State v. R.P.D.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. R.P.D., Defendant-Appellant.

DOCKET NO. A-3509-17T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted October 28, 2019

January 15, 2020

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Sabatino and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-04-0832.

Joseph E. Krakora, Public Defender, attorney for appellant (Janet Anne Allegro, Designated Counsel, on the briefs).

Mark Musella, Bergen County Prosecutor, attorney for respondent (Ian C. Kennedy, Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant R.P.D.¹ appeals from a Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Before us, he presents the following arguments:

POINT I THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE LEGAL REPRESENTATION AT THE TRIAL LEVEL SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADDRESS THE TRIAL COURT'S USE OF THE INAPPROPRIATE LEGAL STANDARD REGARDING DEFENDANT'S REQUEST TO PROCEED PRO SE.

A. Ineffective Assistance of Trial Counsel Regarding Defendant's Request to Proceed Pro Se.

B. Ineffective Assistance of Appellate Counsel Regarding Defendant's Request to Proceed Pro Se. (Not Raised Below)

POINT II THE PCR RECORD ESTABLISHED DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF PCR COUNSEL.

POINT III DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE COUNSEL FAILED TO EVEN ATTEMPT TO CONDUCT AN INVESTIGATION AND INTERVIEW OF POTENTIAL WITNESSES AND, THEREFORE, THE PCR COURT ERRED IN FINDING COUNSEL'S DETERMINATION THAT AN INVESTAGTION WOULD BE FRUITLESS WAS REASONABLE.

POINT IV TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO CSAAS TESTIMONY AND TO OBTAIN AN EXPERT TO COUNTER THE TESTIMONY, WHICH WAS PARTICULARLY REQUIRED IN LIGHT OF THE RECENTLY DECIDED CASE, STATE V. J.L.G., 234 N.J. 265 (2018).

In his pro se supplemental brief, defendant argues:

POINT 1 DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION. THE COURT FAILED TO APPLY THE APPROPRIATE LEGAL STANDARD FOR SELF-REPRESENTATION AND ERRED BY NOT ORDERING A NEW TRIAL.

POINT 2 TRIAL ATTORNEY WAS INEFFECTIVE FOR NOT REQUESTING A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE WHICH DIRECTLY EFFECTS RELIABILITY OF THE STATE'S PRIMARY WITNESS'

TESTIMONY REQUIRING A N.J.R.E. 104 HEARING TO ASCERTAIN IF THE NEWLY DISCOVERED EVIDENCE IS A RESULT OF BRADY² VIOLATION.

POINT 3 BASED ON RECENT COURT DECISIONS AND EXPERT TESTIMONY DETERMINED TO BE INADMISSABLED. THE DEFENDANT IS ENTITLED TO BENEFIT FROM FULL RETROACTIVITY OF THE NEW LAW BASED ON THE CIRCUMSTANCES AND THE FACTS OF THE CASE.

Having reviewed the record considering the applicable legal standards, we reverse and remand for retrial.

I

The procedural history and trial evidence are detailed in our unpublished decision affirming defendant's conviction and sentence on direct appeal, State v. R.D., No. A-5735-11 (App. Div. Sept. 20, 2013).³ A brief summary of the relevant facts and proceedings will suffice here.

Defendant was charged with six counts of second-degree sexual assaults upon his daughter while she was under the age of thirteen, N.J.S.A. 2C:14-2(b);three counts of second-degree engaging in sexual conduct that would harm, impair, or debauch the morals of his daughter while under a legal duty to care for her, N.J.S.A. 2C:24-4(a); two counts of first-degree aggravated sexual assault of his daughter while she was under the age of thirteen, N.J.S.A. 2C:14-2(a)(1); one count of third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and one count of third-degree attempt to cause or recklessly cause significant bodily injury to his daughter, N.J.S.A. 2C:12-1(b)(7).

