STATE OF NEW JERSEY VS. R.N. (11-12-1099, CUMBERLAND COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3815-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
R.N.,1
Defendant-Appellant.
_______________________
Submitted April 26, 2021 – Decided May 18, 2021
Before Judges Sabatino and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 11-12-
1099.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Andre R. Araujo,
Assistant Prosecutor, 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 January 6, 2020 Law Division order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
We glean these facts from the record. In 2011, defendant was charged in
a twenty-three-count indictment with sexual assault and related offenses
involving five different victims. After severance, in 2014, defendant was tried
by a jury and convicted of the first nine counts of the indictment, all of which
pertained to one of the five victims. Specifically, defendant was convicted of
first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count one); first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count two); first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6) (count three); first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (count four); third-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count five); second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count six); third-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven); fourth-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count eight); and
third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count nine).
A-3815-19
2
This appeal is limited to those nine charges and that specific victim, who
was abducted on the street by defendant and brutally and repeatedly raped and
stabbed in a stairwell. Although the victim could not identify her attacker, DNA
evidence linked defendant to the crimes. In 2015, defendant was sentenced to
an aggregate term of thirty-six-years' imprisonment, subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2, a special sentence of parole supervision for
life, N.J.S.A. 2C:43-6.4, and restrictions under Megan's Law, N.J.S.A. 2C:7-1
to -23.
On direct appeal, in an unpublished decision, we vacated one of the
aggravated sexual assault convictions (count two) "[b]ecause the record [did]
not establish that defendant assaulted a third party during his sexual assault of
the victim" as required under N.J.S.A. 2C:14-2(a)(3). State v. R.N., No. A-
5783-14 (App. Div. Dec. 20, 2017) (slip op. at 19). We remanded for "re-
sentencing on the remaining counts." Ibid. Thereafter, the Supreme Court
denied defendant's petition for certification. State v. R.N., 235 N.J. 383 (2018).
On February 16, 2018, defendant was re-sentenced and received the same
aggregate sentence. 2 On December 3, 2018, we affirmed the re-sentence on a
2
Instead of sentencing defendant to consecutive terms of eighteen years each
on counts one and two as originally imposed, at the re-sentencing hearing, the
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Sentence Only Argument (SOA) calendar, finding "that the sentence [was] not
manifestly excessive or unduly punitive and [did] not constitute an abuse of
discretion." See R. 2:9-11.
Thereafter, defendant filed a timely pro se petition for PCR, alleging
ineffective assistance of trial and appellate counsel. With the assistance of
assigned PCR counsel, defendant asserted, among other things, 3 that his trial and
appellate attorneys were ineffective by failing to argue in connection with his
re-sentencing that aggravating factor six did not apply. See N.J.S.A. 2C:44-
1(a)(6) ("The extent of the defendant's prior criminal record and the seriousness
of the offenses of which the defendant has been convicted[.]"). According to
defendant, although he had a juvenile history, he had no prior adult criminal
record, having just turned eighteen when he committed these crimes. Defendant
also argued that his trial and appellate attorneys were ineffective by failin g to
challenge the jury charge on the third-degree aggravated assault offense
trial court sentenced defendant to consecutive terms of eighteen years each on
counts one and three and merged the remaining counts.
3
The other claims raised by defendant in his petition have been abandoned on
appeal. See Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety,
421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (explaining that claims not
addressed in the merits brief are "consider[ed] . . . abandoned").
A-3815-19
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contained in count five where the judge mistakenly referred to defendant, instead
of the State, as having the burden of proof on causation.
On January 6, 2020, the PCR court conducted oral argument, after which,
in an oral opinion, the court rejected both contentions and denied the petition as
"procedurally barred." See R. 3:22-4; R. 3:22-5. The court also determined
there was no requirement for an evidentiary hearing. The court entered a
memorializing order on the same date and this appeal followed.
On appeal, defendant raises the following arguments for our
consideration:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A [PRIMA FACIE]
CASE OF COUNSELS' INEFFECTIVENESS.
A. Trial and Appellate Counsel Failed to
Pursue N.J.S.A. 2C:44-1a(6) as a Non-
Aggravating Factor.
B. Trial and Appellate Counsel Failed to
Pursue the Trial Court's Erroneous
Instruction That Defendant Must Prove
Beyond a Reasonable Doubt That the
Bodily Injury Sustained by the Victim Was
Not So Unexpected or Unusual That It
Would Be Unjust To Find the Defendant
Guilty of Aggravated Assault.
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The mere raising of a PCR claim does not entitle the defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). Rather, while "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 ineffective assistance of counsel (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).
To establish a prima facie claim of IAC, a defendant must satisfy the two-
pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984),
and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987).
Under the Strickland/Fritz test, a defendant must show "by a preponderance of
the credible evidence," State v. Goodwin, 173 N.J. 583, 593 (2002) (citing
Preciose, 129 N.J. at 459), that: (1) "counsel's performance was deficient"; and
(2) "the deficient performance prejudiced the defense." Strickland, 466 U.S. at
687; Fritz, 105 N.J. at 58. The Strickland/Fritz test applies equally to both trial
and appellate counsel. State v. Guzman, 313 N.J. Super. 363, 374 (App. Div.
