                                      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                                 NOT FOR PUBLICATION WITHOUT THE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-3878-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

R.P.,

     Defendant-Appellant.
____________________________

                   Submitted May 28, 2019 – Decided June 25, 2019

                   Before Judges Sabatino and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 08-10-
                   2279.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Amira Rahman Scurato, Designated
                   Counsel, on the brief).

                   Christopher J. Gramiccioni, Monmouth County
                   Prosecutor, attorney for respondent (Mary Rebecca
                   Juliano, Assistant Prosecutor, of counsel and on the
                   brief).

PER CURIAM
      Defendant R.P.1 appeals from the February 2017 Law Division order

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

hearing. Although we do not agree with the PCR court that defendant's petition

is procedurally barred, in all other respects, we affirm the PCR court's thorough

and   well-reasoned    written   decision   rejecting   defendant's   substantive

contentions.

                                       I.

      After a 2010 jury trial on a four-count indictment, defendant was

convicted of first-degree aggravated sexual assault by committing an act of

sexual penetration upon a victim between thirteen to sixteen years old by a step-

parent/guardian, N.J.S.A. 2C:14-2(a)(2) (count two); first-degree aggravated

sexual assault by committing an act of sexual penetration upon a victim by force

or coercion with severe personal injury, N.J.S.A. 2C:14-2(a)(6) (count three);

and second-degree aggravated sexual assault by committing an act of sexual

penetration upon a victim between sixteen to eighteen years old by a step-

parent/guardian, N.J.S.A. 2C:14-2(a) (count four). The jury was unable to reach

a verdict on count one, which charged first-degree aggravated sexual assault by



1
   Consistent with our prior opinion and the Supreme Court's opinion, we use
initials to protect the anonymity of the victim and others.
                                                                          A-3878-17T3
                                       2
committing an act of sexual penetration upon a victim less than thirteen years

old, N.J.S.A. 2C:14-2(a). Count one was later dismissed by the State.

      The facts in this case were set forth in our prior opinion and in the

Supreme Court's published opinion, and need only be briefly summarized now.

Over the course of several years, defendant repeatedly sexually abused his

stepdaughter, O.M. O.M. testified that defendant started touching her when she

was only twelve years old. Defendant eventually began having unprotected

sexual intercourse with O.M. against her will. Those sexual assaults resulted in

two pregnancies, one of which resulted in a birth. O.M. did not report the sexual

offense for many years until she was thirty-two years old, when she revealed the

abuse to her aunt and then to law enforcement authorities. The State's evidence

at trial included the victim's account, testimony from the aunt relaying the

victim's fresh complaint hearsay report of the sexual assaults, and DNA evidence

conclusively establishing that defendant fathered O.M.'s son.

      On November 9, 2010, the trial judge sentenced defendant to an eighteen-

year prison term with a nine-year term of parole ineligibility on both counts two

and three. Those sentences were ordered to be served concurrently. On his

conviction for count four, defendant was sentenced to an eight-year prison term

with a four-year period of parole ineligibility. The sentence imposed on count


                                                                         A-3878-17T3
                                       3
four was ordered to be served consecutively to the sentences imposed on counts

two and three. As such, defendant was sentenced to an aggregate State Prison

term of twenty-six years with a thirteen-year period of parole ineligibility. The

trial judge also ordered defendant to pay a total of $655 in fines and penalties,

and advised defendant that he was subject to the requirements of Megan's Law

and community supervision for life.

      Defendant appealed his conviction and sentence, arguing that the trial

court erred by: (1) failing to charge second-degree sexual assault as a lesser

included offense on count three; (2) denying his motion for a judgment of

acquittal on counts two and three; and, (3) imposing an excessive sentence.

State v. R.P., No. A-1569-10 (App. Div. Dec. 27, 2013) (slip op. at 2). We

affirmed defendant's convictions and sentences on counts two and four, but

reversed defendant's conviction on count three, reasoning that the evidence

supported a charge on a lesser-included offense that should have been submitted

to the jury. We rejected the State's argument to mold the verdict to reduce the

conviction on count three to the lesser-included second-degree offense, and

instead, we remanded the case for retrial. R.P., slip op. at 19.

      The Supreme Court granted the State's petition for certification. The

Court held that the proper remedy to address the failure to submit the lesser-


                                                                         A-3878-17T3
                                        4
included charge to the jury was to mold the verdict as was requested by the State,

rather than to order a retrial. The Court explained that "defendant was given his

day in court, . . . all of the elements of sexual assault are included in the crime

of aggravated sexual assault, and . . . there was no prejudice to defendant." State

v. R.P., 223 N.J. 521, 522 (2015). The Court thereupon molded the verdict on

count three to the lesser-included offense of second-degree sexual assault and

remanded the matter for entry of judgment and resentencing. Id. at 529.

