STATE OF NEW JERSEY VS. R.S. (12-12-1559, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-1076-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
R.S.,
Defendant-Appellant.
_________________________
Submitted December 4, 2018 – Decided January 15, 2019
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 12-12-
1559.
Joseph E. Krakora, Public Defender, attorney for
appellant (Dianne Glenn, Designated Counsel, on the
brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Alexis R. Agre, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from an August 4, 2017 order denying his petition for
post-conviction relief (PCR) following an evidentiary hearing. We affirm.
I.
In 2001, defendant was arrested based on a reported sexual encounter with
a then-fourteen-year-old victim, K.J. At the time of the alleged encounter
defendant was twenty-nine years old. During the ensuing investigation,
defendant gave a statement to law enforcement officers and admitted that he had
sexual intercourse and oral sex with K.J. A grand jury indicted defendant for
two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), and one
count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
Thereafter, the charges against defendant have been the subject of numerous
proceedings and appeals.
In October 2002, defendant pled guilty to third-degree endangering the
welfare of a child, and he was sentenced to five years of incarceration to be
served at the Adult Diagnostic Treatment Center. Defendant appealed that
sentence, but we affirmed. State v. [R.S.], No. A-5762-03 (App. Div. Dec. 17,
2004).
Following the completion of his prison sentence, defendant was civilly
committed under the Sexually Violent Predator Act (SVPA), N.J.S.A.
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30:4-27.24 to -27.38. Defendant appealed that civil commitment, but we
affirmed. In re Civil Commitment of R.S., No. A-4609-06 (App. Div. Dec. 12,
2008). The Supreme Court denied certification. 198 N.J. 317 (2009).1
In February 2007, defendant filed a petition for PCR, arguing that he did
not knowingly and voluntarily plead guilty because he was not advised that his
conviction could subject him to the potential of lifetime civil commitment under
the SVPA. The PCR court denied that petition, but we remanded for an
evidentiary hearing. State v. R.S., No. A-0161-09 (App. Div. Apr. 1, 2011).
Following the evidentiary hearing, we again reviewed the matter and held that
defendant was entitled to withdraw his guilty plea because he had not been
advised of the potential for indefinite civil commitment. State v. R.S., No. A-
0161-09 (App. Div. July 16, 2012).
Thereafter, in December 2012, a grand jury indicted defendant on three
counts of second-degree sexual assault against K.J., and one count of third-
degree endangering the welfare of a child. Defendant filed a motion to suppress
the statement he had given in 2001. The trial court conducted an evidentiary
hearing on the motion to suppress.
1
Defendant also appealed a subsequent order continuing his civil commitment,
which we also affirmed. In re Civil Commitment of R.S., No. A-2174-12 (App.
Div. Aug. 7, 2014).
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At that hearing, three witnesses testified: one of the detectives who
interviewed defendant in 2001; Dr. James Reynolds, a psychiatrist who assessed
defendant's intellectual capacity and opined about his ability to understand and
appreciate the rights he waived; and defendant. The court also listened to
defendant's audio-recorded statement and reviewed a Miranda2 warnings card
defendant had signed. The court then found that defendant had knowingly,
voluntarily, and "competently" waived his Miranda rights and denied the motion
to suppress his statement.
In 2013, the matter proceeded to trial. As part of its evidence, the State
played the audio-recording of defendant's statement given in 2001. Defendant
elected not to testify at trial and he did not call any witnesses. Accordingly,
Dr. Reynolds did not testify at trial. After hearing all of the evidence, a jury
convicted defendant of three counts of second-degree sexual assault and one
count of third-degree endangering the welfare of a child.
Thereafter, the court sentenced defendant to time already served because
defendant had served more than ten years in prison, which was the maximum
sentence the court could have imposed for a second-degree conviction. In that
regard, the sentencing court explained that it was running the sentences for all
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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of defendant's convictions concurrent to each other. In the judgment of
conviction, the court also stated that "[d]efendant is and shall remain civilly
committed."
Defendant filed a direct appeal of his convictions resulting from the jury
trial. On that appeal, defendant made only one argument. He contended that his
motion to suppress his statement should have been granted because he did not
knowingly, voluntarily, and intelligently waive his right to remain silent. State
v. R.S., No. A-3734-13 (App. Div. Nov. 30, 2015) (slip op. at 4), certif. denied,
224 N.J. 282 (2016). We rejected that argument and affirmed. Ibid.In April 2016, defendant filed the petition for PCR that is the subject of
this appeal. He was assigned counsel and granted an evidentiary hearing.
