STATE OF NEW JERSEY VS. ROBERT KOSCH (13-05-0188, SUSSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1091-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT KOSCH,
Defendant-Appellant.
__________________________
Submitted December 7, 2021 – Decided December 14, 2021
Before Judges Fisher and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Indictment No. 13-05-0188.
Robert Kosch, appellant pro se.
Robert J. Carroll, Morris County Prosecutor, attorney
for respondent (Paula Jordao, Assistant Prosecutor, on
the brief).
PER CURIAM
After the third of three earlier appeals,1 defendant was sentenced to a
fifteen-year extended prison term subject to a six-year period of parole
ineligibility. He appealed for the fourth time, and we affirmed, State v. Kosch,
No. A-5117-18 (App. Div. Jan. 22, 2020), and a few months after, defendant
filed a post-conviction relief (PCR) petition, arguing, among other things, the
ineffectiveness of his appellate counsel. 2
1
In defendant's first appeal, we reversed three convictions of theft of immovable
property while leaving six other theft convictions intact. State v. Kosch, 444
N.J. Super. 368 (App. Div. 2016). We remanded for a new trial on the three
immovable-theft charges and for resentencing once those charges were finally
resolved. Id. at 393. After that remand, the three immovable-theft charges were
neither retried nor dismissed; the judge instead resentenced defendant on the
other six convictions, imposing the same aggregate sentence and leaving the
three unadjudicated charges in suspended animation. Defendant appealed, and
we reversed because of the trial judge's failure to comply with our mandate about
the three unresolved charges. State v. Kosch, 454 N.J. Super. 440, 444 (App.
Div. 2018). Following that remand, the State voluntarily dismissed the three
immovable-theft charges, and defendant was resentenced to the same aggregate
twenty-year prison term originally imposed. Defendant appealed again. While
we rejected his double jeopardy and due process arguments, we vacated the
judgment of conviction and remanded because it did not appear sufficient
consideration had been given to the absence of the three immovable-theft
matters; as we then rhetorically asked: "how can a defendant, who stands
convicted of less than what he was convicted when originally sentenced, deserve
precisely the same sentence?" State v. Kosch, 458 N.J. Super. 344, 347 (App.
Div.), certif. denied, 240 N.J. 20 (2019). At the sentencing hearing that followed,
Judge David H. Ironson, who had not previously been involved in this matter,
imposed the fifteen-year prison term we affirmed in defendant's fourth appeal.
2
Defendant was represented by counsel in his first appeal, but in all the later
appellate proceedings he represented himself.
A-1091-20
2
Judge Louis S. Sceusi did not conduct an evidentiary hearing but heard
the argument of counsel and denied the PCR petition for reasons expressed in a
nineteen-page written decision. The judge concluded that many of the issues
raised in the PCR petition had been asserted and addressed in defendant's direct
appeal and were therefore procedurally barred. He also held that defendant failed
to present a prima facie case on his other claims.
Defendant appeals, arguing:
I. THIS COURT SHOULD RETAIN JURISDICTION.
II. THE ERRORS COMPLAINED OF HERE ARE
FUNDAMENTAL ERRORS, EITHER STRUC-
TURAL, OR PLAIN AND FATAL, OR INSUR-
M[]OUNTABLE TO THE CONVICTION REQUIR-
ING REVERSAL AND/OR DISMISSAL AS THE
BAR IMPOSED BY THE LOWER COURT IS
VIOLATIVE OF THE STATE AND FEDERAL
CONSTITUTION OFFENDING RULE 3:22-4([a])(1)
(2) & (3).
IIA. THE LACK OF FUNDAMENTAL FAIRNESS IN
THESE PROCEEDINGS IS SUFFICIENT FOR THIS
TRIBUNAL TO VACATE[] OR DISMISS THE
INSTANT CHARGES.
III. APPELLATE COUNSEL'S REPRESENTATION
FELL BELOW CONSTITUTIONAL STANDARDS
MAKING HIS REPRESENTATION INEFFECTIVE
IN THIS CASE BY NOT RAISING CLAIMS THAT
THE TRIAL JUDGE FAILED TO RULE ON A
TIMELY FILED MOTION TO DISMISS THE
INDICTMENT, FAILED TO MAKE A RULING ON
A-1091-20
3
DEFENDANT'S MOTION FOR ACQUITTAL AFTER
THE STATE RESTED AND DID NOT PROPERLY
ENGAGE IN THE CREATION OF A JURY CHARGE
ON COUNT 10 DUE TO THE ABSENCE OF A
MODEL JURY CHARGE BY THE ADMINI-
STRATIVE OFFICE OF THE COURTS.
We find insufficient merit in defendant's arguments to warrant further
discussion, R. 2:11-3(e)(2), and we affirm substantially for the reasons set forth
by Judge Sceusi in his thorough and well-reasoned written decision.
Affirmed.
A-1091-20
4