      On January 15, 2016, the trial court resentenced defendant on the molded

conviction to count three to an eight-year term with a four-year period of parole

ineligibility, to be served concurrently with the sentence that had been imposed

on count two. On June 6, 2016, an Excessive Sentence on Appeal (ESOA) panel

affirmed the resentencing decision.

      Defendant thereafter filed a timely petition for PCR, contending that his

trial counsel rendered ineffective assistance by: (1) failing to conduct an

adequate investigation or prepare defendant for trial; (2) "coercing" defendant

not to testify; (3) failing to hire an expert to challenge the State’s DNA evidence;

(4) failing to interview witnesses, specifically, the victim, her mother, her

brother, and her best friend; (5) failing to object to evidence and hearsay




                                                                            A-3878-17T3
                                         5
statements; (6) not requesting a jury charge on the lesser-included offense of

count three; and (7) not filing a motion for a new trial.

      On February 22, 2017, the trial court rejected defendant's PCR petition

after determining that an evidentiary hearing was not warranted. The PCR judge

found that defendant's petition was procedurally barred because the issues raised

in the petition could have been asserted on direct appeal. The judge nonetheless

addressed defendant's contentions on the merits and rejected all of them in a

detailed twenty-five page opinion.

                                        II.

      In his present appeal, defendant makes the following points in his brief:

            POINT I: BECAUSE DEFENDANT ESTABLISHED
            A PRIMA FACIE CASE OF INEFFECTIVE
            ASSISTANCE OF COUNSEL FOR FAILING TO
            CONSULT, INVESTIGATE, HIRE AN EXPERT,
            AND     OBJECT    TO   TESTIMONY,   AN
            EVIDENTIARY HEARING WAS REQUIRED.

            POINT II: THE PETITION FOR POST-CONVICTION
            RELIEF IS NOT PROCEDURALLY BARRED BY
            RULE 3:22-4 OR RULE 3:22-5.

                                        III.

      Under the Sixth Amendment of the United States Constitution, a person

accused of crimes is guaranteed the effective assistance of legal counsel in his

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a

                                                                         A-3878-17T3
                                         6
deprivation of that right, a convicted defendant must satisfy the two-part test

enunciated in Strickland by demonstrating that: (1) counsel's performance was

deficient, and (2) the deficient performance actually prejudiced the accused's

defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the

Strickland two-part test in New Jersey).

      When reviewing such claims of ineffectiveness, courts apply a strong

presumption that defense counsel "rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment. "

Stickland, 466 U.S. at 690. Moreover, "'an otherwise valid conviction will not

be overturned merely because the defendant is dissatisfied with his or her

counsel's exercise of judgment during the trial.'" State v. Allegra, 193 N.J. 352,

367 (2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)).

      The law governing this appeal further instructs that, in order to obtain an

evidentiary hearing on a PCR petition based upon claims of ineffective

assistance of counsel, a defendant must make a prima facie showing of both

deficient performance and actual prejudice. See State v. Preciose, 129 N.J. 451,

463 (1992).    "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." R. 3:22-10(b). A defendant "is not entitled to an


                                                                          A-3878-17T3
                                        7
evidentiary hearing if the 'allegations are too vague, conclusory, or speculative

to warrant an evidentiary hearing.'" State v. Porter, 216 N.J. 343, 355 (2013)

(quoting State v. Marshall, 148 N.J. 89, 158 (1997)).

      Accordingly, when, as in this case, a defendant claims that his or her trial

attorney "inadequately investigated his case, he must assert the facts that an

investigation would have revealed, supported by affidavits or certifications

based upon the personal knowledge of the affiant or the person making the

certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)

(citing R. 1:6-6). "Bald assertions" of deficient performance are insufficient to

support a PCR application.       Ibid.; see also Porter, 216 N.J. at 356-57

(reaffirming these principles in evaluating which of a defendant's various PCR

claims warranted an evidentiary hearing).

                                       IV.

