STATE OF NEW JERSEY VS. GEORGE JENEWICZÂ (99-01-0031, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3580-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GEORGE JENEWICZ,
Defendant-Appellant.
_________________________________
Submitted November 1, 2017 – Decided November 30, 2017
Before Judges Fuentes, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
99-01-0031.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant George Jenewicz appeals from a denial of his
petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
We provide the following factual background relative to our
determination. Upon a report of citizen complaints that there was
a dead body in defendant's residence, several South River police
officers responded. Upon their arrival, three officers went to
the front door and knocked, whereupon defendant answered. One of
the officers requested entry, which defendant granted. Once inside
the residence, the officers advised defendant of the report of a
dead body and asked if they could search the residence. Defendant
gave the officers permission while simultaneously muttering, "that
fucking bitch" and urinating in his pants. The search ultimately
lead to the discovery of human remains, later identified as
defendant's girlfriend, E.G.-J., in a garbage bag in the basement.
Defendant was arrested and provided with his Miranda1 rights.
He gave a sworn statement to the police admitting that he shot
E.G.-J. and then dismembered her body. Defendant's version of
events included that he and the victim had a "volatile"
relationship, including assaults committed by E.G.-J. upon him.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2 A-3580-15T1
A forensic investigation confirmed defendant's account of
E.G.-J.'s death and dismemberment, including the location in a
park where the victim's severed arms were located.
At trial, defendant testified alleging self-defense. Other
defense witnesses, including defendant's mother, testified
relative to the argumentative and threatening character of E.G.-
J. A defense toxicology expert testified that E.G.-J., at the
time of the incident, was substantially intoxicated and while in
that condition, would become a "risk taker" whose lack of judgment
could lead to violence.
In 2008, defendant was tried before a jury and convicted of
capital murder, N.J.S.A. 2C:11-3(a)(1)(2); second-degree
possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a);
and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b).
After merging the murder conviction with the weapons possession,
the trial judge sentenced defendant to a term of life imprisonment
with a thirty-year period of parole ineligibility, and a
consecutive term of five years with two-and-a half years of parole
ineligibility for the hindering apprehension conviction.
On direct appeal, we affirmed the conviction and sentence in
an unpublished opinion, State v. Jenewicz, Docket No. A-0013-02
(App. Div. Aug. 8, 2006). The Supreme Court granted defendant's
petition for certification, State v. Jenewicz, 189 N.J. 103 (2006),
3 A-3580-15T1
and thereafter reversed the murder conviction and remanded the
matter for a new trial. State v. Jenewicz, 193 N.J. 440 (2008).
The conviction for hindering apprehension was not disturbed.
Over the course of seven days in September 2008, defendant
was retried before a jury on the murder charge and the possession
of a weapon for unlawful purpose. Defendant was found guilty on
both charges. The trial judge sentenced defendant to life
imprisonment with a thirty-year period of parole ineligibility to
run consecutively to the sentence previously imposed on count
three, and awarded defendant 1597 days of jail time credit pursuant
to Rule 3:21-8. Count two was merged with count one. Appropriate
fines and fees were imposed.
Defendant filed a notice of appeal in June 2009. In an
unpublished opinion, State v. Jenewicz, Docket No. A-5031-08 (App.
Div. Oct. 16, 2013), the judgment of conviction was upheld. The
Supreme Court subsequently denied certification. State v.
Jenewicz, 217 N.J. 304 (2014).
On May 1, 2014, through counsel, defendant filed a petition
for PCR, which was later supplemented by a pro se brief. Following
argument, the PCR judge issued a decision on October 8, 2015,
4 A-3580-15T1
denying the petition without an evidentiary hearing.2 This appeal
followed.
Defendant raises the following points on appeal:
POINT I
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 AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR POST [-]
CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF
COUNSEL'S FAILURE TO UTILIZE
READILY AVAILABLE EXPERT
PSYCHIATRIC TESTIMONY WHICH HAD
BEEN UTILIZED DURING THE FIRST
TRIAL.
