STATE OF NEW JERSEY v. R.T.K

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0725-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

R.T.K.,

Defendant-Appellant.
_______________________

Submitted January 20, 2021 – Decided March 15, 2021

Before Judges Gilson and Gummer.

On appeal from the Superior Court of New Jersey, Law
Division, Salem County, Indictment No. 13-08-0451.

Joseph E. Krakora, Public Defender, attorney for
appellant (John J. Bannan, Designated Counsel, on the
brief).

John T. Lenahan, Salem County Prosecutor, attorney
for respondent (David Galemba, Assistant Prosecutor,
of counsel and on the brief).

PER CURIAM
Defendant appeals from a June 6, 2019 order denying his petition for post-

conviction relief (PCR) after oral argument but without an evidentiary hearing.

He contends that his trial counsel was ineffective and that, at a minimum, he

was entitled to an evidentiary hearing. We disagree and affirm.

Defendant was charged with repeatedly sexually assaulting his daughter

over a four-year period when the daughter was between the ages of seven and

eleven. A jury convicted defendant of two counts of first-degree aggravated

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

2C:14-2(b); and second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a).

At trial, the State presented evidence from numerous witnesses, including

the victim and a detective who had interviewed the victim. The detective also

collected carpet samples from the location where the victim claimed that

defendant had forced her to perform oral sex and then spit his semen. The State

had also presented expert testimony concerning the Child Sexual Abuse

Accommodation Syndrome (CSAAS). Defendant elected not to testify and

called no witnesses.

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Following the jury verdict, defendant was sentenced to an aggregate

prison term of twenty-two years, with over fourteen years of parole ineligibility

as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was

also sentenced to parole supervision for life, required to comply with registration

and reporting restrictions as prescribed by Megan's Law, N.J.S.A. 2C:7-1 to -11,

and prohibited from having contact with the victim as prescribed by Nicole's

Law, N.J.S.A. 2C:44-8.

On direct appeal, we affirmed defendant's convictions but remanded for

resentencing so the trial court could explain the reasons for the consecutive

sentence. State v. R.K., No. A-3540-14 (App. Div. Dec. 1, 2017) (slip op. at

15). Thereafter, the trial court resentenced defendant and imposed the same

aggregate prison term. In May 2018, the Supreme Court denied defendant's

petition for certification. State v. R.K., 235 N.J. 402 (2018).

In January 2019, defendant filed a petition for PCR. He was assigned

counsel, and the PCR court heard oral argument. On July 6, 2019, the PCR court

denied defendant's petition and issued a written opinion explaining the reasons

for the denial. In that opinion, the court reviewed all the arguments presented

by PCR counsel, as well as defendant, analyzed those arguments, and

determined that defendant had failed to establish a prima facie showing of

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ineffective assistance of counsel. Accordingly, the PCR court also denied

defendant's request for an evidentiary hearing.

II.

On this appeal, defendant contends that the PCR court erred in denying

his petition and denying him an evidentiary hearing. He contends that his trial

counsel was ineffective for four different reasons, which also had a cumulative

effect of denying him his right to effective counsel. Specifically, defendant

articulates his arguments as follows:

POINT I – BECAUSE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL, THE
PCR COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR PCR.

(A) Legal Standards Governing Applications For Post-
Conviction Relief.

(B) Trial Counsel Failed to Object to the CSAAS
Expert Witness Testimony and Failed to Object to the
Reliability of the Social Science Supporting Her
Explanation.

(D) Trial Counsel Failed to Appropriately Cross-
Examine K.K. and Retain an Expert on the Issue of
Discolored Semen.

(E) Trial Counsel Failed to Object to Detective Hill's
Hearsay Regarding DNA in the Marital Bedroom.

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(F) The Cumulative Errors by Trial Counsel Results in
Violation of Petitioner's Sixth Amendment Right to
Effective Counsel.

POINT II – BECAUSE THERE ARE GENUINE
ISSUES OF MATERIAL FACT IN DISPUTE, THE
PCR COURT ERRED IN DENYING AN
EVIDENTIARY HEARING.

(A) Legal Standards Governing Post-Conviction Relief
Evidentiary Hearings.

(B) Petitioner is Entitled to an Evidentiary Hearing.

Where, as here, the PCR court has not conducted an evidentiary hearing,

legal and factual determinations are reviewed de novo. State v. Harris, 181 N.J.
391, 419 (2004). The decision to proceed without an evidentiary hearing is

reviewed for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401

(App. Div. 2013).

To establish a claim of ineffective assistance of counsel, a defendant must

satisfy the two-part Strickland test: (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 v. Washington, 466 U.S. 668, 687 (1984); accord State v.

Fritz, 105 N.J. 42, 57-58 (1987). On petitions brought by a defendant who has

entered a guilty plea, a defendant satisfies the first Strickland prong if he or she

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can show that counsel's representation fell short of the prevailing norms of the

legal community. Padilla v. Kentucky, 559 U.S. 356, 366-67 (2010). Defendant

proves the second component of Strickland by establishing "a reasonable

probability that" defendant "would not have pled guilty," but for counsel's

errors. State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. Nunez-

Valdez, 200 N.J. 129, 139 (2009)).

1. The CSAAS Expert

Defendant contends that his trial counsel was ineffective for failing to

object to the State's CSAAS expert and the testimony concerning CSAAS. We

reject this argument because defendant cannot establish either prong of the

Strickland test.

Defendant was tried in 2014. At that time, "[t]he use of [CSAAS] expert

testimony [was] well settled." State v. W.B., 205 N.J. 588, 609 (2011). Our

Supreme Court had first accepted and authorized the use of CSAAS experts

almost twenty years earlier. See State v. J.Q., 130 N.J. 554, 579 (1993). In J.Q.,

the Court held that CSAAS testimony was sufficiently reliable to permit the

State to present expert testimony to "explain why many sexually abused children

delay reporting their abuse, and why many children recant allegations of abuse

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and deny that anything occurred." Ibid. (quoting John E. B. Myers et al., Expert

Testimony in Child Sexual Abuse Litigation,
68 Neb. L. Rev. 1, 67-68 (1989)).

