STATE OF NEW JERSEY VS. W.L. (08-05-0808, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3931-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
W.L.,
Defendant-Appellant.
___________________________
Submitted September 16, 2019 – Decided October 7, 2019
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 08-05-
0808.
Joseph E. Krakora, Public Defender, attorney for
appellant (John Vincent Molitor, Designated Counsel,
on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Patrick F. Galdieri, II,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant W.L. 1 appeals from an order denying his post-conviction relief
(PCR) petition challenging his 2010 convictions following a jury trial for 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), and second-degree endangering the welfare of a
child, N.J.S.A. 2C:24-4(a). Based on our review of the record, we are convinced
the PCR court correctly found defendant's petition is time-barred under Rule
3:22-12(a)(1), defendant failed to establish either excusable neglect or that
enforcement of the time-bar will result in a fundamental injustice, R. 3:22-
12(a)(1)(A), and defendant failed to present a prima facie case of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), and
State v. Fritz, 105 N.J. 42 (1987). We therefore affirm.
I.
We set forth facts supporting defendant's convictions in our decision on
his direct appeal, State v. W.L., No. A-4938-09 (App. Div. Mar. 15, 2013) (slip
op. at 3-11), and briefly summarize the pertinent facts here. In January 2008,
defendant resided with his wife, Miranda; their twenty-month-old daughter;
Miranda's eight-year-old daughter Sarah; and Miranda's grandmother Marjorie.
1
We employ initials and pseudonyms to protect the victim's privacy.
A-3931-17T1
2
On January 4, 2008, Sarah played with two other children in the family's
living room. Marjorie entered the room and was told by the other children "that
defendant took Sarah upstairs because '[h]e wanted to show her something.'" Id.
at 4. Marjorie went upstairs, saw the door to defendant's and Miranda's bedroom
door was closed, and "saw no light coming from beneath the closed door." Ibid.
Marjorie opened the door, turned the light on and saw defendant "roll[] off his
bed onto the floor." Ibid. "Sarah was on the bed under the covers." Ibid.
Defendant said he was "looking for directions to assemble a telescope." Ibid.
Marjorie took Sarah downstairs. Ibid.
That evening Sarah told Marjorie "defendant was going to put something
in [her] mouth" and he "touch[ed] [her] down there." Ibid. Sarah said she was
"afraid" to report what occurred and "defendant told her that it was their secret."
Id. at 5. The following day, Miranda and Marjorie reported the incident to their
priest, who later reported it to the police. Ibid.
On January 11, 2008, a Middlesex County Prosecutor's Office detective
interviewed Sarah. Ibid. A video recording of the interview was played for the
jury at trial. Ibid. Sarah testified at trial and detailed four separate incidents
during which she was sexually molested and assaulted by defendant. Id. at 6-7.
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David Rottman testified that during time he spent with defendant in jail,
defendant said that "on two occasions . . . 'he stuck his thing in [Sarah's] mouth.'"
Id. at 6. Rottman also testified that defendant said the "'grandmother . . . found
out[,]' when '[s]he walked in when [he and Sarah] were in the room.'" Ibid.
Defendant testified at trial, denied Sarah's allegations, and explained that
on January 4, 2008, he brought Sarah upstairs to show her a telescope as a
surprise and told her to "'close her eyes and open her mouth[,]' intending to give
her a candy truffle." Id. at 8. He also explained he shut off the light in the
bedroom because his eyes did not "focus in the light the same as in the dark."
Ibid.
The jury convicted defendant of first-degree aggravated sexual assault,
second-degree sexual assault, and second-degree endangering the welfare of a
child. On February 19, 2010, the court sentenced defendant and entered a
judgment of conviction. On defendant's direct appeal, we affirmed his
convictions and remanded for resentencing. Id. at 30. The Supreme Court
denied defendant's petition for certification. State v. W.L., 216 N.J. 8 (2013).
The trial court resentenced defendant and entered an amended judgment of
conviction on July 3, 2013.
A-3931-17T1
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On June 27, 2017, more than seven years after entry of the original
judgment of conviction, defendant filed a pro se PCR petition. Defendant's
assigned counsel filed an amended PCR petition and a twenty-nine-page
supporting brief. The court heard argument, found Rule 3:22-12(a)(1) requires
the filing of a PCR petition no more than five years after entry of the judgment
of conviction, and determined defendant's petition was time-barred because it
was filed seven years and four months after entry of the February 19, 2010
judgment of conviction. The court further found defendant was not entitled to
a relaxation of the five-year time-bar under Rule 3:22-12(a)(1)(A) because he
did not present evidence demonstrating either excusable neglect or that
enforcement of the time-bar would result in a fundamental injustice. The court
rejected defendant's claim that the PCR petition was timely under Rule 3:22-
12(a)(1) because it was filed within five years of the entry of the amended
judgment of conviction.
