STATE OF NEW JERSEY v. R.P.B.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4155-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

R.P.B. 1

Defendant-Appellant.
________________________

Submitted November 9, 2021 – Decided December 8, 2021

Before Judges Hoffman and Geiger.

On appeal from the Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No. 06-
10-2344.

Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel,
on the brief).

Lori Linskey, Acting Monmouth County Prosecutor,
attorney for respondent (Monica do Outeiro, Special

1
We use initials to identify defendant and the victims to protect the privacy of
the victims. R. 1:38-3(d)(10).
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).

PER CURIAM

Defendant R.P.B. appeals from a June 22, 2018 Law Division order

denying the withdrawal of his guilty plea based on newly discovered evidence,

without an evidentiary hearing. We affirm.

We recounted the underlying facts in our prior opinion. State v. R.P.B.,

No. A-0093-18 (App. Div. December 13, 2019) (R.P.B. I).

In June 2006, defendant resided with his twelve-
year-old son and two other children ages eleven and
ten. While residing with the children he acted as their
parent. Defendant failed to provide adequate food to
the children and kept the house in a filthy, unkempt
condition. Allegations surfaced that he had engaged
in sexually assaulting and endangering the children
and acting lewdly in their presence.

A Monmouth County Grand Jury returned an
indictment charging defendant with four counts of
second-degree endangering the welfare of a child,
N.J.S.A. 24-4(a) (counts one, two, six, and seven);
two counts of second-degree sexual assault, N.J.S.A.
2C:14-2(b) (counts three and four); and fourth-degree
lewdness, N.J.S.A. 2C:14-4(b)(1) (count five).

On December 11, 2006, defendant entered into a
plea agreement with the State. During the plea
hearing that day, the assistant prosecutor recited the
terms of the plea agreement on the record. In
exchange for his guilty plea to counts one, two and
five, the State agreed to treat counts one and two as

2 A-4155-19
third-degree offenses for sentencing purposes, and to
recommend concurrent four-year flat sentences on
counts one and two and a concurrent flat one-year
sentence on count five. Defendant would be required
to comply with Megan's Law and be placed on Parole
Supervision for Life (PSL). The remaining counts
would be dismissed. Trial counsel confirmed that the
terms recited by the assistant prosecutor were correct.
....

The trial court then requested trial counsel to
establish a factual basis for defendant's plea. In
response to counsel's questions, defendant admitted to
residing with the three victims, all of whom were
minors, and that he had the power to parent them. He
then admitted he failed to provide adequate food to the
children and kept the house in a filthy condition.
Defendant also admitted that he displayed his genitals
to the children and struck his penis against their
clothing for his own sexual gratification. The court
accepted defendant's guilty plea.

....

Defendant was sentenced in accordance with the
terms of the plea agreement to an aggregate four-year
flat term, appropriate fines and penalties, required to
comply with Megan's Law, and placed on [Parole
Supervision for Life (PSL)]. He was awarded 307
days credit for time served and [58] days of gap time.
Defendant did not appeal his conviction or sentence.

Defendant served his prison term and was
released subject to Megan's Law and PSL, which he
violated on several occasions, resulting in further
charges, convictions, and incarceration.

[R.P.B. I (slip op. at 2-8) (footnote omitted).]

3 A-4155-19
In July 2016, defendant received a notarized letter from his son,

recanting his allegations that defendant had sexual abused him. The letter

stated, in pertinent part:

I would like to state that I am writing this letter on my
own free will, no one is forcing me. The purpose of
this letter is to hopefully keep my father, [R.P.B.]
from being incarcerated any longer. At the age of
[eleven] I made allegations to a detective and the
[S]tate that my father was sexually abusing me. These
allegations are false. Sadly and regretfully I lied in
order to be removed from my father[']s care and
placed with my uncle [J.B.]. I lied because my father
was abusing drugs and at the time he scared me while
under the influence. At the time he was not being a
good father. He would get angry more often and
sometimes hit me. Which just scared me more. But
that is all he is guilty of. He would never do anything
sexual to me or anyone else for that matter. While
living in my father[']s care things did not improve. He
continued his use of drugs and always arguing with his
girlfriend. I was not happy and felt as though I was
not being heard. So I made false allegations knowing
[the Division of Youth and Family Services] would
have to remove me. Yes I was young but I learned at
a young age having gone through the system so much
that these lies would have me removed from my
father[']s care. At the time however being so young, I
didn't realize how severe the consequences would be.
He has spent most of his life since incarcerated for a
crime he did not commit . . . . Having grown up I
realize how much I need my dad and how wrong I was
to make such allegations against him.

