STATE OF NEW JERSEY VS. SHANE SIMPSON (10-12-2352, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-3635-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHANE SIMPSON,
Defendant-Appellant.
___________________________________
Submitted November 29, 2017 – Decided July 26, 2018
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
10-12-2352.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique D. Moyse, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Lisa
Sarnoff Gochman, of counsel and on the brief).
PER CURIAM
On December 1, 2010, a Monmouth County Grand Jury returned
an indictment against defendant Shane Simpson charging him with
first degree aggravated sexual assault of a seven-year-old child,
identified as C.U., that occurred on April 6, 2010, N.J.S.A. 2C:14-
2(a)(1); three counts of second degree sexual assault of C.U. that
occurred on April 6, April 13, and April 20, 2010, N.J.S.A. 2C:14-
2(b); first degree1 endangering the welfare of a child, C.U., by
causing her to engage in child pornography while in defendant's
care, N.J.S.A. 2C:24-4(b)(3); second degree endangering the
welfare of a child, C.U., by engaging in sexual contact with the
child in a manner that would debauch her morals while having
assumed responsibility for her care, N.J.S.A. 2C:24-4(a); fourth
degree endangering the welfare of a child, C.U., by possessing
child pornography, N.J.S.A. 2C:24-4(b)(5)(b); and fourth degree
failing to register as a convicted sex offender on April 6, 2010,
N.J.S.A. 2C:7-2(a).2
The record shows defendant engaged in extensive and
ultimately unsuccessful motion practice that included: (1) a
motion to sever certain counts in the indictment; (2) a motion to
suppress the admission of self-incriminating statements defendant
had made during a custodial interrogation; (3) a motion to
determine defendant's competency to stand trial and assist in his
1
The State amended this charge to a second degree offense before
the start of trial.
2
Defendant was convicted under previous versions of N.J.S.A.
2C:24-4(a), N.J.S.A. 2C:24-4(b)(3), and N.J.S.A. 2C:24-4(b)(5)(b).
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own defense; (4) a motion to admit evidence allegedly showing that
C.U. was sexually abused when she was three years old; (5)
defendant's pro se motion to compel the Public Defender's Office
to remove the Assistant Deputy Public Defender assigned to
represent him in this case and assign a different attorney;3 and
(6) a motion to recuse the judge from presiding over the trial.
Defendant was tried before a jury between March 21, 2012 and April
5, 2012. The jury found defendant guilty on all counts in the
indictment.
On September 24, 2012, the court sentenced defendant to an
aggregate term of thirty-four years, with a period of parole
ineligibility of twenty-eight years, ten months, and twenty-eight
days, as required by the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2,4 to be served at the Adult Diagnostic and Treatment
3
Defendant's pro se motion to remove the attorney assigned by
the Public Defender's Office to represent him came before the
trial court on February 24, 2012. The judge provided defendant
the opportunity to be heard before denying the motion. Defendant
did not raise this issue on direct appeal.
4
Only certain offenses are subject to NERA. Here, the crime of
first degree aggravated sexual assault requires the court to impose
an eighty-five percent period of parole ineligibility and five
years of parole supervision. Second degree sexual assault requires
the same eighty-five percent period of parole ineligibility, with
a three-year period of parole supervision. See N.J.S.A. 2C:43-
7.2.
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Center (ADTC). See N.J.S.A. 2C:47-3(f). Defendant is also subject
to the registration requirements of Megan's Law, N.J.S.A. 2C:7-2.
We affirmed defendant's conviction on direct appeal in an
unpublished opinion, State v. Shane Simpson, No. A-1697-12 (App.
Div. May 12, 2014) (slip op. at 21). We also affirmed the sentence
imposed by the trial court, with one exception. We sua sponte
remanded the matter for the court to resentence defendant on the
conviction for endangering the welfare of a child under N.J.S.A.
2C:24-4(b)(3) because "the State amended [this charge] to a second-
degree crime prior to the start of trial." Id. at 20-21.
On June 18, 2014, the trial court resentenced defendant on
this charge to a term of eight years, with four years of parole
ineligibility, to be served concurrently to the sentence imposed
for first degree aggravated sexual assault. On June 10, 2014,
defendant filed a pro se post-conviction relief (PCR) petition
alleging, without factual elaboration or citation to relevant
legal authority, the following five grounds for relief: (1) court
error; (2) ineffective assistance of counsel; (3) prosecutorial
misconduct; (4) malicious prosecution; and (5) any other points
assigned counsel deems relevant.
The court assigned counsel to assist defendant in prosecuting
his PCR petition. According to appellate counsel, PCR counsel
filed "supporting briefs" before the PCR court and defendant filed
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a pro se motion seeking the revocation of fines. The matter came
for oral argument before the PCR court on January 29, 2016.
Although the "briefs" referred to by appellate counsel are not
included in the record before us, the PCR judge acknowledged
receipt of "petitioner's brief in support, which was filed on
April 29th, 2015; [and] petitioner's supplemental brief, which was
filed on August 14th, 2015 . . . ." After hearing the arguments
of counsel, the PCR judge reserved decision.
In an order dated February 25, 2016 supported by a memorandum
of opinion, the PCR judge denied defendant's petition. The judge
found that the five claims or bases for PCR defendant listed in
his petition were procedurally barred under Rule 3:22-4, which
states:
Any ground for relief not raised in the
proceedings resulting in the conviction, or
in a post-conviction proceeding brought and
decided prior to the adoption of this rule,
or in any appeal taken in any such proceedings
is barred from assertion in a proceeding under
this rule unless the court on motion or at the
hearing finds:
(1) that the ground for relief not previously
asserted could not reasonably have been raised
in any prior proceeding; or
(2) that enforcement of the bar to preclude
claims, including one for ineffective
assistance of counsel, would result in
fundamental injustice; or
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(3) that denial of relief would be contrary
to a new rule of constitutional law under
either the Constitution of the United States
or the State of New Jersey.
Relying on the Supreme Court's decision in State v. Mitchell,
126 N.J. 565, 583 (1992), the PCR judge found that "none of the
three exceptions to the procedural bar outlined above apply."
Notwithstanding this procedural bar, the PCR judge reviewed
defendant's claims of ineffective assistance of counsel under the
standards established by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984), and subsequently
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987),
and found defendant did not establish a prima facie case for
relief.
Defendant now appeals, raising the following arguments:
POINT ONE
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING ON [DEFENDANT'S] CLAIM
THAT TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE.
POINT TWO
THE $7000 SCVTF PENALTY MUST BE REVOKED OR THE
MATTER REMANDED FOR RECONSIDERATION OF
[DEFENDANT'S] CLAIM THAT IT MUST BE REVOKED.
We reject these arguments and affirm. The PCR court correctly
found defendant's argument are procedurally barred under Rule
3:22-4. Furthermore, defendant's allegations of ineffective
6 A-3635-15T3
assistance based on trial counsel's decision to decline to present
psychiatric evidence are meritless and unsupported by competent
evidence. R. 2:11-3(e)(2). We affirm substantially for the
reasons expressed by the PCR court.
Affirmed.
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