      The PCR judge determined that defendant's claims were procedurally

barred pursuant to Rule 3:22-42 because those claims could have been raised on

direct appeal. We disagree with this portion of the PCR judge's decision. 1




2
  Defendant in his appellate brief argues that his claims should not be barred by
R. 3:22-5. However, the PCR judge did not find that the claims were barred
pursuant to that particular Court Rule.
                                                                          A-3878-17T3
                                        8
      Although Rule 3:22-4(a) creates a general bar to raising issues in a PCR

petition that were not raised in a prior proceeding, the rule establishes three

exceptions. The rule provides:


            Any ground for relief not raised in the proceedings
            resulting in the conviction, or in a post-conviction
            proceeding brought and decided prior to the adoption
            of this rule, or in any appeal taken in any such
            proceedings is barred from assertion in a proceeding
            under this rule unless the court on motion or at the
            hearing finds:

                  (1) That the ground for relief not previously
                  asserted could not reasonably have been raised in
                  any prior proceeding; or

                  (2) The enforcement of the bar to preclude
                  claims, including one for ineffective assistance of
                  counsel, would result in fundamental injustice; or

                  (3) That denial of relief would be contrary to a
                  new rule of constitutional law under either the
                  Constitution of the United States or the State of
                  New Jersey.

            [R. 3:22-4(a)]

      Considering those exceptions, and especially the first one, we conclude

that defendant's claim of ineffective assistance of counsel is not barred by Rule

3:22-4. Some of the alleged attorney deficiencies pertain to attorney conduct

and communications that are not included in the trial record (e.g., the alleged


                                                                         A-3878-17T3
                                       9
coercive behavior of the attorney to convince defendant not to testify at trial).

Defendant could not reasonably have been expected to raise the issue on direct

appeal or any other non-PCR proceeding. See Preciose, 129 N.J. at 460 (holding

that "[o]ur courts have expressed a general policy against entertaining

ineffective-assistance-of-counsel claims on direct appeal because such claims

involve allegations and evidence that lie outside the trial record.").

      Furthermore, "[u]nder New Jersey case law, petitioners are rarely barred

from raising ineffective-assistance-of-counsel claims on post-conviction

review."   Id. at 459-60.    Our courts have routinely found that ineffective

assistance of counsel claims are "congruous with the exceptions to the

procedural bar of R. 3:22-4." State v. Moore, 273 N.J. Super. 118, 125 (App.

Div. 1994). In this instance, all of defendant's PCR contentions are framed in

the context of ineffective assistance of trial counsel. As such, the PCR judge

should not have found that defendant's claims were procedurally barred.

                                        V.

      Despite this procedural error, the PCR judge carefully and thoroughly

addressed all of defendant's PCR contentions on their merits. The PCR judge

found that defendant's contentions were either "bald assertions" without




                                                                          A-3878-17T3
                                       10
sufficient – or any – factual support in the PCR record, or were flatly

contradicted by the trial record. We agree.

      We conclude that an evidentiary hearing was neither required nor

warranted because defendant failed to establish a prima facie case that his tri al

counsel's performance was constitutionally deficient and that he suffered actual

prejudice from counsel's unprofessional conduct. Preciose, 129 N.J. at 463. In

this instance, defendant failed to establish a prima facie case on either of the two

Strickland prongs. Indeed, this case falls squarely in the heartland of the rule

that a defendant "is not entitled to an evidentiary hearing if the 'allegations are

too vague, conclusory, or speculative to warrant an evidentiary hearing.'"

Porter, 216 N.J. at 355 (quoting Marshall, 148 N.J. at 158).

      We have considered defendant's substantive contentions on appeal in light

of the record and applicable legal principles and conclude that they are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We

therefore affirm substantially for the reasons expressed by Judge Oxley in his

well-reasoned written opinion.       We would only add the following brief

comments with respect to each of defendant's contentions:




                                                                            A-3878-17T3
                                        11
                                         1.

      Defendant claims that his trial counsel failed to conduct a proper

investigation, but defendant has not asserted the exculpatory facts that the

supplemental investigation would have revealed. Defendant therefore has failed

to comply with Cummings, which requires that when a defendant claims on PCR

that his or her trial counsel inadequately investigated the case, that claim "must

assert the facts that an investigation would have revealed, supported by

affidavits or certifications based upon personal knowledge of the affiant or the

person making the certification." 321 N.J. Super. at 170.

                                         2.

      Defendant claims that his trial counsel coerced him to give up his right to

testify in his own defense at trial, but that argument is belied by the defendant's

colloquy with the trial judge concerning defendant's right to testify or not testify.

Defense counsel advised the trial judge that he had spoken at length with

defendant concerning his right to testify, and that defendant wanted to testify

against counsel's advice. The judge read aloud the jury instruction that would

be given, after which defendant asked for more time to speak with his attorney.

The judge replied, "[t]ake all the time you need," and further explained, "[i]t's

your decision. It's a very important decision. I want to make sure when you


                                                                             A-3878-17T3
                                        12
make your decision, it is your final decision. You understand that?" Defendant

replied, "[r]ight."

      After a twenty-minute recess to permit defendant to consult with counsel,

the following colloquy took place:

             Court: Mr. [R.P.], would you stand, please. Have you
             discussed with your attorney your right to remain silent
             and to not testify in this case?