[Id. at 8-9.]

4 A-4155-19
In February 2017, defendant filed a pro se petition for PCR, claiming

ineffective assistance of counsel. Id. at 9. Defendant alleged:

trial counsel failed to listen to or argue the facts
pertaining to his case and "to reverse [the] plea
agreement." Defendant also alleged newly discovered
evidence was received in July 2016. The petition
further alleged that defendant's "reason for accepting
the plea offer was to protect [his] girlfriend of [five]
years at the time. She was threatening her life if she
did not get released soon." Defendant asserted that
when he told this to his trial counsel, "he did not want
to hear about it."

PCR counsel was appointed to represent
defendant and submitted an amended petition and
supporting certification of defendant. Defendant
claimed trial counsel was ineffective because he failed
to advise him of the penal and collateral consequences
of his plea. In his certification, defendant stated his
trial counsel told him the plea agreement "would
finalize [his] legal matter in Monmouth County and no
other action would be taken as a result of [the] plea."
He further stated that trial counsel "refused to do any
investigation into [his] case even though [he]
protested [his] innocence."

Defendant claimed he "did not want to take the
plea as [he] did not perform any criminal sexual acts
toward the victims and only took the plea to protect
the victims and [his] girlfriend who was residing with
[him] at the time." He admitted, however, that he
"was guilty of endangering the children for having
drugs in the home and for keeping a very dirty and
unkempt home not suitable for children."

5 A-4155-19
Defendant stated his trial counsel "encouraged
[him] to plead guilty as the plea deal was to [his]
benefit." Defendant indicated he pled guilty because
he was "misinformed that there was no other way to
prove [he] had not committed the alleged acts." He
stated he filed his petition after receiving the letter
from his son in 2016, recanting the sexual assault
allegations.

....

The PCR court issued a June 22, 2018 order and
fifteen-page statement of reasons denying PCR
without an evidentiary hearing.

....

The court concluded the newly discovered evidence
did not relate to defendant's claim of ineffective
assistance of counsel during the plea process. The
judge "fail[ed] to see how a recantation letter written
on June 29, 2016, almost ten years after defendant
pled guilty, could possibly be relevant to defense
counsel's actions during the plea process a decade
earlier." The judge found "[i]t is not excusable
neglect to wait nine years to file a petition . . . based
on counsel's actions during the plea process merely
because a victim wrote a recantation letter a decade
later that is wholly irrelevant to defendant's grounds
for [PCR]." The judge found defendant failed to
establish either excusable neglect or fundamental
injustice, and ruled the petition time-barred.

....

Finally, the judge briefly addressed defendant's
claim of newly discovered evidence, consisting of a
recantation letter by one of the victims. The judge

6 A-4155-19
concluded the issue was not properly raised as part of
an ineffective assistance of counsel PCR claim and not
properly before the court.

The judge concluded defendant failed to
establish a prima facie case of ineffective assistance of
counsel and thus was not entitled to an evidentiary
hearing or PCR.

[Id. at 9-15.]

Defendant appealed, arguing he was denied the effective assistance of

trial counsel and PCR counsel. Id. at 15-16. We affirmed the rejection of

defendant's claims that trial counsel was ineffective, finding the claim was

time-barred and substantively without merit. Id. at 16-19.