Before the PCR court, defendant contended that his trial counsel had been
ineffective in a number of ways, including in (1) failing to call Dr. Reynolds to
testify at trial; (2) not objecting to the jury not being wholly constituted when
conducting deliberations; and (3) not timely objecting to the makeup of the jury.
Defendant also argued that his sentence was illegal because he was sentenced to
"remain civilly committed."
At the PCR evidentiary hearing, Dr. Reynolds and defendant's trial
counsel testified. Trial counsel explained that she had made a strategic decision
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not to call Dr. Reynolds because Dr. Reynolds could not definitively state that
defendant lacked the intellectual capacity to give a voluntary waiver of his
rights. Accordingly, trial counsel explained that she believed that
Dr. Reynolds's testimony would have done more harm than good.
The PCR court denied defendant's petition and issued a written opinion
and order on August 4, 2017. The court found that trial counsel was not
ineffective in not calling Dr. Reynolds as a witness at trial because that was a
valid trial strategy. In that regard, the court reasoned that Dr. Reynolds was
unable to provide an expert opinion on whether defendant understood the
Miranda warnings and that was a valid reason for trial counsel not to call him.
The PCR court also reasoned that trial counsel's failure to object to the
jury not being wholly constituted and to the makeup of the jury were not
appropriate issues to be raised on a PCR petition and should have been raised
on direct appeal. Furthermore, the PCR court determined that defendant could
not raise an argument about an illegal sentence on a PCR petition and that issue
needed to be raised as a separate motion. Finally, the PCR court found that all
of defendant's remaining arguments lacked a factual basis, or were based on
unsupported contentions, and, therefore, failed to make a prima facie showing
of ineffective assistance of counsel.
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II.
On this appeal, defendant challenges the denial of his petition for PCR
and makes three arguments. He articulates his arguments as follows:
POINT I – THE TRIAL COURT ERRED IN
DENYING DEFENDANT'S APPLICATION FOR
POST-CONVICTION RELIEF BECAUSE DEFENSE
COUNSEL'S FAILURE TO CALL DR. REYNOLDS
AS A WITNESS IN THE TRIAL WAS NOT TRIAL
STRATEGY, IT WAS INEFFECTIVE ASSISTANCE
OF COUNSEL.
POINT II – THE TRIAL COURT ERRED IN ITS
DETERMINATION THAT THE TRIAL COUNSEL'S
FAILURE TO OBJECT WHEN THE JURY WAS NOT
WHOLLY CONSTITUTED DURING JURY
DELIBERATIONS AND FAILURE TO OBJECT TO
THE MAKE-UP OF THE JURY COULD NOT BE
ADDRESSED IN PETITIONS FOR POST-
CONVICTION RELIEF.
POINT III – THE TRIAL COURT ERRED IN ITS
DETERMINATION THAT POST-CONVICTION
RELIEF WAS NOT THE APPROPRIATE FORUM
TO CHALLENGE A JUDGMENT OF CONVICTION
TO CORRECT AN ILLEGAL SENTENCE.
We are not persuaded by any of these arguments and we affirm.
We use a deferential standard of review on an appeal of a denial of a PCR
petition following an evidentiary hearing. State v. Pierre, 223 N.J. 560, 576
(2015). Accordingly, the factual findings made by a PCR court following an
evidentiary hearing will be accepted if they are based on "sufficient credible
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evidence in the record." Ibid. (quoting State v. Nash, 212 N.J. 518, 540 (2013)).
Legal conclusions are reviewed de novo. Id. at 576-77 (quoting Nash, 212 N.J.
at 540-41).
A PCR petition is cognizable if based on "[s]ubstantial denial in the
conviction proceedings of defendant's rights under the Constitution of the
United States or the Constitution or laws of the State of New Jersey." R. 3:22-
2(a). A defendant may be deprived of his or her constitutional right to counsel
if representation was inadequate. See U.S. Const. amend. VI; N.J. Const. art. I,
¶ 10. To establish a claim of ineffective assistance of counsel, a defendant must
satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687
(1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987).
Under that test, a defendant must prove (1) "counsel made errors so
serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment," and (2) "the deficient performance
prejudiced the defense." Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at
58. A defendant must make those showings by presenting more than "bald
assertions" that he or she was denied the effective assistance of counsel. State
v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
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As to the first prong, "[j]udicial scrutiny of counsel's performance must
be highly deferential." Strickland, 466 U.S. at 689.
