STATE OF NEW JERSEY v. ROBERT KOSCH

NOT FOR PUBLICATION WITHOUT THE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-1091-20

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROBERT KOSCH,

     Defendant-Appellant.
__________________________

                   Submitted December 7, 2021 – Decided December 14, 2021

                   Before Judges Fisher and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Sussex County, Indictment No. 13-05-0188.

                   Robert Kosch, appellant pro se.

                   Robert J. Carroll, Morris County Prosecutor, attorney
                   for respondent (Paula Jordao, Assistant Prosecutor, on
                   the brief).

PER CURIAM
      After the third of three earlier appeals,1 defendant was sentenced to a

fifteen-year extended prison term subject to a six-year period of parole

ineligibility. He appealed for the fourth time, and we affirmed, State v. Kosch,

No. A-5117-18 (App. Div. Jan. 22, 2020), and a few months after, defendant

filed a post-conviction relief (PCR) petition, arguing, among other things, the

ineffectiveness of his appellate counsel. 2


1
  In defendant's first appeal, we reversed three convictions of theft of immovable
property while leaving six other theft convictions intact. State v. Kosch,  444 N.J. Super. 368 (App. Div. 2016). We remanded for a new trial on the three
immovable-theft charges and for resentencing once those charges were finally
resolved. Id. at 393. After that remand, the three immovable-theft charges were
neither retried nor dismissed; the judge instead resentenced defendant on the
other six convictions, imposing the same aggregate sentence and leaving the
three unadjudicated charges in suspended animation. Defendant appealed, and
we reversed because of the trial judge's failure to comply with our mandate about
the three unresolved charges. State v. Kosch,  454 N.J. Super. 440, 444 (App.
Div. 2018). Following that remand, the State voluntarily dismissed the three
immovable-theft charges, and defendant was resentenced to the same aggregate
twenty-year prison term originally imposed. Defendant appealed again. While
we rejected his double jeopardy and due process arguments, we vacated the
judgment of conviction and remanded because it did not appear sufficient
consideration had been given to the absence of the three immovable-theft
matters; as we then rhetorically asked: "how can a defendant, who stands
convicted of less than what he was convicted when originally sentenced, deserve
precisely the same sentence?" State v. Kosch,  458 N.J. Super. 344, 347 (App.
Div.), certif. denied,  240 N.J. 20 (2019). At the sentencing hearing that followed,
Judge David H. Ironson, who had not previously been involved in this matter,
imposed the fifteen-year prison term we affirmed in defendant's fourth appeal.
2
  Defendant was represented by counsel in his first appeal, but in all the later
appellate proceedings he represented himself.
                                                                             A-1091-20
                                         2
      Judge Louis S. Sceusi did not conduct an evidentiary hearing but heard

the argument of counsel and denied the PCR petition for reasons expressed in a

nineteen-page written decision. The judge concluded that many of the issues

raised in the PCR petition had been asserted and addressed in defendant's direct

appeal and were therefore procedurally barred. He also held that defendant failed

to present a prima facie case on his other claims.

      Defendant appeals, arguing:

            I. THIS COURT SHOULD RETAIN JURISDICTION.

            II. THE ERRORS COMPLAINED OF HERE ARE
            FUNDAMENTAL ERRORS, EITHER STRUC-
            TURAL, OR PLAIN AND FATAL, OR INSUR-
            M[]OUNTABLE TO THE CONVICTION REQUIR-
            ING REVERSAL AND/OR DISMISSAL AS THE
            BAR IMPOSED BY THE LOWER COURT IS
            VIOLATIVE OF THE STATE AND FEDERAL
            CONSTITUTION OFFENDING RULE 3:22-4([a])(1)
            (2) & (3).

            IIA. THE LACK OF FUNDAMENTAL FAIRNESS IN
            THESE PROCEEDINGS IS SUFFICIENT FOR THIS
            TRIBUNAL TO VACATE[] OR DISMISS THE
            INSTANT CHARGES.

            III. APPELLATE COUNSEL'S REPRESENTATION
            FELL BELOW CONSTITUTIONAL STANDARDS
            MAKING HIS REPRESENTATION INEFFECTIVE
            IN THIS CASE BY NOT RAISING CLAIMS THAT
            THE TRIAL JUDGE FAILED TO RULE ON A
            TIMELY FILED MOTION TO DISMISS THE
            INDICTMENT, FAILED TO MAKE A RULING ON

                                                                           A-1091-20
                                        3
            DEFENDANT'S MOTION FOR ACQUITTAL AFTER
            THE STATE RESTED AND DID NOT PROPERLY
            ENGAGE IN THE CREATION OF A JURY CHARGE
            ON COUNT 10 DUE TO THE ABSENCE OF A
            MODEL JURY CHARGE BY THE ADMINI-
            STRATIVE OFFICE OF THE COURTS.

      We find insufficient merit in defendant's arguments to warrant further

discussion, R. 2:11-3(e)(2), and we affirm substantially for the reasons set forth

by Judge Sceusi in his thorough and well-reasoned written decision.

      Affirmed.




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