As to defendant's claim that his son's statements constituted newly

discovered evidence that warranted a new trial, we determined that "the PCR

court did not apply the Carter 2 criteria to determine if the newly discovered

evidence warranted a new trial. Instead, the PCR court summarily determined

the issue was not properly before it and denied the petition without considering

the merits." R.P.B. I (slip op. at 21). We "remand[ed] the issue [of]

withdrawal of the plea based on newly discovered evidence for a decision on

the merits." Id. at 22. We left it to the sound discretion of the remand court

"to determine whether to grant an evidentiary hearing and whether to require

2
State v. Carter, 85 N.J. 300 (1981)

7 A-4155-19
or permit amended or supplemental submissions on the newly discovered

evidence issue." Ibid.

The remand court heard oral argument and issued a written decision

denying defendant's application to withdraw his guilty plea. The court

concluded defendant did not satisfy the criteria adopted in Carter, 85 N.J. at
314, and that an evidentiary hearing was not warranted.

The court engaged in the following analysis:

C.L. is one of three victims in this case. In 2006,
C.L., writing for himself and on behalf of his brother,
L.M., and C.M., writing for herself, all provided
written statements detailing defendant's abuse. All
three statements include allegations of sexual abuse.
To date, only C.L. has recanted his prior allegations
against defendant.

Under Carter's first prong, the newly discovered
evidence must be material, and not merely cumulative,
impeaching or contradictory, C.L.'s recantation does
not satisfy this requirement. If C.L. 's 2006 statement
had constituted the entirety of the allegations against
defendant, his 2016 recantation may have been
material evidence that could cast doubt on the
conviction. However, the other two victims'
statements from 2006 corroborate the allegations of
sexual abuse that C.L. now recants. C.L.'s 2016 letter,
standing alone, is merely contradictory, and thus does
not satisfy Carter's first prong.

The court also finds on the motion record that
the second prong of the Carter test cannot be satisfied.
Although this evidence was apparently discovered

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since defendant's guilty plea in 2006, defendant offers
nothing to explain why such evidence could not have
been discovered earlier than 2016. The three victims'
allegations were investigated by law enforcement and
D.Y.F.S., with no indication in the record that there
was any doubt as to the veracity of the victims'
allegations. Further, according to the Pre-Sentence
Report prepared by Probation, L.M. and C.M. suffered
recurring nightmares, underwent intensive therapy,
and suffered from post-traumatic stress syndrome as a
result of defendant's abuse. Presentence Report 2
(Exhibit E of defendant's amended PCR petition).
These facts further undermine the veracity of C.L.'s
recantation, already "regarded as 'suspect and
untrustworthy."' [State v. Ways, 180 N.J. 171, 197
(2004)] (citing [State v. Carter, 69 N.J. 420, 427
(1976)]).

Even if defendant could not have discovered this
evidence at any time prior to this petition for post-
conviction relief, the court does not find that
defendant's newly discovered evidence was "of the
sort that would probably change the jury's verdict if a
new trial were granted," Carter, 85 N.J. at 314, or
would "cast[] doubt on the justice of defendant's
conviction." [State v. Dickerson, 268 N.J. Super. 33,
36 (App. Div. 1993)]. As stated above, there are two
other victims in this case who also accused defendant
of sexual abuse and have not recanted their
allegations. The psychological trauma suffered and
ensuing treatment of the other two victims weighs
heavily against any possibility that there would be a
different outcome; that is to say that defendant would
not have pled guilty, or been found guilty by a jury, on
the weight of L.M. and C.M.'s testimony alone. As
such, defendant has failed to satisfy Carter's third
prong.

9 A-4155-19
Because the PCR record demonstrates that
Carter's three-prong test cannot be satisfied, the court
concludes that there is no basis to conduct an
evidentiary hearing, and that no supplemental
submissions will shed any new light on defendant's
entitlement to a new trial based on newly discovered
evidence, consisting solely of the statements of his son
C.L. as the Appellate Division has noted.

This appeal followed. Defendant argues:

THE PCR COURT ERRED IN DENYING
[DEFENDANT] AN EVIDENTIARY HEARING
AND THE OPPORTUNITY TO ADDRESS STATE
V. CARTER, 85 N.J. 300 (1981) BEFORE
RENDERING ITS DECISION REGARDING THE
NEWLY DISCOVERED EVIDENCE, AS
[DEFENDANT] MUST BE ALLOWED TO
PROVIDE THE PCR COURT WITH ARGUMENTS
SUPPORTING C.L.'S RECANTATION OF SEXUAL
ABUSE, WHICH WARRANT A NEW TRIAL.

