STATE OF NEW JERSEY VS. ANTHONY F. ANGUILLA (10-03-0322, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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 o ther cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0747-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY F. ANGUILLA,
a/k/a ANTHONY FAUOSTO
ANGUILLA, and ANTHONY
E. ANGUILLA,
Defendant-Appellant.
______________________________
Submitted February 25, 2020 – Decided March 18, 2020
Before Judges Hoffman and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 10-03-
0322.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (Joie D. Piderit,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Anthony F. Anguilla appeals from a July 9, 2018 Law Division
order denying his petition for post-conviction relief (PCR) alleging ineffective
assistance of counsel without an evidentiary hearing. We affirm.
I.
Defendant sexually abused his stepdaughter Alice 1 when she was eight
years old and continued until she was seventeen years old. In March 2010, a
Middlesex Grand Jury returned an indictment charging defendant with first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (counts one and two);
second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts three and four);
second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts
five and six); and first-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(b)(3) (count seven).
Defendant's first trial in 2011 resulted in a hung jury. On July 10, 2012,
the retrial resulted in an acquittal of all counts except for one count of second-
degree sexual assault (count three). On July 17, 2012, the trial court conducted
1
We use a fictitious name to protect the identity of the victim.
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2
an in camera proceeding with a juror regarding concerns about the verdict in the
presence of the assistant prosecutor and defense counsel. The in camera
proceeding did not reveal any improper conduct. The juror had some misgivings
about the verdict but stated there was no misconduct during the jury's
deliberations.
On December 14, 2012, defendant was sentenced to a seven-year term of
imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We affirmed defendant's conviction and sentence on May 27, 2015. State v.
A.F.A., No. A-2156-12 (App. Div. May 27, 2015) (slip op. at 1-2). We
incorporate, by reference, the facts stated in our prior opinion.
On October 27, 2017, defendant filed a pro se petition for PCR. The court
appointed counsel to represent defendant, and counsel filed a brief in support of
the petition, alleging ineffective assistance of trial counsel.
On July 9, 2018, the PCR court heard oral argument on the petition and
denied relief in an oral opinion and a confirmatory written order. During oral
argument, the PCR judge noted his difficulty in ruling on defendant's PCR
petition in the absence of trial transcripts, and stated he could not recall the
specifics of the trial, which he presided over seven years earlier. Nonetheless,
A-0747-18T4
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the court determined that defendant had not been denied the effective assistance
of counsel, and an evidentiary hearing was not required.
Defendant appeals and raises the following arguments:
POINT ONE
MR. ANGUILLA IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO
CHALLENGE THE FRESH COMPLAINT AND
CSAAS[2] WITNESSES AND INSTRUCTIONS.
POINT TWO
THE PCR COURT ERRONEOUSLY RULED THAT
MR. ANGUILLA'S PETITION WAS
PROCEDURALLY BARRED.
POINT THREE
THIS MATTER MUST BE REMANDED FOR
FINDINGS OF FACT AND CONCLUSIONS OF
LAW ON MR. ANGUILLA'S PRO SE CLAIMS.
Based upon our review of the record, we are convinced that defendant's
arguments are entirely without merit. We affirm the denial of PCR substantially
for the reasons stated by the PCR court in its oral opinion. We add the following.
2
Child Sexual Abuse Accommodation Syndrome (CSAAS).
A-0747-18T4
4
II.
"A petitioner must establish the right to [post-conviction] relief by a
preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459
(1992) (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). To sustain that
burden, the petitioner must set forth specific facts that "provide the court with
an adequate basis on which to rest its decision." Mitchell, 126 N.J. at 579.
A defendant must prove two elements to establish a PCR claim that trial
counsel was constitutionally ineffective: first, "that counsel's performance was
deficient[,]" that is, "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment[;]" second, that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); accord
State v. Fritz, 105 N.J. 42, 52, 60-61 (1987). "A reasonable probability is a
probability sufficient to undermine confidence in the outcome." State v. Harris,
181 N.J. 391, 432 (2004) (quoting Strickland, 466 U.S. at 694).
To prove the first element, a defendant must "overcome a 'strong
presumption' that counsel exercised 'reasonable professional judgment' and
'sound trial strategy' in fulfilling his responsibilities." State v. Nash, 212 N.J.
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518, 542 (2013) (quoting State v. Hess, 207 N.J. 123, 147 (2011)). To prove the
second element, a defendant must demonstrate "how specific errors of counsel
undermined the reliability of the finding of guilt." United States v. Cronic, 466
U.S. 648, 659 n.26 (1984).
PCR courts are not required to conduct evidentiary hearings unless the
defendant establishes a prima facie case and "there are material issues of
disputed fact that cannot be resolved by reference to the existing record . . . ."
