STATE OF NEW JERSEY VS. M.R.P.(10-09-1016, MORRIS COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-2430-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.R.P.,
Defendant-Appellant.
Submitted May 10, 2017 – Decided July 18, 2017
Before Judges Alvarez and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Indictment No. 10-09-1016.
Joseph E. Krakora, Public Defender, attorney
for appellant (John V. Molitor, Designated
Counsel, on the brief).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Erin Smith Wisloff,
Supervising Assistant Prosecutor, on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant M.R.P. appeals the November 12, 2015 order denying
his petition for post-conviction relief (PCR). We affirm for the
reasons stated by Judge Stuart A. Minkowitz in his detailed written
decision. We add some brief comments.
We denied defendant's direct appeal in State v. M.R.P., No.
A-2982-11 (App. Div. Sept. 5, 2014). His petition for
certification to the Supreme Court was also denied. State v.
M.R.P., 220 N.J. 575 (2015). Defendant was convicted by a jury
of multiple 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); second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a); and third-degree aggravated criminal sexual
contact, N.J.S.A. 2C:14-3(a). The two victims were his nieces,
B.P. and A.P. Defendant was sentenced on December 16, 2011, to
an aggregate term of forty years imprisonment, subject to the No
Early Release Act's eighty-five percent parole ineligibility.
N.J.S.A. 2C:43-7.2.
Defendant's sexual abuse of B.P. began in 1998, when she was
eight years old, and was sent by family from El Salvador to live
here. A.P., her younger sister, was abused when she visited B.P.
in defendant's home years later. The sexual assaults on B.P.
continued until her adolescence, when A.P. disclosed defendant's
conduct to the family. They came to this country to remove B.P.
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from defendant's care. The criminal charges were filed at that
time.
M.R.P. raised nineteen separate arguments for post-conviction
relief in his petitions. On appeal, his counseled brief raises
two:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.
POINT II
THE TRIAL COURT ERRED IN REFUSING TO TAKE INTO
ACCOUNT THE PROPOSED TESTIMONY OF R.P. IN
MAKING ITS DECISION TO DENY DEFENDANT AN
EVIDENTIARY HEARING.
Defendant's uncounseled brief raises eight points of error
as follows:
POINT I
THE COURT VIOLATED THE APPELLANT'S RIGHTS WHEN
IT DENIED HIM THE OPPORTUNITY TO PRESENT
EVIDENCE TO SUPPORT HIS POST-CONVICTION RELIEF
PETITION.
POINT II
THE COURT ERRED WHEN IT RULED THAT THE MEDICAL
EVIDENCE WAS IRRELEVANT DESPITE ITS CLEAR
EXCULPATORY VALUE AND DESPITE LONG-
ESTABLISHED LEGAL PRECEDEN[TS].
POINT III
THE COURT ERRED AND CONTRADICTED ITSELF WHEN
IT RULED THAT THE DEFENDANT HAD RECEIVED
ADEQUATE LEGAL ASSISTANCE WHILE AT THE SAME
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TIME RULING HIS ARGUMENTS INVALID BECAUSE THEY
WERE NOT RAISED EARLIER.
POINT IV
THE COURT ERRED WHEN IT REFUSED TO ADDRESS THE
LEGALITY OF THE SEARCH OF THE APPELLANT'S
RESIDENCE.
POINT V
THE COURT SHOWED GROSS ABUSE OF DISCRETION AND
DELIBERATE INDIFFERENCE WHEN IT FAILED TO
EXAMINE THE POSSIBILITY OF PROSECUTORIAL
VINDICTIVENESS.
POINT VI
THE COURT DOUBLE-COUNTED ELEMENTS OF THE CRIME
TO SUPPORT THE APPLICATION OF AGGRAVATING
FACTOR 1 DURING SENTENCING.
POINT VII
THE COURT INCORRECTLY DISMISSED CRITICAL NEWLY
UNCOVERED EVIDENCE.
