                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0966-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

G.L.D.,

     Defendant-Appellant.
________________________

                    Argued telephonically January 27, 2020 –
                    Decided April 24, 2020

                    Before Judges Ostrer and Vernoia.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 07-05-
                    0744.

                    G.L.D., appellant, argued the cause pro se.

                    Jennifer Bentzel Paszkiewicz, Assistant Prosecutor,
                    argued the cause for respondent (Scott A. Coffina,
                    Burlington County Prosecutor, attorney for respondent;
                    Jennifer Bentzel Paszkiewicz, of counsel and on the
                    brief).

PER CURIAM
      Defendant G.L.D. appeals from an order denying his second post-

conviction relief (PCR) petition without an evidentiary hearing. Defendant

primarily claims his trial counsel and counsel on his first PCR petition were

constitutionally ineffective by failing to challenge what he characterizes as the

State's unconstitutional constructive amendment of the indictment and

presenting testimony that he contends resulted in his conviction of offenses not

charged in the indictment.     Having considered the record in light of the

applicable legal principles, we find no merit to defendant's arguments, and

affirm.

                                       I.

      Defendant was charged in a thirteen-count indictment with sexual assault,

sexual contact, and endangering-the-welfare-of-a-child offenses. The victim of

the alleged offenses is defendant's stepdaughter, D.E., who was between ages

ten and fifteen when the offenses occurred. The indictment alleged three of the

offenses were committed on September 9, 2006, and the remaining ten offenses

were committed on numerous occasions between other specified "diverse dates."

The indictment further alleged the offenses were committed in Pemberton

Township, and the evidence presented to the grand jury showed D.E. reported




                                                                         A-0966-17T4
                                       2
the crimes were committed during D.E.'s visits to the Pemberton home defendant

shared with D.E.'s mother.

      Prior to trial, the State moved to amend the indictment to correct what

were described as clerical errors. The proposed amendments narrowed the

diverse dates during which it was alleged defendant committed some of the

alleged offenses, and more specifically alleged defendant was D.E.'s stepfather.

Defendant's trial counsel did not object to the requested amendments, and the

court granted the State's motion.

      Prior to trial, the State also advised defendant's trial counsel it intended to

move to amend the indictment to allege some of the offenses were committed at

a location outside of defendant's Pemberton residence. More particularly, the

State advised D.E. had just reported one of the sexual assaults took place at a

Westampton Township motel, and the State intended to move "at trial to amend

the jurisdictions alleged in the indictment to include 'Pemberton Township (as

it currently reads) and/or Westampton Township.'"

      The State never moved to amend the indictment to include Westampton

as a location of any of the alleged offenses. However, at trial, D.E. testified

without objection concerning defendant's commission of a sexual assault in




                                                                             A-0966-17T4
                                         3
Westampton. She also testified defendant committed the offenses charged in

the indictment at defendant's Pemberton residence.

      Following presentation of the evidence, the judge charged the jury on the

elements of the charged offenses. For each of the offenses charged in the

indictment, the judge instructed the jury to determine whether defendant

committed the crimes in Pemberton. The judge did not request or require the

jury determine whether defendant committed any of the offenses in

Westampton.

      The jury convicted defendant of two counts of second-degree sexual

assault, N.J.S.A. 2C:14-2(b); three counts of second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a); four counts of first-degree aggravated

sexual assault, N.J.S.A. 2C:14-2(a)(2)(a) and (c); and four counts of third-

degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). The jury found

beyond a reasonable doubt each offense was committed in Pemberton, as

charged in the indictment.

      We summarized the evidence presented at trial and affirmed defendant's

convictions on his direct appeal, State v. G.L.D., No. A-4122-08 (App. Div. June

8, 2011) (slip op. at 3-10, 27). The Supreme Court denied his petition for

certification, State v. G.L.D., 209 N.J. 596 (2012).


                                                                        A-0966-17T4
                                        4
      Defendant filed a PCR petition as a self-represented litigant, and he was

assigned PCR counsel. In correspondence to his counsel, defendant questioned

"the constitutional sufficiency of the indictment, and [his] ability to defend

against the charges." He asserted the prosecutor "insert[ed] new allegations"

concerning the Westampton incident, thereby "amend[ing] the indictment

without re-presentment to a [g]rand [j]ury" to "circumvent" defendant's alleged

"alibi."

      In correspondence to PCR counsel, defendant further questioned his trial

counsel's failure "to object to the amending of the indictment" and claimed the

purported constructive amendment of the indictment included an allegation not

presented to the grand jury—that defendant committed offenses in Westampton.

Defendant advised PCR counsel that, in his view, his trial counsel failed to

challenge an unconstitutional amendment of the indictment.

      At a hearing on defendant's petition, his PCR counsel argued trial counsel

was ineffective by failing to subpoena defendant's work records that would have

established an alleged alibi, and by failing to obtain D.E.'s psychotherapy

records. PCR counsel did not assert trial counsel erred by failing to object to

the purported constructive amendment of the indictment to include alleged

Westampton offenses. The court ordered an evidentiary hearing to determine if


                                                                        A-0966-17T4
                                       5
trial counsel was ineffective by failing to subpoena the work records and obtain

D.E.'s psychotherapy records.