In July 2018, however, the Court changed the law and concluded "it is no

longer possible to conclude that CSAAS has a sufficiently reliable basis in

science to be the subject of expert testimony." State v. J.L.G., 234 N.J. 265, 272

(2018). Consequently, the Court ruled that expert testimony about CSAAS and

four of its component behaviors could no longer be admitted at criminal trials.

Id. at 303. Two years later, the Court clarified that its holding in J.L.G. would

be afforded only pipeline retroactively and, consequently, only applied to cases

that were pending appeal in July 2018, when the J.L.G. decision was issued.

State v. G.E.P., 243 N.J. 362, 370, 389 (2020).

The new rule of law announced in J.L.G. is not applicable to defendant

because he had exhausted his direct appeal when the Supreme Court denied his

petition for certification in May 2018, more than two months before the J.L.G.

decision was issued in July 2018. Consequently, his trial counsel was not

ineffective in failing to challenge the CSAAS expert. "[T]here cannot be a

cognizable ineffective assistance claim when there is not yet a recognizable legal

basis for the motion that defendant says should have been made." Harris, 181 N.J. at 436. Trial counsel's performance is measured by "the law as it stood at

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the time of counsel's actions, not as it subsequently developed." State v.

Goodwin, 173 N.J. 583, 597 (2002) (citing State v. Fisher, 156 N.J. 494, 501

(1998)).

Moreover, defendant can establish no prejudice. Had his trial counsel

filed a motion to preclude the CSAAS expert, the trial court would have been

compelled to deny that motion because the governing law at that time permitted

CSAAS expert testimony as prescribed by our Supreme Court.

2. Trial Counsel's Alleged Failure to Conduct Investigations and
Prepare for Trial

Defendant also contends that his trial counsel was ineffective in his

investigation, preparation for trial, and plea negotiations. We reject these

arguments for two reasons.

Defendant did not raise the arguments concerning plea negotiations before

the PCR court. Accordingly, we decline to consider this new argument on

appeal. See Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012)

(recognizing the well-settled principle that appellate courts will generally

decline to consider questions raised for the first time on appeal unless the

questions involve the trial court's jurisdiction or matters of great public interest).

Defendant's additional arguments concerning failure to prepare for trial

and conduct investigations are conclusory and lack any evidential support.

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Those unsupported allegations are insufficient to establish a prima facie

showing of ineffective assistance of counsel. See State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999) (to raise a successful claim, a defendant must

make more than mere "bald assertions" of ineffective assistance).

3. Trial Counsel's Alleged Failure to Appropriately Cross-Examine the
Victim and Retain an Expert on the Issue of the Color of Defendant's
Semen

At trial, the victim testified that "greenish clear yellowish stuff" would

come out of defendant's penis. Defendant now contends that his trial counsel

was ineffective for not appropriately cross-examining the victim on that

testimony and for failing to retain an expert to testify that discolored semen is

attributable to various physical conditions that defendant did not have.

Defendant's argument about cross-examining the victim depends on the

related argument of having an expert who could testify concerning the color of

defendant's semen. Without expert testimony, cross-examining the victim

would not have been a strategically wise tactic. Defendant's argument,

therefore, fails because he presented no evidence of what an expert would have

testified or whether such an expert could have testified. Defendant must do

more than make an unsupported assertion if he claims that there needed to be

expert testimony. He must present either a proposed expert report or evidence

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of what a report would have reflected. See State v. Petrozelli, 351 N.J. Super.
14, 23 (App. Div. 2002) (citing Cummings, 321 N.J. Super. at 170) (defendant

must provide facts that could have been revealed by exculpatory witness,

supported by affidavits or certifications based on personal knowledge).

Defendant failed to provide any support for his arguments and, therefore, he has

not established a prima facie showing of ineffective assistance of counsel.

4. Trial Counsel's Failure to Object to the Testimony by the Detective

Defendant claims that trial counsel was ineffective in failing to object to

testimony by the detective who testified about what the victim told him. We

discern no error or prejudice.

Even if counsel had made an objection, it is not clear that the testimony

was hearsay because it was not necessarily offered for the truth of the matter.

N.J.R.E. 801(c). Without an objection, that issue was not properly developed at

trial and we are left to speculate as to what may have happened. In addition,

defendant has made no showing that without the detective's testimony, the

State's case would have been weakened. The State presented strong and

compelling evidence of defendant's crimes, including testimony from the victim

and corroborating DNA evidence. Therefore, defendant cannot establish the

second prong of the Strickland test.

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5. Alleged Cumulative Errors

The cumulative effect of trial errors can merit reversal when they "cast[]

doubt on the fairness of defendant's trial and on the propriety of the jury verdict

that was the product of that trial." State v. Jenewicz, 193 N.J. 440, 447 (2008).

Accordingly, reversal can be justified when the cumulative effect of a series of

errors is harmful, even if each error by itself is harmless. Ibid. Having found

no ineffective assistance of counsel, we discern no cumulative error.

6. The Denial of an Evidentiary Hearing

Finally, we reject defendant's contention that he was entitled to an

evidentiary hearing. A petitioner is not automatically entitled to an evidentiary

hearing. State v. Porter, 216 N.J. 343, 355 (2013). The PCR judge should grant

an evidentiary hearing only "if a defendant has presented a prima facie claim in

support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992).

Here, defendant failed to make that showing and he was not entitled to an

evidentiary hearing.

Affirmed.

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