Although the court found the petition was time-barred, it also addressed
and rejected defendant's claim he was entitled to PCR because his trial counsel
was ineffective. The court noted defendant claimed his counsel was ineffective
by failing to object to: the prosecutor's cross-examination of defendant about
sex toys found in defendant's bedroom; admission of the portions of the
A-3931-17T1
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recording of Sarah's interview during which she referred to defendant striking
Miranda; the prosecutor's disparaging remarks concerning defense counsel's
cross-examination of Sarah; and an investigator's testimony that defendant
"invoked his right to defense."
The court explained that the testimony and prosecutor's comments were
challenged on defendant's direct appeal, and this court determined that neither
deprived defendant of a fair trial. The court also found defendant could not
relitigate the issues because they had been addressed on direct appeal, R. 3:22-
5, and defendant otherwise failed to demonstrate that but for his trial counsel's
alleged errors, there was a reasonable probability the result of his trial would
have been different. The court found defendant did not establish a prima facie
case of ineffective assistance of counsel and entered an order denying
defendant's PCR petition without an evidentiary hearing. This appeal followed.
On appeal, defendant offers the following arguments for our
consideration:
POINT I
THIS COURT SHOULD REVERSE THE TRIAL
COURT'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF
BECAUSE CSAAS EVIDENCE DEPRIVED
DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
A-3931-17T1
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POINT II
PCR COUNSEL WAS INEFFECTIVE BECAUSE HE
DID NOT OFFER ANYTHING DURING ORAL
ARGUMENT[.]
POINT III
THIS COURT SHOULD REVERSE THE TRIAL
COURT'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF AND
REMAND THE MATTER FOR AN EVIDENTIARY
HEARING[.]
A. DEFENDANT'S TRIAL ATTORNEY FAILED TO
OBJECT TO THE PROSECUTOR'S REFERENCE TO
"SEX TOYS"[.]
B. DEFENDANT'S TRIAL ATTORNEY SHOULD
HAVE OBJECTED TO THE PROSECUTOR'S
DECISION TO COMPEL DEFENDANT TO
CHARACTERIZE [SARAH] AS A LIAR[.]
C. DEFENDANT'S TRIAL ATTORNEY DID NOT
CHALLENGE THE ADMISSION OF BAD ACTS
EVIDENCE AND DID NOT DEMAND A CURATIVE
INSTRUCTION[.]
D. DEFENDANT'S TRIAL ATTORNEY SHOULD
NOT HAVE PERMITTED THE PROSECUTOR TO
DISPARAGE HIM AND HIS ARGUMENT[.]
E. DEFENDANT'S TRIAL ATTORNEY SHOULD
NOT HAVE [PERMITTED] THE PROSECUTOR TO
ELICIT TESTIMONY ABOUT DEFENDANT'S
DECISION TO INVOKE HIS RIGHT AGAINST
SELF-INCRIMINATION [.]
A-3931-17T1
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II.
We "conduct a de novo review" of the court's order because it denied
defendant's PCR petition without an evidentiary hearing. State v. Jackson, 454
N.J. Super. 284, 291 (App. Div.) (quoting State v. Harris, 181 N.J. 391, 421
(2004)), certif. denied, 236 N.J. 35 (2018). Under that standard, we first address
the court's determination that the petition is time-barred under Rule 3:22-
12(a)(1). Defendant does not challenge the court's conclusion that he failed to
timely file his petition as required under the Rule and did not present any
evidence showing either excusable neglect or a fundamental injustice permitting
a late filing under Rule 3:22-12(a)(1)(A). Thus, defendant has waived any claim
that the court erred by dismissing the PCR petition because it is time-barred.
See Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div.
2008) (explaining that an issue not briefed on appeal is waived).
Nonetheless, we have reviewed the record and are satisfied the court
correctly determined that defendant's PCR petition is time-barred under Rule
3:22-12(a)(1)(A). In pertinent part, the Rule provides that:
no petition shall be filed pursuant to this rule more than
5 years after the date of entry . . . of the judgment of
conviction that is being challenged unless:
(A) it alleges facts showing that the delay beyond said
time was due to defendant's excusable neglect and that
A-3931-17T1
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there is a reasonable probability that if the defendant's
factual assertions were found to be true enforcement of
the time bar would result in a fundamental injustice….
[R. 3:22-12(a)(1)].
The prescribed five-year period "commences when the judgment of conviction
is entered and is generally neither stayed nor tolled by an appellate or other
proceeding." State v. Murray, 162 N.J. 240, 249 (2000).
