STATE OF NEW JERSEY VS. L.J.A. (09-05-0986, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2506-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
L.J.A.,
Defendant-Appellant.
______________________
Submitted February 8, 2021 – Decided March 17, 2021
Before Judges Messano and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 09-05-0986.
L.J.A., appellant pro se.
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant L.J.A. appeals from the denial of his second petition for post-
conviction relief (PCR) without an evidentiary hearing. For the reasons that
follow, we affirm.
I.
Defendant was indicted for sexually abusing his daughter, who was seven
years old when she reported the abuse. The facts underlying defendant's
convictions are described in our prior opinion. See State v. L.J.A. (L.J.A. I),
No. A-0493-11 (App. Div. Dec. 27, 2013) (slip op. at 3-10). Defendant was
convicted by a jury of first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two);
and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)
(count three). He was sentenced to an aggregate, extended term of fifty years in
prison to be served in its entirety. Id. at 24.
We affirmed defendant's conviction and sentence in his direct appeal. Id.
at 31. The Supreme Court reversed the sentence and remanded that issue. State
v. L.J.A., 220 N.J. 565 (2015). We vacated the sentence on count one and
remanded the case to the Law Division for resentencing. State v. L.J.A. (L.J.A.
II), No. A-0493-11 (App. Div. Mar. 31, 2015) (slip op. at 5-6). Defendant was
resentenced to an aggregate, extended term of fifty years in prison subject to an
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eighty-five percent period of parole ineligibility. N.J.S.A. 2C:43-7.2. Nicole's
Law1 was applied. We affirmed the sentence through our excessive sentence
oral argument (ESOA) panel, Rule 2:9-11, but remanded to correct the judgment
of conviction to reflect proper jail and service credits, and to adjust the penalties.
State v. L.J.A. (L.J.A. III), No. A-4598-14 (App. Div. Order Oct. 28, 2015). The
judgment of conviction was amended in November 2015 to include these
changes.
Defendant filed his first PCR petition in August 2015 and supplemented
it in June 2016. Defendant's first PCR petition was denied on October 19, 2016.
Defendant appealed this denial.
In his first PCR appeal, defendant alleged ineffective assistance of his trial
counsel on numerous grounds. Among them, defendant alleged that his trial
counsel should have better cross-examined the State's expert on Child Sex Abuse
Accommodation Syndrome (CSAAS).
We affirmed the first PCR petition denial in a per curiam opinion
"substantially for the reasons expressed" by the first PCR court. State v. L.J.A.
(L.J.A. IV), No. A-1864-16 (App. Div. April 16, 2018) (slip op. at 5). We
concluded defendant's arguments about the ineffectiveness of his trial counsel
1
N.J.S.A. 2C:14-12.
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were "unsupported and [did] not require a hearing." Id. at 5. Defendant's
petition for certification from L.J.A. IV was denied. State v. L.J.A., 235 N.J.
450 (2018).
Defendant filed a pro se second PCR petition on January 26, 2018, while
the appeal of the first PCR denial was pending with us. He argued his confession
to the police should have been suppressed because he told them he wanted to
speak with his fiancée. He claimed his appellate and first PCR counsel should
have raised an issue about the prosecutor's alleged inflammatory and prejudicial
remarks in the closing at the trial. Defendant claimed the cumulative effect of
all the errors denied him a fair trial.
Defendant filed an addendum to his second PCR petition on May 6, 2019,
which was after the first PCR appeal was decided and the Supreme Court had
denied certification. In this addendum, defendant argued that CSAAS testimony
is no longer admissible based on the Supreme Court's decision in State v. J.L.G.,
234 N.J. 265 (2018). 2 He claimed the first PCR court erred by determining the
J.L.G. decision had pipeline retroactivity. Defendant argued his trial attorney
should have called an expert witness to testify that his aunt was leading his
daughter to say that there had been vaginal penetration. He asserted he was
2
J.L.G. was decided on July 31, 2018.
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badgered in his police interview until he "broke" and then confessed. Defendant
argued the testimony at trial about CSAAS was "unlawful" and prejudicial. He
claimed his trial attorney never investigated that defendant was under the
influence of drugs.
Defendant's second PCR petition was denied on November 26, 2019,
without an evidentiary hearing. The PCR court found defendant could have
raised in his first PCR that he alleged his confession was coerced or that his trial
counsel needed to call another witness. The PCR court found a similar argument
about the prosecutor's closing was raised in his first PCR appeal.