A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time.
Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance[.]
[Ibid.]
Furthermore, "strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengable[.]" Id. at 690.
"[A] defense attorney's decision concerning which witnesses to call to the stand
is 'an art,' and a court's review of such a decision should be 'highly deferential.'"
State v. Arthur, 184 N.J. 307, 321 (2005) (citations omitted) (quoting Strickland,
466 U.S. at 689, 693).
As to the second prong, "[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at
691. Thus, to be successful on the second prong, defendant must show a
reasonable probability that, but for counsel's errors, the outcome of his trial
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would have been different; "[a] reasonable probability is a probability sufficient
to undermine confidence in the outcome." Id. at 694. That requirement,
moreover, is "an exacting standard." State v. Allegro, 193 N.J. 352, 367 (2008).
Guided by these legal standards, we turn to defendant's arguments.
Defendant first argues that his trial counsel was ineffective in not calling
Dr. Reynolds to testify at trial. After hearing testimony from both Dr. Reynolds
and defendant's trial counsel, the PCR court found that trial counsel had made a
valid strategic decision not to call Dr. Reynolds. That finding is amply
supported by substantial, credible evidence presented at the evidentiary hearing.
Second, defendant argues that his trial counsel was ineffective in not
objecting when the jury was not wholly constituted during deliberations and in
failing to make a timely objection to the makeup of the jury. The PCR court
held that those issues should have been raised on direct appeal and, therefore,
they were procedurally barred. We agree, but we also point out that
substantively, defendant's arguments lack merit.
A claim for PCR is typically barred where the ground for relief was not
raised in "the proceedings resulting in the conviction, or . . . in any appeal taken
in any such proceedings." R. 3:22-4(a). If a court finds that the ground for relief
"could not reasonably have been raised in any prior proceeding," that
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"enforcement of the bar . . . would result in fundamental injustice," or that a new
rule of state or federal constitutional law requires relief, then a defendant's claim
may be cognizable. R. 3:22-4(a)(1) to (3); see also Nash, 212 N.J. at 546-47
(describing the circumstances under which the bar will not be enforced by a
court).
Defendant alleges that "the actual time that the jury deliberated as a whole
constituted jury is unclear from the record." He then argues that there was only
a short period of time during which the jury deliberated. Finally, he contends
that the jury did not take sufficient time to deliberate as a wholly constituted
jury. That contention concerning the time the jury deliberated could have been
raised on a direct appeal. Asserting that trial counsel was ineffective in failing
to object does not make it a new argument that can now be raised as a ground
for PCR. Moreover, even considering the issue within the framework of
Strickland, the contention about the jury deliberation is based on speculation
and constitutes nothing more than a "bald assertion" that is not supported by the
record. See Cummings, 321 N.J. Super. at 170.
Defendant also argues that his trial counsel was ineffective in not making
a timely objection to the makeup of the jury. Defendant was Caucasian and he
argues that the jury was made up entirely of people who were African-American,
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except for the alternates. Again, the argument about the makeup of the jury
could have been raised on direct appeal, but was not. Furthermore, the only
evidence in the record concerning the racial makeup of the jury suggests that
four out of the twelve jurors were African-American. Therefore, the record
demonstrates that defendant's attorney was not ineffective because there was no
legitimate basis to challenge the composition of the jury.
Finally, defendant argues that his sentence was illegal because he was
sentenced to continue his civil commitment. An illegal sentence may be grounds
for PCR where it "exceeds the maximum penalty provided in the Code for a
particular offense" or it is "not imposed in accordance with law." State v.
Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247
(2000)); see also R. 3:22-2(c).
Here, defendant's claim that his sentence is illegal lacks merit. Defendant
was civilly committed pursuant to the SVPA before his criminal trial. After his
criminal trial, the court sentenced defendant to time served and ordered that
defendant's civil commitment would continue. Defendant contends that that
sentence could result in an indefinite civil commitment. That contention is
without merit. There is no indication in the record that the sentencing court's
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intent was to extend defendant's civil commitment beyond what the existing civil
commitment order contemplated.
Even if defendant's judgment of conviction was interpreted to be an order
continuing defendant's civil commitment, that commitment could not be
indefinite. Under the SVPA, defendant is entitled to annual review of his civil
commitment, see N.J.S.A. 30:4-27.35, and nothing in his judgment of conviction
can be construed to prevent that annual review. Thus, defendant's sentence
returning him to civil commitment until his next review is not illegal.
Affirmed.
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