contentions regarding appellate counsel meritless as counsel raised four

arguments on appeal, evidencing he made a "learned," "strategic decision" to

omit the other claims.

      The PCR court's analysis of the raised claims is supported by credible

evidence. Many of the issues were procedurally barred as they could have been

raised on direct appeal. "Issues that could and should have been raised on direct

appeal from the defendant's conviction are barred by Rule 3:22-4(a) unless the

exceptions to the Rule have been established." State v. Reevey,  417 N.J. Super.
 134, 148 (App. Div. 2010) (citation omitted). "Where the exceptions do not

apply, consideration of such issues is properly barred." Ibid. (citations omitted).

Defendant has not asserted any applicable exceptions.

      The remainder of the assertions were not supported by certifications or

affidavits. To establish a prima facie case of ineffective assistance of counsel,

a defendant must present legally competent evidence, rather than "bald

assertions . . . ." See State v. Cummings,  321 N.J. Super. 154, 170 (App. Div.

1999). Defendant did not meet that standard here.

      As stated, defendant presented a pro se supplemental brief raising an

additional four arguments. The PCR court did not explicitly address those


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contentions. We are mindful that under Rule 3:22-11, a PCR court must "state

separately its findings of fact and conclusions of law" regarding the arguments

set forth in a PCR petition. Here, the PCR court stated he had "read all the

papers" but he did not refer to the supplemental arguments. Nevertheless, we

are satisfied after reviewing the pro se arguments in light of the record and

applicable principles of law, that a remand is unnecessary.

       The contention regarding the victim's dogs is intertwined with the

argument the PCR court considered and rejected in its analysis regarding the

cross-examination of a particular eyewitness. The remaining contentions are all

bald assertions, without merit, and unsupported by any certification or affidavit.

       Defendant has not presented a prima facie case as to either prong of the

Strickland1 test. Therefore, he was not entitled to an evidentiary hearing on his

PCR petition.

       Affirmed.




1
    Strickland v. Washington,  466 U.S. 668, 687 (1984).


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