STATE OF NEW JERSEY VS. T.J.D.(07-03-0576, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-0267-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
T.J.D.
Defendant-Appellant.
_____________________________________________________________
Submitted April 25, 2017 – Decided June 14, 2017
Before Judges Gilson and Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment No.
07-03-0576.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated Counsel,
on the brief).
Robert D. Bernardi, Burlington County Prosecutor,
attorney for respondent (Jennifer Paszkiewicz,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant T.J.D. appeals from the Law Division order denying
his petition for post-conviction relief (PCR) without conducting
an evidentiary hearing. We affirm, substantially for the reasons
expressed by Judge Terrence R. Cook, in his comprehensive and
well-reasoned June 17, 2014 written opinion.
I.
Defendant's convictions arose out his sexual assaults of his
two young children J.D., his daughter, and T.D., his son. A
Burlington County Grand Jury, in a ten-count indictment, charged
defendant with first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a)(1) (Count One); second-degree attempted aggravated
sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(1) (Count
Two); four counts of second-degree sexual assault, N.J.S.A. 2C:14-
2(b) (Counts Three, Four, Six and Seven); two counts of second-
degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)
(Counts Five and Eight); third-degree aggravated assault of a law
enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a) (Count Nine); and,
third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (Count
Ten).
Following a three-day trial, the jury found defendant guilty
of all charges. At sentencing, the court imposed an aggregate
forty-nine year custodial sentence, with an eighty-five percent
parole disqualifier, pursuant to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2 on certain offenses. The court also imposed
fines and penalties and ordered defendant to comply with all
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applicable provisions of Megan's Law, N.J.S.A. 2C:7-1 to -23,
including parole supervision for life in connection with Counts
One, Two, Three, Five, Six, Seven and Eight.
On direct appeal, defendant challenged various evidentiary
rulings made by the trial court, the constitutionality of N.J.S.A.
2C:14-2(a)(1), the validity of the endangerment convictions, and
the sentences imposed, which defendant claimed were excessive. We
affirmed the convictions and sentences imposed. State v. T.J.D.,
No. A-0041-10 (App. Div. October 11, 2012). The Supreme Court
denied certification. State v. T.J.D., 213 N.J. 537 (2013).
In May 2013, defendant, appearing pro se, filed his first
petition seeking PCR based upon his claim of ineffective assistance
of counsel in six areas: (1) trial counsel's failure to hire an
investigator to assist in pre-trial investigation and preparation
of his defense; (2) trial counsel's failure to investigate his
work records, which would show that he worked nights and,
therefore, could not have been home at night as alleged; (3) trial
counsel's failure to retain an expert to address the significance
of the lack of physical evidence; (4) trial counsel's failure to
consult or hire an expert in the area of child psychology; (5)
trial counsel's failure to investigate, interview, and call
critical witnesses to rebut evidence presented by the State; and,
(6) trial counsel's failure to present to the prosecutor his
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willingness to enter into a stipulation and take a polygraph.
After defendant was appointed assigned counsel, his attorney
filed a formal brief in support of defendant's pro se petition.
In addition to incorporating defendant's points advanced in
support of PCR, PCR counsel raised additional points, arguing that
defendant was denied the effective assistance of counsel due to:
(1) trial counsel's failure to challenge the testimony of J.D.,
the State's key witness, with her prior recantation and also
challenge her testimony pursuant to State v. Michaels, 136 N.J.
299 (1994); (2) trial counsel's failure to call the doctor who
examined J.D. and found no physical evidence of sexual assault;
and (3) trial counsel's cumulative errors.
The PCR judge conducted oral argument and subsequently issued
a written opinion, rejecting all of defendant's claims. The
present appeal followed.
On appeal, defendant raises one point:
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.
We disagree.
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II.
To show ineffective assistance of counsel, a defendant must
satisfy the two-pronged test of Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and
adopted in State v. Fritz, 105 N.J. 42, 58 (1987). "The defendant
must demonstrate first that counsel's performance was deficient,
i.e., that 'counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant by the Sixth
Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693). In so doing, "a defendant must overcome a strong
presumption that counsel rendered reasonable professional
assistance." Ibid. Second, "a defendant must also establish that
the ineffectiveness of his attorney prejudiced his defense. 'The
defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different.'" Id. at 279-80 (quoting
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.
2d at 698).