1998); see also State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987).
A-3815-19
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To establish prejudice, the defendant must show "a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J.
at 52. "A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694. "[A] court making the
prejudice inquiry must ask if the defendant has met the burden of showing that
the decision reached would reasonably likely have been different absent the
errors." Id. at 696. "In particular, a court need not determine whether counsel's
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies." Id. at 697. "If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed." Ibid.
Additionally, a PCR claim is not a substitute for a direct appeal and thus
must overcome procedural bars before it can even be considered on the merits .
R. 3:22-3. To that end, "a defendant may not employ [PCR] to assert a new
claim that could have been raised on direct appeal, Rule 3:22-4, or to relitigate
a claim already decided on the merits, Rule 3:22-5." Goodwin, 173 N.J. at 593;
see State v. McQuaid, 147 N.J. 464, 484 (1997) ("If the same claim is
adjudicated on the merits on direct appeal a court should deny PCR on that issue,
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thereby encouraging petitioners to raise all meritorious issues on direct
appeal.").
Applying these principles to this record, we are satisfied that defendant's
contentions were properly rejected 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, 147 (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 court" where, as here, no
evidentiary hearing was conducted (citations and internal quotation marks
omitted)).
Regarding count five, while reiterating the burden of proof for causation,
defendant correctly points out and the State concedes that the trial court
mistakenly instructed the jury:
In other words, the [d]efendant must prove beyond a
reasonable doubt that the bodily injury sustained by
[the victim] was not so unexpected or unusual that it
would be unjust to find the [d]efendant guilty of
[a]ggravated [a]ssault.
[Emphasis added.]
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Trial counsel failed to object at trial and, despite challenging the jury charge on
appeal, appellate counsel failed to raise this specific error. However, even if
defendant's claim is not procedurally barred, defendant has failed to establish
prejudice as required under the Strickland/Fritz test.
To be sure, "[c]orrect charges are essential for a fair trial," State v. Martin,
119 N.J. 2, 15 (1990), but we "evaluate any alleged error in a portion of a jury
charge in the context of the entire charge." State v. Marshall, 173 N.J. 343, 355
(2002). Here, the single misstatement was fleeting and paraphrased a preceding
instruction that was correct. Further, the trial court correctly instructed the jury
throughout the entire charge that the burden of proving each element of each
offense beyond a reasonable doubt rested on the State and remained on the State
at all times. Consequently, we are satisfied that the verdict reached by the jury
and the outcome of the appeal would not have been different absent the error in
the jury charge.4
Defendant also argues that both his trial and appellate attorneys were
ineffective for failing to challenge the sentence imposed at the re-sentencing
hearing as excessive based on the erroneous application of aggravating factor
4
Notably, count five was merged into count one (attempted murder) at the re-
sentencing hearing.
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six. Given our prior affirmance of the re-sentence based on a finding that the
sentence was not manifestly excessive, unduly punitive, or constituted an abuse
of discretion, we agree with the PCR judge that this claim is procedurally barred.
"[A] prior adjudication on the merits ordinarily constitutes a procedural bar to
the reassertion of the same ground as a basis for post-conviction review."
Preciose, 129 N.J. at 476.
In any event, defendant has again failed to establish prejudice as required
under the Strickland/Fritz test. At the re-sentencing hearing, in addition to
aggravating factor six, the sentencing court found aggravating factor two "as to
the [a]ttempted [m]urder charge," see N.J.S.A. 2C:44-1(a)(2) ("[t]he gravity and
seriousness of harm inflicted on the victim"), and aggravating factors three and
nine as to all the charges. See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the
defendant will commit another offense"); N.J.S.A. 2C:44-1(a)(9) ("[t]he need
for deterring the defendant and others from violating the law"). The court
accorded substantial weight to the aggravating factors and found no mitigating
factors.
Regarding aggravating factor two, the court explained that "after the
victim was already viciously sexually assaulted," she "sustained significant life-
threatening injuries. She was partially disemboweled and sustained multiple
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stab wounds." As to aggravating factor three, acknowledging that defendant had
no "adult record," having turned "[eighteen] years of age" only "five months"
prior to the commission of the offenses, the judge recounted defendant's
extensive juvenile history consisting of "five adjudications [of delinquency],
three [v]iolations of [p]robation, and one violation of [p]arole." As to
aggravating factor nine, the judge found "a need not only for general deterrence
but also specific deterrence . . . in light of [defendant's] past juvenile record."
Further, after analyzing the factors enunciated in State v. Yarbough, 100 N.J.
627 (1985), and characterizing the case as "a[] horrific case," the judge
concluded that "consecutive sentencing [was] appropriate" based on the separate
and distinct "injuries," "objective[s]," and "acts of violence." Thus, we are
satisfied that defendant has not met his burden of showing that the sentence
imposed "would reasonably likely have been different" absent consideration of
aggravating factor six. Strickland, 466 U.S. at 696.
Affirmed.
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