STATE OF NEW JERSEY VS. L.O.T. (13-05-0268, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-1110-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
L.O.T.,1
Defendant-Appellant.
_______________________
Submitted January 25, 2021 – Decided March 5, 2021
Before Judges Sabatino and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 13-05-
0268.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jennifer E. Kmieciak, Deputy Attorney
General, of counsel and on the brief).
1
We use initials to protect the confidentiality of the victim. R. 1:38-3(c)(12).
PER CURIAM
Defendant appeals from the August 9, 2019 Law Division order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing.
Following a jury trial, defendant was convicted of first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a)(1), and related offenses stemming from his
molestation of his four-year-old daughter. The evidence presented at trial
included the victim's testimony that defendant digitally penetrated her, her
consistent disclosures to her mother, a detective, and a child abuse pediatrician,
as well as defendant's confession to police during a custodial interrogation,
which confession was ruled admissible by the trial court after conducting a
hearing pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
Defendant was sentenced to an aggregate term of fifteen years'
imprisonment, subject to the requirements of the No Early Release Act, N.J.S.A.
2C:43-7.2, and Megan's Law, N.J.S.A. 2C:7-1 to -23, and a special sentence of
parole supervision for life, N.J.S.A. 2C:43-6.4, was imposed. His convictions
and sentence were affirmed on appeal, State v. L.O.T., No. A-0458-15 (App.
Div. Dec. 14, 2017), and the Supreme Court denied his petition for certification,
State v. L.O.T., 233 N.J. 320 (2018).
A-1110-19
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In appealing the denial of his timely PCR petition, defendant raises the
following points for our consideration:
POINT I
THE DEFENDANT WAS DENIED THE RIGHT TO
EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
AS GUARANTEED BY THE SIXTH AMENDMENT
TO THE UNITED STATES CONSTITUTION AND
ART. 1, PAR[.] 10 OF THE NEW JERSEY
CONSTITUTION.
POINT II
THE DEFENDANT IS ENTITLED TO AN
EVIDENTIARY HEARING.
POINT III
THE DEFENDANT IS ENTITLED TO DE NOVO
REVIEW, AND NO DEFERENCE SHOULD BE
GIVEN TO THE ERRONEOUS CONCLUSION
BELOW.
After reviewing the record in light of the applicable legal standards, we affirm
substantially for the reasons articulated by Judge Anthony F. Picheca Jr. in his
well-reasoned written statement of reasons accompanying his August 9, 2019
order denying the petition. We add the following comments for elucidation.
In his pro se PCR petition, defendant asserted he was denied the effective
assistance of counsel based on his attorney's failure to (1) "properly confer with
[him] prior to trial;" (2) "secure favorable affidavits from friends, family,
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employers and other members of the community" and "vigorously argue for
certain mitigating factors on behalf of defendant at sentencing;" and (3) "provide
[him] with . . . full discovery . . . thus effectively preventing [him] from assisting
in the preparation of his defense." After he was assigned counsel, his PCR
attorney submitted an amended petition incorporating defendant's pro se petition
and adding that "trial counsel was ineffective for not conducting any
investigation whatsoever pre-trial through trial and sentencing, as outlined in
his original petition." In his counseled brief, defendant argued that trial counsel
failed to "conduct adequate investigation" into "his severe anxiety which . . . led
him to give a damaging statement to the police" and "never once considered
consulting an expert to determine how this condition effected his client when
interviewed by the police."
In his written decision issued following oral argument, Judge Picheca
applied the governing legal principles and concluded defendant failed to
establish a prima facie case of ineffective assistance of counsel (IAC) by a
preponderance of the evidence. Viewing the facts in the light most favorable to
defendant, the judge found defendant failed to show that either counsel's
performance fell below the objective standard of reasonableness set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our
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Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or that the outcome
would have been different without the purported deficient performance as
required under the second prong of the Strickland/Fritz test.
