                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4704-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

P.M.,

     Defendant-Appellant.
_________________________

                    Submitted January 6, 2020 – Decided February 3, 2020

                    Before Judges Sabatino and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment No. 13-01-
                    0136.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Suzannah Brown, Designated Counsel, on
                    the brief).

                    Charles A. Fiore, Gloucester County Prosecutor,
                    attorney for respondent (Dana R. Anton, Senior
                    Assistant Prosecutor, on the briefs).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant P.M.1 appeals from a May 16, 2018 Law Division order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. Before us, his counsel presents the following argument:

            THE PCR COURT ERRED IN FAILING TO HOLD
            AN EVIDENTIARY HEARING ON [P.M.'S] CLAIM
            THAT TRIAL COUNSEL PROVIDED HIM WITH
            INEFFECTIVE ASSISTANCE OF COUNSEL BY
            FAILING TO CHALLENGE THE TESTIMONY OF
            [P.M.'S]  ACCUSER   THROUGH       CROSS-
            EXAMINATION.

      In his pro se appellate brief, defendant forwards the following additional

claims:

            POINT I

            THE PCR COURT ERRED BY FAILING TO
            ADDRESS THE TOTALITY OF THE EVIDENCE
            AND CIRCUMSTANCES REGARDING MULTIPLE
            WITNESS   INCONSIST[E]NT  STATEMENTS
            SUPPORTED ON THE RECORD.

            POINT II

            THE PCR COURT ERRED BY NOT ADDRESSING
            DEFENDANT'S ISSUES RAISED IN HIS POST[-]
            CONVICTION RELIEF APPLICATION VIOLATING
            HIS CONSTITUTIONAL RIGHT TO DUE PROCESS


1
  The sexual assault victim was defendant's stepdaughter. We use initials for
her and defendant to protect her privacy. R. 1:38-3(c)(12).
                                                                        A-4704-17T4
                                       2
            WHICH INFRINGED ON HIS RIGHT TO A FAIR
            HEARING.

            POINT III

            THE PCR COURT ERRED WHEN NOT MAKING A
            PROPER ASSESSMENT OF B.M.'S 2011 HEARING
            TESTIMONY    TRANSCRIPT     THAT    WAS
            SUBMITTED AS AN ABSENT WITNESS'S
            CREDIBILITY STATEMENT IN SUPPORT OF
            APPELLANT'S PRO SE PETITION FILINGS
            WITHIN   HIS   ADDENDUM     FOR    POST[-
            ]CONVICTION RELIEF.

      Having reviewed the record in light of the relevant legal principles, we

vacate the May 16, 2018 order because as defendant argues in his second point,

the PCR court failed to address all of defendant's pro se PCR arguments.

      Defendant was convicted by a jury of second-degree sexual assault,

N.J.S.A. 2C:14-2(c)(1) (count one), and fourth-degree criminal sexual contact,

N.J.S.A. 2C:14-3(b) (count two). The court sentenced defendant to an aggregate

term of seven years in prison subject to the No Early Release Act, N.J.S.A.

2C:43-7.2(d), and assessed applicable fines and penalties including a $1000

maximum penalty under N.J.S.A. 2C:14-10(a)(2) for the Sex Crime Victim

Treatment Fund ("SCVTF"). We affirmed defendant's conviction but remanded

for the court to merge defendant's conviction on count two with count one and

amplify its reasons for the imposition of the SCVTF penalty. State v. P.M., No.


                                                                       A-4704-17T4
                                      3
A-1882-14 (N.J. Super. App. Div. October 3, 2016), certif. denied, 230 N.J. 611

(2017).

      The relevant trial evidence is detailed in our unpublished decision

affirming defendant's conviction and in the PCR judge's May 16, 2018 written

decision. We recount some of those relevant facts to provide context for our

opinion.

      In December 2011, twenty-one-year-old A.G. fell asleep in her bedroom

after becoming intoxicated and ill during a Christmas party hosted by her mother

and defendant, her stepfather.    She awoke early the next morning to find

defendant vaginally penetrating her. A.G.'s daughter and mother were asleep in

another bedroom during the sexual assault.          A.G. reported the attack

immediately afterwards to her boyfriend, who called the police.       A.G. was

treated at a hospital and a sexual assault examination was performed.

Defendant's DNA matched sperm found on samples taken from A.G. at the

hospital.

      At trial, defendant primarily asserted an intoxication defense testifying

that he was so drunk that night that he could not remember having sex with A.G.,

nor could he recall his interaction with police and his responses he provided to

questions the following morning. Although he did not raise the issue in closing,


                                                                        A-4704-17T4
                                       4
defendant's counsel also indirectly suggested in questioning witnesses that the

sex was consensual, or that defendant at least reasonably believed it was

consensual, based on A.G.'s purported lack of physical resistance and the fact

that A.G. did not "scream" or "yell" during the sexual assault. In a related

argument, defense counsel also suggested A.G. fabricated her allegations of

sexual wrongdoing in order to retaliate against him for prior disputes.

