                                       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                                 NOT FOR PUBLICATION WITHOUT THE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.
                                                                          A-0747-18T4
                                          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
                                         3
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.


                                                                           A-0747-18T4
                                        5
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


                                                                           A-0747-18T4
                                        7
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
                                        8
      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,


                                                                           A-0747-18T4
                                        9
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.




                                                                           A-0747-18T4
                                       10