R. 3:22-10(b). "To establish such a prima facie case, the defendant must
demonstrate a reasonable likelihood that his or her claim will ultimately succeed
on the merits." State v. Marshall, 148 N.J. 89, 158 (1997). Speculative
assertions are insufficient to establish a prima facie case of ineffective assistance
of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
Applying these well-settled standards of review, we affirm the PCR judge's
denial of defendant's petition.
The PCR court found that defendant's attempt to re-argue the fresh
complaint evidence and CSAAS expert testimony was barred under Rule 3:22-
5 because defendant raised these issues on direct appeal. In that appeal,
defendant argued that, "[i]n this delayed disclosure case, the delivery of a fresh
complaint instruction, which told the jurors that testimony about Alice's belated
A-0747-18T4
6
disclosures was admitted in order to negate any inferences from her assumed
silence that the offense did not occur," deprived him of his rights to due process
and a fair trial. We determined that the issue raised on appeal was invited error
and was not clearly capable of producing an unjust result under Rule 2:10-2.
Defendant raised no objection to the admission of fresh complaint evidence at
trial or to the substance of the jury charge on this issue. Therefore, we concluded
that defendant tacitly acknowledged Alice made the disclosure "within a
reasonable time after the alleged assault," citing State v. R.K., 220 N.J. 444, 455
(2015).
Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any
ground for relief is conclusive whether made in the proceedings resulting in the
conviction or in any post-conviction proceeding brought pursuant to this rule
. . . ." Therefore, a prior adjudication of any issue, particularly those addressed
on direct appeal, will ordinarily bar PCR. Harris, 181 N.J. at 494. The PCR
court aptly found the fresh complaint testimony argument was procedurall y
barred under Rule 3:22-5 because we already addressed it.
In addition, the PCR court rightly determined that we found the jury
charge on fresh complaint evidence and CSAAS did not constitute error.
Therefore, the PCR court correctly found that defendant was precluded by Rule
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3:22-5 from relitigating his claims on fresh complaint evidence and CSAAS.
Moreover, the PCR court noted that defendant failed to show how trial counsel's
conduct prejudiced defendant.
The PCR court pointed out that defendant's petition was devoid of any
certification to support his claims. We find no merit to defendant's claim that
the in camera interview of the juror who came forward after the verdict espoused
some injustice warranting reversal. The PCR court, which was also the trial
court, was satisfied the subject juror did not present any evidence of taint or
bias. In addition, the PCR court was satisfied the verdict was fair and impartial
because the juror reported no misconduct by any of the other jurors.
We are convinced there is sufficient credible evidence in the record to
support the PCR court's denial of defendant's PCR petition as barred by Rule
3:22-5.
III.
Lastly, defendant argues that the matter should be remanded to the PCR
court because the judge did not address the claims asserted in his pro se petition.
Defendant argues the PCR court did not make findings of fact or conclusions of
law under Rules 3:22-11 and 1:7-4(a) relative to his claims.
A-0747-18T4
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In addition to the claims we already addressed, defendant argues that his
trial counsel provide ineffective assistance by failing to: (1) call witnesses; (2)
investigate adequately; (3) expose the victim's attempt at a recantation; (4)
present alibi evidence; (5) move for a mistrial; (6) argue adequately at
sentencing; and (7) object to Rule 404(b) evidence that sexual abuse took place
in Brooklyn.
Defendant also seeks relief based upon alleged prosecutorial misconduct
and insufficient evidence to support the verdict. Defendant's PCR counsel did
not address these pro se arguments presented by defendant before the PCR court
at oral argument.
We decline to address those arguments because defendant raises them for
the first time on appeal. See State v. Robinson, 200 N.J. 1, 20 (2009) (citing
Nieder v. Royal Indem. Ins., 62 N.J. 229, 234 (1973)). Moreover, on the merits,
our careful review of the 2012 trial record provides sufficient evidence to
support the verdict.
Defendant further contends that the PCR court abused its discretion by
ruling on his petition without an evidentiary hearing. However, a hearing was
not required in this matter because defendant failed to present a prima facie case
of ineffective assistance of counsel. See Preciose, 129 N.J. at 462. Furthermore,
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defendant has not shown "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. He was unable to demonstrate the required
prejudice. Defense counsel's performance resulted in a not guilty verdict on six
of seven counts.
Our Supreme Court has directed that a hearing should be conducted only
if there are disputed issues as to material facts regarding entitlement to PCR that
cannot be resolved based on the existing record. State v. Porter, 216 N.J. 343,
354 (2013). We conclude that no evidentiary hearing was required here.
Any arguments asserted by defendant that we have not addressed are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
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