      Defendant filed a pro se PCR petition dated March 20, 2017, contending

that his trial counsel violated the Rules of Professional Conduct and provided

ineffective assistance because he failed to: 1) conduct a meaningful

investigation; 2) evaluate and impeach the State's proofs, including the DNA

evidence; 3) appropriately address A.G.'s intoxication, and "introduce any

exculpatory evidence"; 4) competently cross-examine witnesses, including

A.G., with her prior inconsistent statements; and 5) review discovery with

defendant and advise him properly of the trial court proceedings.

      Defendant's assigned PCR counsel submitted a formal brief that primarily

argued that counsel's performance in cross-examining A.G. was constitutionally

deficient as he failed to address her numerous inconsistent statements, both to

the police and at an unsuccessful hearing for a restraining order. PCR counsel's

argument was a further amplification of one of the aforementioned arguments


                                                                          A-4704-17T4
                                       5
raised by defendant in his pro se PCR petition. At the end of his brief PCR

counsel also claimed trial counsel was ineffective for failing to: 1) call B.M.,

A.G.'s mother, to testify; 2) "challenge inadmissible [N.J.R.E.] 404[(b)]

evidence of an allegation of prior inappropriate sexual comments and then

failing to seek an appropriate limiting instruction"; and 3) object to the court's

"confusing" jury instruction on the intoxication defense. PCR counsel also

argued that the cumulative effect of these errors warranted that defendant's

sentence be vacated and that he be granted a new trial.

      PCR counsel's brief also specifically requested that the PCR court

"consider each and all of the allegations set forth in [defendant]'s pro se filings"

individually, and in context of the issues raised in PCR counsel's brief. At the

April 15, 2018 oral argument, PCR counsel argued consistent with the legal

argument raised in his brief that defendant's trial counsel was constitutionally

ineffective for failing to cross-examine A.M. with her multiple prior inconsistent

statements. PCR counsel also renewed his request that the PCR court "consider

each and every issue that [was] raised in the briefs, particularly anything that

[defendant] also filed . . . with the [PCR] [c]ourt."

      In its May 16, 2018 written decision, the PCR court addressed each

argument raised by assigned counsel and concluded defendant failed to satisfy


                                                                            A-4704-17T4
                                         6
both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 694

(1984), and was not entitled to an evidentiary hearing on those PCR claims. See

State v. Preciose, 129 N.J. 451, 463-64 (1992). The PCR judge did not, however,

address all of defendant's pro se claims, despite PCR counsel's specific reference

to them in his brief and at oral argument. The court had an obligation to consider

and address those arguments. See State v. Webster, 187 N.J. 254, 258 (2006);

State v. Rue, 175 N.J. 1, 4 (2002); R. 3:22-6(d). Because this did not occur, we

remand this matter to the PCR court to consider the arguments raised in

defendant's pro se PCR filing.

      A few additional comments are necessary.        We recognize that in the

context of addressing assigned PCR counsel's arguments, the court effectively

considered and rejected defendant's pro se claim that his counsel was

constitutionally ineffective under Strickland for failing to cross-examine A.G.

adequately with her prior inconsistent statements. We accordingly considered

addressing that constitutional claim in this appeal but decline to do so because:

1) the other issues raised by defendant in his pro se petition intersect with that

argument; and 2) resolution of defendant's pro se arguments may impact the

other issues resolved in the court's May 16, 2018 decision. We conclude the

PCR court should address the issues in a holistic manner in the first instance.


                                                                          A-4704-17T4
                                        7
      By way of example, defendant's pro se argument that his trial counsel did

not perform an adequate pretrial investigation and failed to show him discovery

or keep him appropriately advised of the trial proceedings may impact the court's

determination, made without the benefit of an evidentiary hearing, that

defendant's trial counsel's decision not to cross-examine A.G. with her prior

inconsistent statements was the product of a strategic choice that did not

prejudice defendant.

      Accordingly, we vacate the May 16, 2018 order and remand for the court

to submit amended findings of fact and conclusions of law that address

specifically the claims raised by defendant in his March 20, 2017 pro se petition.

We leave the scope of any remanded proceedings to the discretion of the trial

judge and nothing in this opinion should be interpreted as an expression of our

views on the merits of any of the parties' claims or the court's May 16, 2018

opinion.   We simply remand for the court to address defendant's pro se

arguments as required by Webster and because we conclude the PCR court will

be in the best position to determine if defendant's pro se claims affect its May

16, 2018 decision to deny defendant's petition and that an evidentiary hearing

was unnecessary.

      Vacated and remanded. We do not retain jurisdiction.


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                                        8