"A defendant shall be entitled to an evidentiary hearing only
upon the establishment of a prima facie case in support of post-
conviction relief[.]" R. 3:22-10(b). "To establish such a prima
facie case, the defendant must demonstrate a reasonable likelihood
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that his or her claim will ultimately succeed on the merits."
State v. Marshall, 148 N.J. 89, 158, (emphasis added) cert. denied,
522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Examined under the lens of this precedent, most of defendant's
claims related to trial counsel's performance center around trial
strategy decisions. Trial strategy must be objectively
reasonable, not successful. See State v. Castagna, 187 N.J. 293,
314-15 (2006). "'[J]udicial scrutiny of counsel's performance
must be highly deferential[,]'. . . [and] must avoid second-
guessing defense counsel's tactical decisions . . . under the
'distorting effects of hindsight.'" Marshall, supra, 148 N.J. at
157, (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at
2065, 80 L. Ed. 2d at 694). Merely because the trial strategy
employed fails to achieve the desired result does not mean that
counsel was ineffective. See, e.g., State v. Davis, 116 N.J. 341,
360 (1989).
In his certification, which the PCR judge credited, trial
counsel explained the rationale for his trial strategy. The PCR
judge concluded that the manner in which trial counsel cross-
examined J.D., who was nine years old at the time she testified,
reflected a "well[-] thought[-]out," strategic decision to not
pursue aggressive "cross-examination" of J.D. PCR counsel argued
that J.D. should have been confronted with recantations of her
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allegations contained in the records of the New Jersey Division
of Child Protection and Permanency (Division).
As the PCR judge observed, however, trial counsel elicited
inconsistencies between J.D.'s testimony and the statement he gave
to the police. Consequently, even without confronting J.D. with
the Division's record, trial counsel was able to challenge J.D.'s
credibility without opening the door for the State to present
other evidence in the Division's records, which PCR counsel
acknowledged would have been damaging to defendant. We agree, as
the PCR judge concluded, trial counsel exhibited sound and
reasonable trial strategy in this regard.
Addressing defendant's claim that trial counsel was
ineffective for failing to ask for a Michaels hearing to assess
the trustworthiness of J.D.'s statements to Dr. Cindy DeLago of
the New Jersey Cares Institute, who examined J.D. following the
disclosure of the sexual assault, the court noted the record
demonstrated that trial counsel raised the Michaels issue during
an evidentiary hearing before the trial court. Additionally, the
court pointed out that Dr. Delago did not testify at the trial and
J.D.'s statement to her was never introduced into evidence. Thus,
the PCR judge reasoned that defendant suffered no prejudice as a
result of his daughter's statement to Dr. DeLago. The record
supports this conclusion.
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In finding that trial counsel was not ineffective for failing
to produce Dr. DeLago to testify relative to the absence of any
physical evidence of sexual assault, the court found that had the
doctor testified, her testimony could have been used to open the
door to the doctor recounting the explicit details of the sexual
abuse suffered by J.D. and T.D. The PCR judge concluded that
"trial counsel had sound reason to not introduce such damaging
evidence into trial." Further, the judge observed that trial
counsel through the direct examination of J.D. was able
to emphasize the lack of physical evidence and, during summation,
"skillfully argued" the lack of physical evidence of any
disturbance, stretching, or abrasion of J.D.'s hymen. These
findings are also supported by the record.
Defendant additionally urged that trial counsel's cumulative
errors justified relief. However, as the PCR judge observed,
defendant's petition failed to specifically "assert what those
errors are."
Finally, defendant claimed that trial counsel was ineffective
because he failed to hire an investigator to assist in pre-trial
investigation and defense preparation. Defendant advanced this
claim without proffering how a defense investigator would have
changed the outcome of the trial. "[W]hen a petitioner claims his
trial attorney inadequately investigated his case, he must assert
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the facts that an investigation would have revealed, supported by
affidavits or certifications based upon the personal knowledge of
the affiant or the person making the certification." State v.
Porter, 216 N.J. 343, 355 (2013) (quoting State v. Cummings, 321
N.J. Super. 154, 170 (App. Div.) (citing R. 1:6-6), certif. denied,
162 N.J. 199 (1999). Defendant failed to meet these requirements.
Our de novo review of the record, in a light most favorable
to defendant, discloses no materially disputed facts that would
justify conducting an evidentiary hearing. Because defendant
failed to establish a prima facie case of ineffective assistance
of counsel, he was not entitled to an evidentiary hearing.
Affirmed.
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