STATE OF NEW JERSEY v. T.R.G

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                                NOT FOR PUBLICATION WITHOUT THE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-1805-20

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

T.R.G.,

     Defendant-Appellant.
__________________________

                    Submitted March 24, 2022 – Decided April 21, 2022

                    Before Judges Mawla and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 13-01-0003.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Steven M. Gilson, Designated Counsel, on
                    the brief).

                    Grace C. MacAulay, Camden County Prosecutor,
                    attorney for respondent (Hannah M. Franke, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant T.G. appeals from a July 20, 2020 order denying his petition

for post-conviction relief (PCR). After careful review of the record and the

governing legal principles, we affirm.

      In the underlying offense, defendant was charged with sexually assaulting

his three step-granddaughters. After a trial, a jury convicted defendant of one

count of aggravated assault,  N.J.S.A. 2C:14-2(a)(1); two counts of sexual

assault,  N.J.S.A. 2C:14-2(b); and three counts of endangering the welfare of a

child,  N.J.S.A. 2C:24-4(a).    The factual record is detailed in our opinion

affirming defendant's conviction and sentence. See State v. T.R.G., No. A-5308-

14 (App. Div. Nov. 17, 2017) (slip op. at 1-13).

      On February 19, 2019, defendant filed this PCR petition based on alleged

ineffective assistance of counsel. Defense counsel submitted a petition for PCR

on or about January 31, 2020, in support of defendant's pro se petition. On July

20, 2020, the PCR judge issued an order and accompanying written opinion

denying defendant's petition without a hearing.

      On appeal, defendant raises the following points for our consideration:

            POINT I

            THE DEFENDANT'S CLAIMS OF TRIAL
            COUNSEL'S INEFFECTIVENESS SHOULD NOT
            HAVE BEEN PROCEDURALLY BARRED.


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            POINT II

            THIS MATTER MUST BE REMANDED FOR AN
            EVIDENTIARY    HEARING    BECAUSE   THE
            DEFENDANT ESTABLISHED A PRIMA FACIE
            CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.

            A.     Trial Counsel Failed To Object To The
                   Prosecution's Vouching For And Bolstering The
                   Alleged Victims' Credibility.

            B.     Trial Counsel Failed To Inform The Defendant
                   Of The Negative Impact Of Pleading The Fifth
                   Amendment While Testifying.

      "[W]e review under the abuse of discretion standard the PCR court's

determination to proceed without an evidentiary hearing." State v. Brewster,

 429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding

an evidentiary hearing will not aid the court's analysis of whether the defendant

is entitled to post-conviction relief, . . . then an evidentiary hearing need not be

granted." Ibid. (quoting State v. Marshall,  148 N.J. 89, 158 (1997)). We review

the denial of a PCR petition with "deference to the trial court's factual findings

. . . 'when supported by adequate, substantial and credible evidence.'" State v.

Harris,  181 N.J. 391, 415 (2004) (quoting Toll Bros., Inc. v. Twp. of W.

Windsor,  173 N.J. 502, 549 (2002)).

      Where, as here, "no evidentiary hearing has been held, we 'may exercise

de novo review over the factual inferences drawn from the documentary record

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                                         3
by the [PCR judge].'" State v. Reevey,  417 N.J. Super. 134, 146-47 (App. Div.

2010) (alteration in original) (quoting Harris,  181 N.J. at 421). We also review

de novo the legal conclusions of the PCR judge. Harris,  181 N.J. at 415.

      When an allegation underpinning an ineffective assistance of counsel

claim has already been raised on direct appeal, "it may be procedurally barred

on PCR by Rule 3:22-5." State v. McQuaid,  147 N.J. 464, 484 (1997). Rule

3:22-5 provides:

            A prior adjudication upon the merits of any ground for
            relief is conclusive whether made in the proceedings
            resulting in the conviction or in any post-conviction
            proceeding brought pursuant to this rule or prior to the
            adoption thereof, or in any appeal taken from such
            proceedings.

      "'Preclusion of consideration of an argument presented in post-conviction

relief proceedings should be effected only if the issue [raised] is identical or

substantially equivalent' to that issue previously adjudicated on its merits."

McQuaid,  147 N.J. at 484 (quoting State v. Bontempo,  170 N.J. Super. 220, 234

(Law Div. 1979)). The court will not accept a defendant's contention that he

was unable to raise the issue of ineffective assistance of counsel in cases where

the issue "could have been raised and would be procedurally barred but for the

constitutional attiring of the petition in ineffective assistance of counsel

clothing." State v. Moore,  273 N.J. Super. 118, 125 (App. Div. 1994).

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                                       4
         As the PCR judge found, the substantive issue of the effect of defendant's

unexpectedly pleading the Fifth Amendment in the midst of his testimony was

fully addressed on direct appeal. On direct appeal, we found that any prejudice

was as a result of defendant's own conduct and did not warrant reversal. T.R.G.,

slip op. at 23. Defendant cannot avoid the procedural bar by repackaging the

claim as one for ineffective assistance of counsel. Moreover, as the PCR court

also found, defendant's claim is a bald assertion unsupported by any competent

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

("[I]n order to establish a prima facie claim, a petitioner must do more than make

bald assertions that he was denied the effective assistance of counsel. He must

allege     facts   sufficient   to   demonstrate   counsel's   alleged      substandard

performance.").

         Further, Rule 3:22-4(a) provides:

               (a) First Petition for Post-Conviction Relief. Any
               ground for relief not raised in the proceedings resulting
               in the conviction . . . or in any appeal taken in any such
               proceedings is barred from assertion in a proceeding
               under this rule unless the court on motion or at the
               hearing finds:

                     (1) that the ground for relief not previously
                     asserted could not reasonably have been raised in
                     any prior proceeding; or



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                   (2) that enforcement of the bar to preclude
                   claims, including one for ineffective assistance of
                   counsel, would result in fundamental injustice; or

                   (3) that denial of relief would be contrary to a
                   new rule of constitutional law under either the
                   Constitution of the United States or the State of
                   New Jersey.

      We agree with the PCR judge's conclusion that defendant's claim that the

prosecutor's comments improperly bolstered the victim's credibility is

procedurally barred because the issue could have been raised on direct appeal.

Specifically, the judge noted that, in accordance with Rule 3:22-4, there were

"no factual predicates in this petition for post-conviction relief that could not

have been discovered earlier through the exercise of reasonable diligence." The

judge further determined that defendant had "failed to demonstrate that a

fundamental injustice would occur if his present claim[s] were barred from

consideration in a petition for post-conviction relief" and that he "failed to allege

any new constitutional law that the bar on his claims would violate." Defendant

chose not to raise the issue of the prosecutor's alleged bolstering of the victim's

credibility on direct appeal. The judge's findings are supported by the record

and his legal conclusions are sound.         We discern no abuse of discretion

warranting reversal.



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      To the extent we have not addressed defendant's arguments, we find they

lack sufficient merit to warrant discussion in a written opinion. See R. 2:11-

3(e)(2).

      Affirmed.




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