Defendant argues that newly discovered evidence—C.L.'s statement

recanting his prior allegations that defendant sexually abused him—warrants

an evidentiary hearing on his claim that he should be permitted to withdraw his

plea. We are unpersuaded.

Newly discovered evidence that would require a new trial must be "(1)

material to the issue and not merely cumulative or impeaching or

contradictory; (2) discovered since the trial and not discoverable by reasonable

diligence beforehand; and (3) of the sort that would probably change the jury’s

10 A-4155-19
verdict if a new trial were granted." Carter, 85 N.J. at 314 (citing State v.

Artis, 36 N.J. 538, 541 (1962)). All three prongs must be satisfied before a

defendant will obtain a new trial. Ways, 180 N.J. at 187 (citations omitted).

"Newly discovered evidence must be reviewed with a certain degree of

circumspection to ensure that it is not the product of fabrication, and, if

credible and material, is of sufficient weight that it would probably alter the

outcome of the verdict in a new trial." Id. at 187-88. "Courts generally regard

recantation testimony as suspect and untrustworthy." Carter, 69 N.J. at 427

(citing 58 Am. Jur. 2d New Trial § 175 (1976)).

Motions for a new trial based on newly discovered evidence are "not

favored and should be granted with caution by a trial court since [they]

disrupt[] the judicial process." State v. Conway, 193 N.J. Super. 133, 171

(App. Div. 1984) (citing State v. Haines, 20 N.J. 438, 443 (1956)). Such

motions are "addressed to the sound discretion of the trial court, and its

determination will not be reversed on appeal unless there has been a clear

abuse of that discretion." State v. Puchalski, 45 N.J. 97, 107 (1965) (quoting

Artis, 36 N.J. at 541); accord State v. Russo, 333 N.J. Super. 119, 137 (App.

Div. 2000). That said, a "reviewing court must engage in a thorough, fact-

11 A-4155-19
sensitive analysis to determine whether the newly discovered evidence would

probably make a difference to the jury." Ways, 180 N.J. at 191.

The mere raising of a claim of newly discovered evidence 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 an

evidentiary hearing only if the defendant has presented a prima facie claim of

newly discovered evidence warranting a new trial or withdrawal of a guilty

plea under the Carter test, 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 PCR without an evidentiary

hearing for abuse of discretion. State v. Preciose, 129 N.J. 451, 462 (1992).

The same standard of review applies when a defendant files a petition for PCR

seeking either a new trial or to withdraw a guilty plea based on newly

discovered evidence. See State v. Hooper, 459 N.J. Super. 157, 180 (App.

Div. 2019) (stating a reverse of a denial of a motion to withdraw a guilty plea

occurs if the trial court abused its discretion).

Considering defendant's contentions in light of the record and the

applicable law, we affirm the denial of defendant's application to withdraw his

12 A-4155-19
guilty plea based on newly discovered evidence substantially for the reasons

expressed in the remand court's written decision. We discern no abuse of

discretion or legal error in the judge's consideration of the issue, or in his

decision to deny the application without an evidentiary hearing.

Recantation evidence that merely asserts that prior testimony or

statements are false does not satisfy the materiality prong of the Carter test. In

addition, C.L.'s statement to police in 2006 detailing defendant's abuse was

corroborated by the contemporaneous statements of the other two victims.

Moreover, C.L.'s recantation did not undermine the evidence of defendant's

abuse of the other two victims, who did not recant their allegations.

Considering the totality of the circumstances, including the unreliable nature

of recantations, we are satisfied that C.L.'s recantation at this late date does not

satisfy the Carter criteria. See State v. Buonadonna, 122 N.J. 22, 51 (1991)

(finding "sketchy" evidence insufficient to warrant a new trial).

Affirmed.

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