The State's proofs at the February 2012 bench trial essentially showed that defendant repeatedly sexually assaulted his daughter beginning when she was four years old until she reached the age of ten. The State primarily relied upon the testimony of the then fifteen-year-old daughter, who provided a detailed narrative account of the abuse inflicted upon her by her father. The State also presented testimony from the Bergen County Prosecutor Office's investigating detective concerning videotaped interviews of the daughter when she was thirteen years old about the sexual abuse. The detective also testified about her interview of defendant's younger daughter, who denied abuse. Also testifying for the State was its expert, a psychologist who explained the theory of Child Sexual Abuse Accommodation Syndrome (CSAAS) regarding "a child's often counter-intuitive reactions to sexual abuse." State v. W. B., 205 N.J. 588, 611(2011) (citing State v. J.Q., 130 N.J. 554, 579 (1993)). Defendant elected not to testify and did not call any witnesses on his own behalf.

In an extensive oral opinion, the trial judge found defendant guilty of all charges. The judge largely credited the daughter's testimony and indicated there was "no doubt in [his] mind" that accusations of sexual abuse by defendant were truthful. The judge only briefly alluded to the expert's CSAAS testimony and merely noted, in a conclusory fashion, he had taken it into consideration. On July 3, 2012, the judge sentenced defendant to a seventy-year aggregate prison term, subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.

On direct appeal, we upheld defendant's conviction but, with the State's consent, remanded for resentencing. Defendant was subsequently resentenced on May 29, 2014, to an aggregate sixty-two-year prison term subject to NERA. He appealed his new sentence, which was affirmed by an Excessive Sentence on Appeal panel of this court on March 10, 2015.

Defendant thereafter filed a timely PCR petition, contending trial counsel was ineffective for: (1) failing to conduct an adequate investigation and call any witnesses on his behalf; (2) failing to request a pretrial taint hearing under State v. Michaels, 136 N.J. 299, 320 (1994), to determine if his daughter's allegations were tainted by improper investigation techniques; (3) failing to consult with anexpert to refute the State's expert; and (4) failing to file motions requested by defendant. Defendant also contended his constitutional right to represent himself was improperly denied by the motion judge.

The PCR judge denied defendant's claims without an evidentiary hearing. In his written decision, the judge explained trial counsel represented to the trial judge that a CSAAS expert was unnecessary given the State's decision to present one, to which the trial judge agreed. The judge also explained how counsel represented to a different judge at a pretrial conference that after meeting with defendant, an investigator would not be "fruitful or useful" to conduct any additional investigation to identify potential witnesses to refute abuse allegations. The PCR judge also determined defendant was properly denied the right to proceed pro se because he was unable to answer the first three questions posed by the motion judge in assessing his competence to represent himself, and "was unable to prove that his relinquishment of his right [to counsel] was knowing and intelligent." This appeal ensued.

II

To establish a prima facie claim of ineffective assistance of counsel, the defendant must show that: (1) counsel's performance was deficient; and (2) the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687(1984); State v. Fritz, 105 N.J. 42, 58 (1987). A court reviewing a PCR petition based on claims of ineffective assistance has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. State v. Preciose, 129 N.J. 451, 462-63 (1992). The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, 129 N.J. at 462-63. 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).

The main thrust of defendant's appeal is that the PCR judge failed to recognize the motion court did not apply the proper legal standard set forth in State v. Reddish, 181 N.J. 553, 592-95 (2004), to determine whether he would be allowed to exercise his constitutional right to represent himself. Defendant maintains the motion court did not engage in the required colloquy to determine whether he was knowingly and voluntarily waiving his right to counsel, and that this error requires a new trial. He asserts trial counsel was ineffective becausehe failed to argue the proper standard to be applied by the motion court in deciding his request to represent himself, and that appellate counsel failed to contend the motion court applied the incorrect standard. In addition, defendant claims PCR counsel was ineffective because he erred in arguing that defendant rescinded his request to represent himself, which in turn supported the State's position.

A defendant's right to self-representation is well settled. "[A] defendant has a constitutionally protected right to represent himself in a criminal trial." Faretta v. California, 422 U.S. 806, 816 (1975); see State v. DuBois, 189 N.J. 454,...