Defendant filed his petition more than seven years after his February 19,
2010 judgment of conviction. He argued before the PCR court that the petition
was timely because it was filed within five years of the July 3, 2013 amended
judgment of conviction entered after his resentencing. The court correctly
rejected the argument because "a petition for [PCR] must be filed within five
years of entry of the judgment memorializing the conviction even if further trial
proceedings relating to the sentence are conducted during the interim period."
State v. Dugan, 289 N.J. Super. 15, 20 (App. Div. 1996); see State v. Cann, 342
N.J. Super. 93, 102 (App. Div. 2001) (noting that "in considering [Rule 3:22-
12(a)(1)]'s time-bar, the date of the judgment of conviction controls even if there
are subsequent sentencing proceedings"). Thus, defendant's PCR petition was
filed beyond Rule 3:22-12(a)(1)'s five-year time-bar.
A-3931-17T1
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A court may review a PCR petition filed more than five years after the
date of the judgment of conviction in the narrow circumstance where the petition
"alleges facts showing that the delay beyond said time was due to defendant's
excusable neglect and that there is a reasonable probability that if the defendant's
factual assertions were found to be true enforcement of the time bar would result
in a fundamental injustice." R. 3:22-12(a)(1)(A). To satisfy the Rule's
requirements, "[t]he petition itself must allege the facts relied on to support the
claim." State v. Mitchell, 126 N.J. 565, 577 (1992).
Defendant's submissions to the PCR court are bereft of any facts showing
excusable delay for the late filing of his petition. Indeed, defendant did not
address the late filing of his petition in any manner other than by erroneously
arguing it was filed within five years of the entry of the amended judgment of
conviction. "Ignorance of the law and rules of court does not qualify as
excusable neglect," State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002)
(citing Murray, 162 N.J. at 246), aff'd o.b., 365 N.J. Super. 82, 84 (App. Div.
2003), and an otherwise untimely PCR petition "is time-barred if it does not
claim excusable neglect, or allege the facts relied on to support that claim,"
Cann, 342 N.J. Super. at 101-02 (citing Mitchell, 126 N.J. at 577); accord State
v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009) ("[T]o overcome the
A-3931-17T1
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procedural bar in [Rule] 3:22-12, defendant must show that the delay in filing
the PCR petition was attributable to excusable neglect.").
Defendant also failed to establish there is a reasonable probability that
enforcement of the time-bar would result in a fundamental injustice. R. 2:22-
12(a)(1)(A). There is a fundamental injustice "when the judicial system has
denied a 'defendant with fair proceedings leading to a just outcome' or when
'inadvertent errors mistakenly impacted a determination of guilt or otherwise
wrought a miscarriage of justice.'" State v. Nash, 212 N.J. 518, 546 (2013)
(quoting Mitchell, 126 N.J. at 587). Thus, to satisfy the fundamental-injustice
prong of the Rule 2:22-12(a)(1)(A) standard, a defendant "must make 'some
showing' that an error or violation 'played a role in the determination of guilt.'"
Id. at 547 (quoting State v. Laurick, 120 N.J. 10, 13 (1990)). Defendant made
no such showing here.
We are therefore satisfied the court correctly denied the PCR petition as
untimely under Rule 2:22-12(a)(1) and that defendant did not present any facts
permitting a late filing of the petition under Rule 2:22-12(a)(1)(A). As noted,
defendant does not argue to the contrary. For those reasons alone, we affirm the
court's denial of defendant's petition.
A-3931-17T1
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We also are convinced the record required a denial of the petition for the
separate but equally dipositive reason that defendant failed to present facts
establishing a prima facie case of ineffective assistance of counsel under the
Strickland standard. Under Strickland, a defendant first must show that his or
her attorney's handling of the matter "fell below an objective standard of
reasonableness." 466 U.S. at 687-88. A defendant also must show that there
exists a "reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 694. A defendant
must establish both prongs of the standard to obtain a reversal of the challenged
conviction. Id. at 687; Nash, 212 N.J. at 542.
Defendant argues his trial counsel was ineffective by failing to object to
the prosecutor's closing argument that was critical of defense counsel's cross-
examination of Sarah. Defendant also claims his counsel was ineffective by
failing to object to the prosecutor's cross-examination of defendant about sex
toys found in his bedroom, defendant's opinion about the veracity of Sarah's
statements, and defendant's relationship with a woman who was not his wife;
Sarah's statements in the recorded interview that defendant struck Miranda in
the past; and a police officer's testimony that defendant "invoked his right to a
defense."
A-3931-17T1
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"Although a demonstration of prejudice constitutes the second part of the
Strickland analysis, courts are permitted leeway to choose to examine first
whether a defendant has been prejudiced . . . and if not, to dismiss the claim
without determining whether counsel's performance was constitutionally
deficient." State v. Gaitan, 209 N.J. 339, 350 (2012). We follow that approach
here.