             Defendant: Yes, ma'am.

             Court: I just read to you before the break the charge that
             would be given to the jury in the event you chose not –
             to exercise your Constitutional right not to testify. Do
             you need any more time to speak to your attorney about
             your decision?

             Defendant: No.

             Court: What is your decision in this case?

             Defendant: Not to testify.

             Court: Are you making that decision of your own free
             will?

             Defendant: Yes.

             Court: Has anyone threatened you or put any pressure
             on you not to testify?

             Defendant: No.




                                                                          A-3878-17T3
                                          13
Court: You've had an opportunity to speak to your
attorney. He's given you his thoughts with regard to the
risks and advantages of testifying, correct?

Defendant: Yes.

Court: Has your attorney pressured you in order to
make this decision?

Defendant: No.

Court: You're making the decision of your own free will
based upon your own consideration of all of the issues?

Defendant: Yes.

Court: Is there anything else, Mr. [defense counsel]?

Defense Counsel: Yes, Judge. And, [defendant's first
name], in reaching that decision, part of what we did
was, we went over the jury verdict sheet, and I actually
showed you my outline notes of the closing, which sit
on the table in front of us, right?

Defendant: Yes.

Defense Counsel: You're sure, after reviewing all of
that, you're satisfied that you want to exercise your
Constitutional right not to testify?

Defendant: Yes.

Defense Counsel: And although I gave you my opinion
and advice that you should remain silent, you
understand that that decision is always yours and never
mine, correct?

Defendant: Yes.

                                                           A-3878-17T3
                          14
            Defense Counsel: You understand that whether or not
            you testify, I am still going to do the best job humanly
            possible and that I know how to do [sic] to protect your
            rights and to do this trial to your benefit. You
            understand that, right?

            Defendant: Yes.

            Defense Counsel: Just want to make sure.

            Court: Mr. [R.P.], my concern is that at some later point
            in time you're going to come back and say this wasn't
            your decision, that you hadn't had enough time to think
            about it, that you were being pressured, that there was
            some force or coercion being exercised on you. Have
            you had sufficient time to make this decision?

            Defendant: Yes.

      Based on this exhaustive colloquy, the trial judge found that defendant

had a full and fair opportunity to consider his options, that he had the benefit

of multiple conversations with his attorney to discuss the issue, that he had

been given the opportunity to take into consideration the strategic issues raised

by his attorney's advice, and that he made the decision not to testify

voluntarily, of his own free will, and with the full advice of counsel.

                                        3.

      Defendant claims that trial counsel was ineffective for failing to retain an

expert to refute the State's DNA evidence, but fails to provide any facts,

affidavits, or certifications explaining how a defense expert might have rebutted

                                                                           A-3878-17T3
                                       15
the State's overwhelmingly definitive scientific evidence that defendant fathered

the victim's son.

                                        4.

      Defendant claims that his trial counsel failed to interview certain

witnesses, such as the victim's mother, brother, and best friend, but fail s to

explain by affidavit or certification what any such interviews would have

revealed. See Cummings, 321 N.J. Super. at 170 (A claim that counsel failed to

conduct supplemental investigation must assert facts that would have been

revealed, supported by affidavits or certifications.)

                                        5.

      Defendant claims that his trial counsel's performance was constitutionally

deficient for failing to object to certain evidence adduced at trial, including the

victim's aunt's fresh complaint testimony. Defendant's contention is belied by

the record, which shows that counsel did object to the fresh complaint testimony

and that objection was overruled based upon prevailing precedent cited by the

trial judge. See State v. Bethune, 121 N.J. 137, 146-47 (1990) (fresh complaint

evidence is not admitted to prove underlying truth of sexual assault charges or

to bolster victim's credibility, but merely to dispel inference that victim was

silent; detailed testimony is impermissible under the fresh complaint rule.).


                                                                           A-3878-17T3
                                       16
                                        6.

      Defendant claims that counsel was ineffective for not requesting a jury

charge on lesser-included offenses. However, the Supreme Court has already

addressed that problem and remedied it on direct appeal by molding the verdict.

Consequently, defendant cannot show that he is presently suffering prejudice

from counsel's performance with respect to this issue.

                                        7.

      Defendant claims that counsel was ineffective for failing to move for a

new trial. Defendant fails to provide any facts upon which a motion for a new

trial would have been granted. On direct appeal, we previously addressed the

question whether the trial court should have granted a motion for acquittal, and

we concluded that there was sufficient evidence to support the jury verdict. R.P.,

slip op. at 12.

      Affirmed.




                                                                          A-3878-17T3
                                       17
