STATE OF NEW JERSEY VS. M.L.S. (12-03-0501, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-2277-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.L.S.,1
Defendant-Appellant.
__________________________
Submitted February 6, 2019 – Decided July 29, 2019
Before Judges Fuentes and Accurso.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 12-03-0501.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel;
William P. Welaj, on the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
1
Pursuant to N.J.S.A. 2A:82-46 and Rule 1:38-3(c)(9), records relating to child
victims of sexual assault or abuse are confidential. We use initials to refer to
defendant because he had a familial relationship to the children-victims in this
sexual abuse case.
Appellant Attorney, of counsel; Shiraz I. Deen,
Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant M.L.S. appeals from the order of the Law Division, Criminal
Part, denying his post-conviction relief (PCR) petition. We affirm.
On March 9, 2012, defendant was indicted by an Ocean County grand jury
and charged with one count of first degree aggravated sexual assault of R.M., a
child under the age thirteen, N.J.S.A. 2C:14-2(a)(1); one count of second degree
sexual assault of R.M., N.J.S.A. 2C:14-2(b); three counts of first degree
aggravated sexual assault of S.M., a child under the age of thirteen, N.J.S.A.
2C:14-2(a)(1); one count of second degree sexual assault of S.M., N.J.S.A.
2C:14-2(b); one count of first degree aggravated sexual assault of T.S., a child
who was over thirteen but less than sixteen years old, and was related to
defendant by blood or affinity to third degree, N.J.S.A. 2C:14-2(a)(2)(a); and
one count of second degree endangering the welfare of a child by knowingly
engaging in sexual conduct with T.S., which would impair or debauch the morals
of a child, N.J.S.A. 2C:24-4(a).
Defendant was tried before a jury over several days in March 2013. On
March 21, 2013, the jury found defendant guilty of seven out of the eight counts
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in the indictment. Specifically, the jury found defendant not guilty of one count
of first degree aggravated sexual assault of S.M. Defendant appeared before the
trial court for sentencing on July 12, 2013. After considering the arguments of
counsel and the information contained in the pre-sentence investigation report,
the court merged the second degree sexual assault convictions with the
convictions for first degree aggravated sexual assaults, and imposed an
aggregate term of twenty years, with an eighty-five percent period of parole
ineligibility, and five years of parole supervision, as required by the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. On the conviction for second degree
endangering the welfare of a child, the court imposed a consecutive term of ten
years, with an eighty-five percent period of parole ineligibility, and three years
of parole supervision, as mandated by NERA.
On direct appeal, this court affirmed defendant's conviction and the
sentence imposed by the trial court. State v. M.L.S., No. A-5889-12 (App. Div.
Sept. 21, 2016), and the Supreme Court denied defendant's petition for
certification. State v. M.L.S., 228 N.J. 473 (2017). On March 23, 2017,
defendant filed a PCR petition alleging ineffective assistance of trial counsel.
Defendant claimed his trial attorney erroneously failed to subpoena records from
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the Division of Youth and Family Services (DYFS)2 that would have allegedly
proved that one of the victims was not residing with defendant at the time of the
sexual assaults. Defendant also claimed his trial counsel failed to call as a
witness a friend of one of the victims who often had overnight visits at the
victim's house. Defendant claims this witness would have testified that she
never saw defendant behave inappropriately.
After oral argument, the PCR judge denied defendant's petition without
an evidentiary hearing. Judge James M. Blaney found defendant did not make
out a prima facie case of ineffective assistance under the two-prong standard
established in Strickland v. Washington, 466 U.S. 668 (1984). The judge found
defendant presented only self-serving assertions in support of his criticism of
his trial counsel's performance. Judge Blaney explained his ruling in a
memorandum of opinion.
Defendant raises the following argument in this appeal:
POINT I
THE POST-CONVICTION RELIEF COURT ERRED
IN DENYING THE DEFENDANT'S PETITION FOR
2
On June 29, 2012, the Department of Children and Families renamed the
Division of Youth and Family Services as the Division of Child Protection and
Permanency (DCPP). L. 2012, c. 16 § 20.
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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 reject this argument and affirm. A PCR petition is our State's analogue
to the federal writ of habeas corpus. State v. Afanador, 151 N.J. 41, 49 (1997)
(citing State v. Preciose, 129 N.J. 451, 459 (1992)). We review a claim of
ineffective assistance of counsel under the two-prong test established by the
United States Supreme Court in Strickland. 466 U.S. at 687. A defendant must
first demonstrate that defense "counsel's performance was deficient." Ibid.
Second, she or he must show there exists "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 694.
A court presented with a PCR petition is not obligated to conduct an
evidentiary hearing. State v. Jones, 219 N.J. 298, 311 (2014). Rule 3:22-10
confers upon the court the discretion to conduct such a hearing only "if a
defendant has presented a prima facie case in support of PCR . . . ." Jones, 219
N.J. at 311 (citing State v. Marshall, 148 N.J. 89, 158 (1997)). Once a prima
facie case has been established, the claims of ineffective assistance of counsel
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ordinarily require consideration of "evidence that lie[s] outside the trial record."
Preciose, 129 N.J. at 460.
Here, defendant merely claimed that certain DYFS records allegedly
contain exculpatory information. Defendant has not offered anything beyond
his bare assertion to support his claim. The PCR court assigned counsel to assist
defendant in prosecuting the petition. PCR counsel could have subpoenaed
these records for in camera review by the PCR judge. PCR counsel could have
also obtained a certification from the alleged overnight guest to support
defendant's claim. However, as Judge Blaney noted in his written decision,
defendant "provided no explanation as to how these alleged DYFS records or
[the witness's] testimony would have favorably influenced his trial."
Defendant's unsupported assertions did not make out a prima facie case of
ineffective assistance of trial counsel under the two-prong Strickland test. Judge
Blaney correctly denied defendant's PCR petition without conducting an
evidentiary hearing.
Affirmed.
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