                             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                        NOT FOR PUBLICATION WITHOUT THE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-3635-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SHANE SIMPSON,

     Defendant-Appellant.
___________________________________

              Submitted November 29, 2017 – Decided July 26, 2018

              Before Judges Fuentes and Koblitz.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              10-12-2352.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Monique D. Moyse, Designated
              Counsel, on the brief).

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Lisa
              Sarnoff Gochman, of counsel and on the brief).

PER CURIAM

        On December 1, 2010, a Monmouth County Grand Jury returned

an indictment against defendant Shane Simpson charging him with

first degree aggravated sexual assault of a seven-year-old child,
identified as C.U., that occurred on April 6, 2010, N.J.S.A. 2C:14-

2(a)(1); three counts of second degree sexual assault of C.U. that

occurred on April 6, April 13, and April 20, 2010, N.J.S.A. 2C:14-

2(b); first degree1 endangering the welfare of a child, C.U., by

causing her to engage in child pornography while in defendant's

care,   N.J.S.A.      2C:24-4(b)(3);     second    degree      endangering        the

welfare of a child, C.U., by engaging in sexual contact with the

child in a manner that would debauch her morals while having

assumed responsibility for her care, N.J.S.A. 2C:24-4(a); fourth

degree endangering the welfare of a child, C.U., by possessing

child pornography, N.J.S.A. 2C:24-4(b)(5)(b); and fourth degree

failing to register as a convicted sex offender on April 6, 2010,

N.J.S.A. 2C:7-2(a).2

      The    record    shows   defendant       engaged    in        extensive     and

ultimately    unsuccessful     motion       practice   that    included:     (1)    a

motion to sever certain counts in the indictment; (2) a motion to

suppress the admission of self-incriminating statements defendant

had   made   during    a   custodial    interrogation;        (3)    a   motion    to

determine defendant's competency to stand trial and assist in his



1
  The State amended this charge to a second degree offense before
the start of trial.
2
  Defendant was convicted under previous versions of N.J.S.A.
2C:24-4(a), N.J.S.A. 2C:24-4(b)(3), and N.J.S.A. 2C:24-4(b)(5)(b).

                                        2                                   A-3635-15T3
own defense; (4) a motion to admit evidence allegedly showing that

C.U.   was    sexually   abused   when       she   was   three   years   old;   (5)

defendant's pro se motion to compel the Public Defender's Office

to   remove    the   Assistant    Deputy      Public     Defender   assigned     to

represent him in this case and assign a different attorney;3 and

(6) a motion to recuse the judge from presiding over the trial.

Defendant was tried before a jury between March 21, 2012 and April

5, 2012.      The jury found defendant guilty on all counts in the

indictment.

       On September 24, 2012, the court sentenced defendant to an

aggregate term of thirty-four years, with a period of parole

ineligibility of twenty-eight years, ten months, and twenty-eight

days, as required by the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2,4 to be served at the Adult Diagnostic and Treatment




3
   Defendant's pro se motion to remove the attorney assigned by
the Public Defender's Office to represent him came before the
trial court on February 24, 2012. The judge provided defendant
the opportunity to be heard before denying the motion. Defendant
did not raise this issue on direct appeal.
4
   Only certain offenses are subject to NERA. Here, the crime of
first degree aggravated sexual assault requires the court to impose
an eighty-five percent period of parole ineligibility and five
years of parole supervision. Second degree sexual assault requires
the same eighty-five percent period of parole ineligibility, with
a three-year period of parole supervision. See N.J.S.A. 2C:43-
7.2.

                                         3                                A-3635-15T3
Center (ADTC). See N.J.S.A. 2C:47-3(f). Defendant is also subject

to the registration requirements of Megan's Law, N.J.S.A. 2C:7-2.

     We affirmed defendant's conviction on direct appeal in an

unpublished opinion, State v. Shane Simpson, No. A-1697-12 (App.

Div. May 12, 2014) (slip op. at 21). We also affirmed the sentence

imposed by the trial court, with one exception.      We sua sponte

remanded the matter for the court to resentence defendant on the

conviction for endangering the welfare of a child under N.J.S.A.

2C:24-4(b)(3) because "the State amended [this charge] to a second-

degree crime prior to the start of trial."   Id. at 20-21.

     On June 18, 2014, the trial court resentenced defendant on

this charge to a term of eight years, with four years of parole

ineligibility, to be served concurrently to the sentence imposed

for first degree aggravated sexual assault.     On June 10, 2014,

defendant filed a pro se post-conviction relief (PCR) petition

alleging, without factual elaboration or citation to relevant

legal authority, the following five grounds for relief: (1) court

error; (2) ineffective assistance of counsel; (3) prosecutorial

misconduct; (4) malicious prosecution; and (5) any other points

assigned counsel deems relevant.

     The court assigned counsel to assist defendant in prosecuting

his PCR petition.   According to appellate counsel, PCR counsel

filed "supporting briefs" before the PCR court and defendant filed

                                4                            A-3635-15T3
a pro se motion seeking the revocation of fines.   The matter came

for oral argument before the PCR court on January 29, 2016.

Although the "briefs" referred to by appellate counsel are not

included in the record before us, the PCR judge acknowledged

receipt of "petitioner's brief in support, which was filed on

April 29th, 2015; [and] petitioner's supplemental brief, which was

filed on August 14th, 2015 . . . ."   After hearing the arguments

of counsel, the PCR judge reserved decision.

     In an order dated February 25, 2016 supported by a memorandum

of opinion, the PCR judge denied defendant's petition.     The judge

found that the five claims or bases for PCR defendant listed in

his petition were procedurally barred under Rule 3:22-4, which

states:

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



                                5                            A-3635-15T3
            (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.

     Relying on the Supreme Court's decision in State v. Mitchell,

126 N.J. 565, 583 (1992), the PCR judge found that "none of the

three exceptions to the procedural bar outlined above apply."

Notwithstanding    this    procedural     bar,   the   PCR   judge   reviewed

defendant's claims of ineffective assistance of counsel under the

standards   established    by   the   United     States   Supreme    Court    in

Strickland v. Washington, 466 U.S. 668 (1984), and subsequently

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987),

and found defendant did not establish a prima facie case for

relief.

     Defendant now appeals, raising the following arguments:

            POINT ONE

            THIS   MATTER  MUST BE  REMANDED   FOR  AN
            EVIDENTIARY HEARING ON [DEFENDANT'S] CLAIM
            THAT TRIAL COUNSEL RENDERED INEFFECTIVE
            ASSISTANCE.

            POINT TWO

            THE $7000 SCVTF PENALTY MUST BE REVOKED OR THE
            MATTER   REMANDED   FOR   RECONSIDERATION   OF
            [DEFENDANT'S] CLAIM THAT IT MUST BE REVOKED.

     We reject these arguments and affirm. The PCR court correctly

found defendant's argument are procedurally barred under Rule

3:22-4.     Furthermore,    defendant's     allegations      of   ineffective

                                      6                                A-3635-15T3
assistance based on trial counsel's decision to decline to present

psychiatric evidence are meritless and unsupported by competent

evidence.   R. 2:11-3(e)(2).    We affirm substantially for the

reasons expressed by the PCR court.

     Affirmed.




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