Defendant argues that his trial counsel was ineffective by failing to object
to the same prosecutor's statements and witness testimony that defendant
challenged on his direct appeal. We concluded that although the statements and
testimony were improper, they were neither singularly nor collectively capable
of producing an unjust result and did not deprive defendant of a fair trial. W.L.,
No. A-4938-09, slip op. at 18-25. Based on our finding on direct appeal that
there was no reversible error in the admission of the challenged testimony or the
prosecutor's closing argument, "the failure of trial counsel to object . . . could
not lead to the conclusion that there is a reasonable probability that, but for the
errors of trial . . . counsel, the outcome would have been different." State v.
Echols, 199 N.J. 344, 361 (2009). Because defendant did not sustain his burden
under the second prong of the Strickland standard, his PCR was properly denied
and we need not address the claim that his trial counsel erred by failing to object
A-3931-17T1
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to the challenged testimony and prosecutor's statements. Strickland, 466 U.S.
at 700.
We also do not address the merits of defendant's contention that his trial
counsel was ineffective by failing to object to testimony about Child Sexual
Abuse and Accommodation Syndrome (CSAAS) offered by the State's expert. 2
Our review of alleged trial court errors "is not limitless" and is "bounded by the
proofs and objections critically explored on the record before the trial court by
the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Where, as
here, the "issue never was raised before the [PCR] court, . . . and . . . its legal
propriety never was ruled on by the . . . court, the issue was not properly
preserved for appellate review." Id. at 18-19. Defendant's argument does not
"go to the jurisdiction of the trial court or concern matters of great public
interest," warranting an exception to the general prohibition against deciding an
issue on appeal that was "not properly presented to the trial court." Id. at 20
(quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
2
Defendant did not challenge the admission of the expert's testimony on direct
appeal. See generally R. 3:22-3 (providing that a PCR proceeding is not "a
substitute for an appeal from conviction"); R. 3:22-4 (barring the assertion of a
claim in a PCR proceeding that was not raised on an appeal from the conviction
unless one of three enumerated exceptions apply).
A-3931-17T1
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Moreover, at defendant's trial counsel's request, the expert's CSAAS
testimony was properly limited by the court to the permissible scope of such
testimony under the law existing at the time of trial. 3 Defendant does not make
any claim to the contrary. Instead, defendant argues his trial counsel erred by
failing to object during his 2009 trial to the admission of portions of the expert's
testimony concerning CSAAS that our Supreme Court first determined was
inadmissible in its 2018 decision in State v. J.L.G., 234 N.J. 265 (2018). In
J.L.G., the Court determined that CSAAS evidence, except as to delayed
disclosure, is not sufficiently reliable to be admissible. Id. at 272.
In J.L.G., the Supreme Court announced a new rule of law that has
pipeline retroactive application. State v. G.E.P., 458 N.J. Super. 436, 444-48
(2019); see also State v. Burstein, 85 N.J. 394, 402-03 (1981) (explaining a
court's options in determining the effect of an announcement of a new rule of
law). The new rule of law therefore is inapplicable to defendant's case because
he exhausted the direct appeals of his conviction in 2013, six years prior to the
Court's decision in J.L.G. See G.E.P., 458 N.J. Super. at 444-48. Defendant
cannot obtain relief from his conviction through a PCR petition where the new
3
The trial court expressly limited the expert's testimony concerning CSAAS to
the parameters established in State v. P.H., 178 N.J. 378 (2004), and State v.
J.Q., 130 N.J. 554 (1993).
A-3931-17T1
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rule of law upon which he relies is not retroactive to his conviction. See State
v. Cupe, 289 N.J. Super. 1, 11 (App. Div. 1996) (explaining that "a case decided
after a defendant's conviction and sentence has become final may not provide
the basis for [PCR] if it announces a new rule of law" unless it is determined the
new rule of law applies retroactively to the defendant's conviction and sentence).
Additionally, defendant's trial counsel's performance was not deficient under the
first prong of the Strickland standard by his reliance on the law defining
permissible CSAAS testimony extant at the time of defendant's trial. See
Strickland, 466 U.S. at 690 (finding "the reasonableness of counsel's challenged
conduct" is judged "on the facts of the particular case, viewed as of the time of
counsel's conduct"); see also State v. Allegro, 193 N.J. 352, 366 (2008) ("In
gauging whether a valid claim of ineffective assistance of counsel has been
presented, 'the court must judge the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed as of the time of counsel's
conduct.'" (quoting State v. Castagna, 187 N.J. 293, 314 (2006))).
Any arguments asserted by defendant that we have not addressed are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
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