STATE OF NEW JERSEY VS. J.P.G. (10-11-2712, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-5485-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.P.G.,
Defendant-Appellant.
______________________________
Submitted September 19, 2019 – Decided September 26, 2019
Before Judges Alvarez and Suter
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 10-11-2712.
Joseph E. Krakora, Public Defender, attorney for
appellant (Lee March Grayson, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Stephen Anthony
Pogany, Special Deputy Attorney General, Acting
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant J.P.G. appeals the denial of his petition for post-conviction
relief (PCR) without an evidentiary hearing. For reasons that follow, we affirm.
I
This case arises from the sexual assault by defendant of his twenty-one
year old niece, A.R., that occurred early in the morning of August 1, 2010. Our
unreported opinion described the assault. See State v. J.P.G., No. A-1978-12
(App. Div. June 2, 2015).
Defendant was convicted in 2011 of second-degree sexual assault,
N.J.S.A. 2C:14-2(c)(1), and third-degree criminal sexual contact, N.J.S.A.
2C:14-3(b). He was sentenced to nine years and six months in prison on the
sexual assault charge. 1 Defendant appealed and we affirmed his conviction and
sentence. J.P.G., slip op. at 2. We rejected defendant's argument that the trial
court deprived him of his right to testify by not granting him additional time to
make this election. We also rejected his claim that his sentence was excessive
because the trial court did not find applicable mitigating factor four based on his
1
Defendant was resentenced in 2013, to correct his sentence to reflect a period
of parole ineligibility under the No-Early Release Act, N.J.S.A. 2C:43-7.2. He
was sentenced to parole supervision, N.J.S.A. 2C:43-6.4 and was required to
register as a sex offender, N.J.S.A. 2C:7-2. Defendant was sentenced to three
years in prison on the sexual contact count to be served concurrently.
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alleged mental health issues. Id. at 9. The Supreme Court denied his petition
for certification. State v. J.P.G., 223 N.J. 283 (2015).
Defendant filed his first PCR petition in December 2015, alleging
ineffective assistance of his trial counsel. His PCR counsel filed an additional
brief and certification from defendant in support of the petition.
The PCR court denied defendant's petition in December 2016 without an
evidentiary hearing. It rejected his claims about a diminished capacity defense,
possible alibi witnesses and non-waiver of his right to testify. 2
Defendant presents the following issues for our consideration in his
appeal:
POINT I
THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED AND THE CASE
REMANDED FOR A FULL EVIDENTIARY
HEARING BECAUSE THE DEFENDANT MADE A
PRIMA FACIE SHOWING OF INEFFECTIVE
ASSISTANCE OF COUNSEL UNDER THE
STRICKLAND/FRITZ TEST.
A. TRIAL COUNSEL WAS
INEFFECTIVE BECAUSE HE DID NOT
CONDUCT AN INVESTIGATION OF
WITNESSES WHO WERE IN THE
2
Defendant complained his trial attorney was not present at sentencing a lthough
he was represented by another attorney. The PCR court rejected his claim.
Defendant did not appeal this issue.
A-5485-17T4
3
RESIDENCE DURING THE TIME THAT
THE ALLEGED INCIDENT OCCURRED
OR HAVE THEM TESTIFY AT TRIAL.
B. TRIAL COUNSEL WAS
INEFFECTIVE BECAUSE HE DID NOT
INVESTIGATE OR PURSUE A
DIMINISHED CAPACITY DEFENSE.
C. TRIAL COUNSEL WAS
INEFFECTIVE BECAUSE HE DID NOT
ALLOW THE DEFENDANT TO
TESTIFY AND FAILED TO INFORM
HIM ABOUT HIS RIGHT OT TESTIFY.
II
The standard for determining whether counsel's performance was
ineffective for purposes of the Sixth Amendment was formulated in Strickland
v. Washington, 466 U.S. 668 (1984) and adopted by our Supreme Court in State
v. Fritz, 105 N.J. 42 (l987). In order to prevail on an ineffective assistance of
counsel claim, defendant must meet a two-prong test by establishing that: (l)
counsel's performance was deficient and the errors made were so egregious that
counsel was not functioning effectively as guaranteed by the Sixth Amendment
to the United States Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists "a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 694.
A-5485-17T4
4
Defendant contends his trial attorney should have interviewed his wife
and son as potential alibi witnesses because they were in the residence on the
night of the assault. Based on a memorandum from an investigator to his PCR
counsel, defendant contends his wife said that he was asleep in bed on the night
in question when she went to bed. She did not hear anything during the night.
"In asserting the defense of alibi a defendant is alleging he was elsewhere
at the time the crime was committed and therefore could not commit it." State
v. Mitchell, 149 N.J. Super. 259, 262 (App. Div. 1977). There was no evidence
that defendant's wife or son could provide an alibi for defendant at the time when
the victim says she was assaulted. Defendant's wife told the investigator that
she could not say defendant was in bed all night or whether defendant and A.R .
had an altercation downstairs. His son was at home, but also was asleep at the
time. We agree with the PCR court that defense counsel may well have
concluded not to call either witness because neither could provide defendant
with an alibi at the time of the assault. Defendant presented no evidence that
the assault would have awakened anyone had it occurred.
Defendant contends his attorney should have pursued a diminished
capacity defense by having him examined by a psychiatrist. However, a
psychiatrist did examine him prior to sentencing. The doctor's report noted that
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5
his mental health symptoms—"depressed, hallucinating, and suicidal"—
resulted from the stress of his convictions. There was no indication of a
psychosis prior to his conviction or of any mental health condition that would
affect his mental capacity. In sentencing defendant, the trial court did not find
that mitigating factor four 3 applied because no evidence supported it. We agree
with the PCR court that defendant did not demonstrate that a second evaluation
would prove diminished capacity existed prior to his conviction.
Defendant contends his trial counsel did not explain that he could testify
at trial or permit him to testify. We agree with the PCR court that this claim
was procedurally barred under Rule 3:22-5 because it was addressed in
defendant's direct appeal where we found no constitutional violation. J.P.G.,
slip op. at 8. If fact, our review of the transcript of the trial showed that
defendant testified he discussed the issue with his attorney and then told the
court more than once that he did not want to testify.
Thus, we are satisfied from our review of the record that defendant failed
to make a prima facie showing of ineffectiveness of trial counsel within the
Strickland/Fritz test. Accordingly, the PCR court correctly concluded that an
3
In sentencing a defendant, the court may consider if "[t]here were substantial
grounds tending to excuse or justify the defendant's conduct, though failing to
establish a defense." N.J.S.A. 2C:44-1(b)(4).
A-5485-17T4
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evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-
63 (1992).
Defendant's further arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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