In expressly rejecting defendant's claims, the judge explained that
defendant "submitted no arguments regarding how an investigation into his
anxiety would have been useful prior to or during trial" and "pointed" to no
"facts that may have been discovered by an investigation." Thus, the judge
concluded that "based upon the information communicated to counsel" about
defendant's anxiety, counsel had no "obligation to investigate further." See State
v. Chew, 179 N.J. 186, 217 (2004) ("[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary." (alteration in original) (quoting Strickland, 466
U.S. at 691)). Turning to the prejudice prong, the judge determined that because
"[e]vidence concerning his anxiety disorder would likely not have led to the
suppression of his incriminating statement, nor . . . affected the outcome of the
trial," defendant failed to establish prejudice.
Next, the judge explained that defendant also "failed . . . to point to any
individual person who would have provided an affidavit on his behalf," "failed
to point to any specific information that would have been elicited by an
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individual," and failed to indicate "how that information would have affected
the sentencing proceedings." Additionally, according to the judge, defendant
failed to "point[] to any specific mitigating factors that may have been found by
the trial court." Instead, defendant made "only . . . vague[ and] bald assertions."
Finally, the judge determined defendant failed to "present any information
regarding how the results of the trial may have been different had trial counsel
visited him prior to trial to discuss the case." The judge explained that instead
of asserting that he had "information unavailable to trial counsel that may have
affected [counsel's] strategy," defendant "again . . . made a bald assertion."
On appeal, defendant renews the arguments rejected by Judge Picheca and
argues he "made a very clear case that entitles him to an evidentiary hearing" on
his IAC claim. However, the mere raising of a PCR claim does not entitle a
defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999). Rather, "view[ing] the facts in the light most favorable
to a defendant," State v. Preciose, 129 N.J. 451, 463 (1992), PCR judges should
grant evidentiary hearings in their discretion only if the defendant has presented
a prima facie claim of IAC, material issues of disputed fact lie outside the record,
and resolution of those issues necessitates a hearing. R. 3:22-10(b); State v.
Porter, 216 N.J. 343, 355 (2013); State v. Marshall, 148 N.J. 89, 158 (1997).
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Moreover, "[a] court shall not grant an evidentiary hearing" if "the
defendant's allegations are too vague, conclusory or speculative," R. 3:22-
10(e)(2), and a defendant "must do more than make bald assertions that he was
denied the effective assistance of counsel." Cummings, 321 N.J. Super. at 170.
Instead, he must support his claims with "affidavits or certifications based upon
the personal knowledge of the affiant or the person making the certification."
Ibid.; see also State v. Jones, 219 N.J. 298, 311-12 (2014) ("In order for a claim
of ineffective assistance of counsel to entitle a PCR petitioner to an evidentiary
hearing, 'bald assertions' are not enough—rather, the defendant 'must allege
facts sufficient to demonstrate counsel's alleged substandard performance.'"
(quoting Porter, 216 N.J. at 355)).
We are satisfied that defendant failed to make a prima facie showing of
IAC within the Strickland/Fritz test to warrant relief, and we discern no abuse
of discretion in Judge Picheca's denial of his petition without an evidentiary
hearing. See State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013)
("[W]e review under the abuse of discretion standard the PCR court's
determination to proceed without an evidentiary hearing."); State v. Reevey, 417
N.J. Super. 134, 146-47 (App. Div. 2010) ("[I]t is within our authority to conduct
a de novo review of both the factual findings and legal conclusions of the PCR
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court" where, as here, no evidentiary hearing was conducted (citations and
internal quotation marks omitted)).
We agree with the judge that defendant's bald, conclusory, and
unsupported assertions are fatal to his petition. Indeed, "[d]efendant must
demonstrate a prima facie case for relief before an evidentiary hearing is
required, and the court is not obligated to conduct an evidentiary hearing to
allow defendant to establish a prima facie case not contained within the
allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 436-
37 (App. Div. 2008).
Affirmed.
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