C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF
COUNSEL'S FAILURE TO MAKE A MOTION
TO SUPPRESS BASED UPON THE
DEFENDANT'S INABILITY TO PROVIDE A
VALID KNOWING AND VOLUNTARY CONSENT
TO POLICE TO ENTER HIS RESIDENCE.
2
Prior to this petition, defendant's brief notes he filed a
petition for PCR in Nov 2013, which resulted in an order that
denied his petition without prejudice. Thereafter, petition for
certification was denied by the Supreme Court. Defendant then
refiled his petition on May 1, 2014.
5 A-3580-15T1
POINT II
THE TRIAL COURT ERRED IN REJECTING THE
DEFENDANT'S PETITION FOR POST[-]CONVICTION
RELIEF, IN PART, ON PROCEDURAL GROUNDS
PURSUANT TO RULE 3:22-5.
We have closely examined the record in the light of the
contentions posed in this appeal. Our examination included the
considerable amount of evidence, unrelated to the grounds upon
which the PCR petition was based, that supported defendant's
conviction. Upon conclusion of that examination, we affirm
substantially for the reasons set forth by Judge Barry A. Weisberg
in his thorough oral decision. We add only the following.
The test for ineffective assistance of counsel was formulated
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.
Fritz, 105 N.J. 42 (1987). To establish a deprivation of the
Sixth Amendment right to the effective assistance of counsel, a
defendant must satisfy the following two-pronged Strickland/Fritz
test: (1) that counsel's performance was deficient and he or she
made errors that were so serious that counsel was not functioning
effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) that there exists a "reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland,
6 A-3580-15T1
supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
A defendant must overcome a strong presumption that counsel
rendered reasonable professional assistance. State v. Parker, 212
N.J. 269, 279 (2012). If a defendant establishes one prong of
this test, but not the other, the petition for PCR must fail. Id.
at 280. Thus, both prongs of the Strickland/Fritz test must be
satisfied before post-conviction relief may be granted.
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693.
When petitioning for PCR, the defendant must establish by a
preponderance of the credible evidence that he or she is entitled
to the requested relief. State v. Preciose, 129 N.J. 451, 459
(1992). To sustain that burden, the defendant must allege and
articulate specific facts, which "provide the court with an
adequate basis on which to rest its decision." State v. Mitchell,
126 N.J. 565, 579 (1992).
We apply the Strickland standard and review the
reasonableness of counsel's assistance with "a heavy measure of
deference to counsel's judgments." State v. Martini, 160 N.J.
248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104
S. Ct. at 2066, 80 L. Ed. 2d at 695). Judge Weisberg applied this
standard and concluded that the defendant's arguments did not
support a finding of ineffective assistance of counsel.
7 A-3580-15T1
On appeal, defendant argues that the PCR judge erred by
failing to find his trial counsel was ineffective for not utilizing
readily available expert psychiatric testimony and to file a motion
to suppress based upon defendant's inability to provide knowing
and voluntary consent to police to enter his residence. We are
unpersuaded by these arguments.
At the conclusion of the hearing, Judge Weisberg first
addressed the procedural infirmity of the PCR. The judge held
that the arguments relating to the search of his residence were
raised on direct appeal when defendant argued that the bag
containing E.G.-J.'s remains should not have been opened. The
judge further held that since this court considered the legality
of the search on the merits, defendant was barred from re-
litigating the issue on collateral review. R. 3:22-5. From our
review of the record, we agree that the legality of the search of
the garbage bag was litigated on direct appeal. Although the
basis for the argument was not lack of consent, the issue of the
search's validity was clearly determined.
Regarding counsel's alleged ineffectiveness due to not
challenging the consent to search based upon defendant's alleged
intoxicated condition, the PCR judge noted that the trial judge
listened to the tape of defendant's statement and found him to be
cogent and responsive. As such, Judge Weisberg held that
8 A-3580-15T1
defendant's intoxication argument relative to his knowing consent
would have been unsuccessful. We agree.
Notwithstanding the determination that the argument was
procedurally barred, the judge rejected on its merits that the
lack of challenge to defendant's consent affected the outcome of
the search's legality. The judge cited two exceptions to the
search warrant requirement, the emergency aid doctrine and
community caretaking, that would have satisfied the warrantless
search.