The second PCR court found that "[CSAAS] evidence was properly before
the trial court at the time of [defendant's] trial, as the issues with this type of
testimony were not elaborated on by the Supreme Court until its decision in
[J.L.G.], which was decided after [defendant's] first [p]etition for PCR was
denied." The court found trial counsel could not be faulted for not challenging
this evidence at a time before its validity was questioned. The second PCR court
noted that J.L.G. had pipeline retroactivity based on our decision in State v.
G.E.P., 458 N.J. Super. 436 (App. Div. 2019). This meant J.L.G. only applied
to cases on direct review. The second PCR court found defendant's direct review
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of his convictions and sentencing ended on March 31, 2015, which was three
years before J.L.G. was decided.
Defendant appealed the denial of his second PCR petition. On appeal,
defendant raises this issue for our consideration:
DEFENDANT IS ENTITLED TO RETROACTIVE
APPLICATION OF STATE V. J.L.G., 234 N.J. 265(2018); CONSEQUENTLY, THE TRIAL COURT
ERRED IN FAILING TO APPLY J.L.G. TO
DEFENDANT'S SITUATION, NECESSITATING
THE REVERSAL OF DEFENDANT'S UNLAWFUL
CONVICTIONS.
II.
Under Rule 3:22-4, a defendant is barred from raising any issue in a
second PCR petition that could have been raised on direct appeal or in the first
PCR petition unless one of three exceptions apply. The petition must "allege[ ]
on its face" one of the three criteria: (1) the petition "relies on a new rule of
constitutional law . . . that was unavailable during the pendency of any prior
proceedings[,]" (2) "the factual predicate for the relief sought could not have
been discovered earlier through the exercise of reasonable diligence," or (3) the
"petition alleges a prima facie case of ineffective assistance of counsel" of prior
PCR counsel. R. 3:22-4(b)(2)(A)-(C).
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Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any
ground for relief is conclusive whether made in the proceedings resulting in the
conviction or in any post-conviction proceeding . . . or in any appeal taken from
such proceedings." A PCR petition is not "an opportunity to relitigate a claim
already decided on the merits." State v. McQuaid, 147 N.J. 464, 483 (1997)
(citation omitted).
Defendant's appellate brief raised only one issue — the request for
retroactive application of J.L.G. The other issues in defendant's second PCR
petition were not addressed in his merits brief. Because of this, we treat those
issues as abandoned. See Drinker Biddle v. N.J. Dep't of Law & Pub. Safety,
Div. of Law, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (noting claims not
addressed in merits brief are deemed abandoned); see also Pressler & Verniero,
Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020).
We find without merit defendant's argument that J.L.G. should apply
retroactively to his case. "In State v. J.L.G., [the Supreme Court] rejected the
use of CSAAS evidence — with the exception of certain testimony concerning
delayed disclosure — as lacking 'a sufficiently reliable basis in science to be the
subject of expert testimony.'" State v. G.E.P., 243 N.J. 362, 369 (2020) (quoting
J.L.G., 234 N.J. at 272). "Plainly, in J.L.G., [the Supreme Court] announced a
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new rule — 'expert testimony about CSAAS in general, and its component
behaviors other than delayed disclosure, may no longer be admitted at criminal
trials.'" Id. at 385 (quoting J.L.G., 234 N.J. at 272). Recently, the Supreme
Court ruled that J.L.G. has pipeline retroactivity. Id. at 370, 386. This means
the rule applies to a case that is in the direct appeal process, or pipeline, when
the rule becomes effective. Ibid.
Defendant's direct appeal was completed at the earliest on March 2015
when we affirmed his conviction or the latest on October 28, 2015 when the
ESOA panel affirmed his sentence. This was nearly three years before J.L.G.
was decided. Therefore, the second PCR court was correct in holding that J.L.G.
did not provide a basis for relief in defendant's case. Given the timing of these
cases, neither his trial nor appellate counsel were ineffective by not raising the
issue. His first PCR counsel did raise an issue about the CSAAS expert, but we
affirmed the denial of his first PCR petition.
Defendant argues that a different rule should apply because this is a PCR
petition, and that J.L.G. should have full retroactivity. There is nothing in the
G.E.P. opinion that supports this interpretation. More importantly, this
interpretation would undercut the Court's pipeline retroactivity rule by giving
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retroactive application to PCR petitions, but not to direct appeals. We find no
merit in this argument.
We are satisfied from our review of the record that defendant failed to
make a prima facie showing of ineffectiveness of counsel. Accordingly, the
second PCR court correctly concluded that an evidentiary hearing was not
warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992).
Affirmed.
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