POINT VIII
THE IMPOSITION BY THE COURT OF A SPECIAL
SENTENCE OF PAROLE SUPERVISION FOR LIFE
VIOLATED THE DOUBLE JEOPARDY CLAUSES OF THE
UNITED STATES AND NEW JERSEY CONSTITUTIONS
RENDERING THE SENTENCE ILLEGAL.
We first address the points raised in the counseled brief.
In point one, defendant attacks the court's failure to fully
explore the claim that the eighteen-year plea offer was not
conveyed to him. However, the judge, although he mentioned the
possibility of finding additional corroboration of the information
presented to him at the time of the PCR argument, considered the
information he had sufficient to rule. That information was
dispositive —— a letter defendant wrote to the court prior to
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trial about the plea bargaining process. In that June 26, 2009
letter, written two years before the trial, defendant complained
to the judge that the prosecutor had changed the plea offer from
fifteen to eighteen years "for the sole reason that, as [the
prosecutor] put it, I 'should not be rewarded' for not accepting
before." The claim regarding ineffective assistance of counsel
based on the alleged failure to communicate the eighteen-year plea
offer was completely refuted by the letter defendant wrote to the
judge complaining about it. The judge's denial of relief on that
basis is unassailable.
The second point in the counselled brief goes to the trial
court's alleged failure to take into account the information
defendant characterized as new evidence. Defendant's brother
wrote a letter in which he said B.P. and A.P. acknowledged to him
that their accusations against defendant were false, and in which
he ascribed improper motives to the allegedly false accusations.
The letter was undated and uncertified. As the judge noted, the
letter also said that defendant's brother conveyed this
information to defendant's attorney in 2008 or 2009, years before
the trial. The contents of the letter cannot be considered newly
discovered evidence. Defendant's brother was not called to testify
at trial.
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Furthermore, A.P. and B.P. were both extensively cross-
examined, including questions about the factual allegations made
in the letter. In other words, although the letter was not
identified as the source, the same issues the letter raised were
covered in the trial. Hence, we are satisfied that judge correctly
declined to find that the undated and uncertified letter had any
evidentiary value.
Most of the points defendant raises in the uncounseled brief
are barred by Rule 3:22-4. Subsection (a) of the rule states that
a ground for relief not previously raised is barred from PCR
consideration if it could have been addressed on direct appeal.
The rule allows for certain exceptions —— none of which applied
here. Therefore, the judge properly refused to consider issues
that fell within that category.
In order to establish ineffective assistance of counsel as
the basis for post-conviction relief, a defendant must meet two
requirements –— that the objected-to representation fell outside
the range of competent professional assistance, and ultimate
prejudice to the outcome. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). In
reviewing such claims, there is a strong presumption that counsel's
performance fell within the range of reasonable representation.
State v. Hess, 207 N.J. 123, 147 (2011). Objectively reasonable,
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although ultimately unsuccessful, decisions regarding strategy
made by counsel fall within the range of adequate representation.
State v. Arthur, 184 N.J. 307, 319 (2005).
We address only one point in defendant's uncounseled brief
—— the allegation that trial counsel was ineffective because he
did not obtain B.P.'s records. Judge Minkowitz concluded that
even if B.P.'s medical records did not include complaints about,
or physical manifestations of, sexual abuse, they would likely not
have affected the outcome. The strength of B.P. and A.P.'s
testimony was bolstered by DNA evidence that established
intercourse between B.P. and defendant. There is no reason in
this case to conclude that had those records been made available,
that they would have been anything other than neutral.
In sum, defendant fell woefully short of even approximating
a prima facie case of ineffective assistance of counsel such as
would have warranted a plenary hearing. Viewing the facts in the
light most favorable to him, it is nonetheless clear none of his
claims require additional proceedings. See State v. Jones, 219
N.J. 298, 311 (2014); State v. Marshall, 148 N.J. 89, 158 (1997).
Affirmed.
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