Even were we to conclude that not raising the issue of
defendant's consent constituted "ineffective assistance," we agree
with Judge Weisberg that the validity of the search could be
premised on the emergency aid doctrine first enunciated in State
v. Frankel, 179 N.J. 586, cert. denied, 543 U.S. 876, 125 S. Ct.
108, 160 L. Ed. 2d 128 (2004) and later modified in State v.
Edmonds, 211 N.J. 117 (2012).3 That doctrine requires only that
the police possess an objectively reasonable basis to believe that
"there is danger and need for prompt action." Id. at 599 (citation
3
In Edmonds, the Frankel test was modified to remove as a factor
the police officer's subjective motivation predicated upon the
United States Supreme Court decisions in Michigan v. Fisher, 558
U.S. 45, 130 S. Ct. 546, 175 L. Ed. 2d 410 (2009), and Brigham
City v. Stuart, 547 U.S. 398, 126 S. Ct. 1943, 164 L. Ed. 2d 650
(2006).
9 A-3580-15T1
omitted).4 Here, the report by citizens of a dead body in
defendant's residence (reasonable belief of a need to protect or
preserve life) and finding the remains in the basement (reasonable
nexus between the emergency and the area searched) clearly
satisfied the test enunciated in Frankel and in Edmonds to
5
establish the doctrine.
The judge also found no merit to defendant's claim of
ineffective assistance of appellate counsel for failure to raise
arguments on direct appeal since defendant himself raised those
arguments in his pro se brief. R. 3:22-5.6
Concerning counsel's decision to not call as a defense witness
the expert psychiatrist who testified at the first trial, we note
that the first trial resulted in a conviction even though later
reversed on grounds unrelated to the testimony. We also note that
the issue of E.G.-J.'s mental status and her level of intoxication
were presented to the jury at the second trial. As such, we are
4
Given this determination, we do not need to address the
applicability of community caretaking.
5
The Court in Frankel noted the "oft-quoted words of Chief Justice
(then Judge) Burger in Wayne v. United States, 318 F.2d 205, 212
(D.C. Cir.) cert. denied, 375 U.S. 860, 84 S. Ct. 125, 11 L. Ed.
2d 86 (1963), "[e]ven the apparently dead often are saved by swift
police response."
6
Defendant does not challenge this determination on appeal.
Arguments not raised or briefed on appeal are deemed abandoned.
Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014).
10 A-3580-15T1
satisfied that even had the psychiatric expert testified, there
was not a probability that the outcome of the trial would have
been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct.
at 2068, 80 L. Ed. 2d at 698.
Finally, we agree with the judge's decision to deny
defendant's petition without an evidentiary hearing. An
evidentiary hearing is required where the defendant has shown a
prima facie case and the facts on which he relies are not already
of record. Preciose, supra, 129 N.J. at 462-63; see also Pressler
& Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10
(2016). The mere raising of a claim for PCR does not entitle
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
As defendant failed to establish a prima facie case of ineffective
assistance of counsel, no evidentiary hearing was required.
We conclude our analysis by repeating those precepts that guide
reviewing courts in determining "ineffective assistance of counsel"
claims. Effective representation is not synonymous with errorless
representation. An attorney may give advice that in the lens of
hindsight was debatable or even erroneous. For any error by counsel
to be constitutionally significant, it must undermine the
fundamental fairness of the proceeding. Strickland, supra, 466
U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697. The
11 A-3580-15T1
competency standard enunciated by Strickland is both broad and
flexible. Ibid. It is intended to encompass varied factual
scenarios and circumstances. The proper test is whether counsel's
advice was within the range of competence required of attorneys
in criminal cases. While attorneys are expected to fulfill their
duty of competent representation, a conviction should not be
overturned unless there was a breach of that duty that mattered.
To the extent, if any, trial counsel's performance was deficient,
we hold that it did not result in prejudice to the defense since
there is not a reasonable probability of a different result
sufficient to undermine our confidence in the outcome. See State
v. Arthur, 184 N.J. 307, 319 (2005) (quoting Strickland, supra,
466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697).
Affirmed.
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