        Defendant claims his PCR counsel's brief to the court did not include the

argument trial counsel was ineffective by failing to object to the purported

constructive amendment of the indictment. Defendant contends he sent a pro se

brief to his PCR counsel, asserting an ineffective assistance of counsel claim

based on trial counsel's failure to object to the purported amendment. 1

        In response, PCR counsel advised defendant she made the "strategic

decision" not to argue trial counsel should have challenged the amendment of

the indictment. Instead, she believed it was better to focus on trial counsel's

alleged failure to adequately cross-examine D.E. concerning her inconsistent

reports about the alleged offenses; and she noted defendant's argument trial

counsel should have challenged the amendment of the indictment "is an out of

time argument that is barred because [it was not] raise[d] in the brief" she filed .

PCR counsel advised defendant that he could submit his pro se brief to the court,

but that she did "not argue claims that are not" hers. Defendant opted not to

submit his pro se brief to the PCR court.




1
    The record on appeal does not include the pro se brief.
                                                                            A-0966-17T4
                                         6
      Following a three-day evidentiary hearing, the PCR court determined trial

counsel's failure to obtain defendant's work records and D.E.'s psychotherapy

records did not constitute ineffective assistance of counsel. The court found

defendant failed to demonstrate his work records, if obtained, would have

supported an alibi defense to D.E.'s claims she was sexually assaulted on

numerous occasions over a five-year period while spending weekends with her

mother at defendant's home. The court also found defendant failed to present

any evidence that if D.E.'s psychotherapy records had been obtained, they would

have "impacted [her] credibility or further exculpated" defendant. The court

entered an order denying defendant's PCR petition.

      Defendant appealed the denial of his petition.          In pertinent part, his

appellate counsel argued trial counsel was ineffective by failing to challenge the

indictment, and by allowing D.E. to change her testimony concerning the

location of the alleged sexual assaults. We affirmed the denial of defendant's

first PCR petition, State v. G.L.D., No. A-1740-13 (App. Div. Mar. 18, 2016)

(slip op. at 11), "substantially for the reasons set forth" in the PCR court's written

opinion, and we rejected defendant's arguments, noting they lacked sufficient

merit to warrant discussion in a written opinion, id. at 1, 11. The Supreme Court

denied defendant's petition for certification. State v. G.L.D., 229 N.J. 15 (2017).


                                                                              A-0966-17T4
                                          7
      Defendant filed a pro se second PCR petition.          He claimed his PCR

counsel was ineffective by failing to raise meritorious claims in support of the

first PCR petition. More particularly, defendant claimed his PCR counsel failed

to assert his trial counsel was ineffective by failing to: challenge the sufficiency

of the indictment; request a bill of particulars; and object to the State's motion

to amend the indictment.         Defendant further alleged PCR counsel was

ineffective by failing to argue his trial counsel's purported errors, including trial

counsel's failure to challenge the purported constructive amendment of the

indictment, deprived him of a fair trial.

      In an October 10, 2017 letter to defendant, the court noted the petition did

not rely on a new rule of constitutional law that was unavailable du ring the

pendency of the prior proceedings. See R. 3:22-4(b)(2)(A). The court further

found defendant's petition did not establish a prima facie case of ineffective

assistance of PCR counsel on his first petition. See R. 3:22-4(b)(2)(C). The

court "determined [the petition] is without 'merit' and, therefore, denied." This

appeal followed.

      Defendant presents the following arguments for our consideration:

             POINT I

             THE STATE'S AMENDING OF THE INDICTMENT
             IN  THIS   INSTANCE  CONSTITUTED    AN

                                                                             A-0966-17T4
                                            8
IMPERMISSIBLE            "CONSTRUCTIVE
AMENDMENT," WHICH BROADENED THE
POSSIBLE BASES FOR CONVICTION FROM THAT
WHICH APPEARED IN THE INDICTMENT IN
VIOLATION    OF     DEFENDANT'S   FIFTH
AMENDMENT RIGHT TO BE TRIED ONLY ON
OFFENSES FOUND BY THE GRAND JURY.

A. The State's Amending Of The Indictment
Constituted An   Impermissible "Constructive
Amendment."

B. The State's Amending Of The Indictment Does Not
Constitute A Proper Variance.

POINT II

THE PCR COURT ERRED IN DENYING
DEFENDANT'S SECOND PETITION FOR POST-
CONVICTION RELIEF WITHOUT A HEARING
BECAUSE DEFENDANT ALLEGED A PRIMA
FACIE CASE OF INEFFECTIVE ASSISTANCE OF
FIRST PCR COUNSEL PURSUANT TO R. 3:22-6(d);
[STATE V. RUE], 175 N.J. 1 (2002); [STATE V.
WEBSTER], 187 N.J. 254 (2006); AND [STATE V.
HICKS], 411 N.J. SUPER. 370 ([App. Div.] 2010).

A. Legal Standard for Effective Assistance of PCR
Counsel.

B. Defendant Alleged a Prima Facie Claim of
Ineffective Assistance of First PCR Counsel.

C. Defendant Was Prejudiced by PCR Counsel's
Failure to Advance the Improper Amending of the
Indictment Issue.



                                                     A-0966-17T4
                        9
           POINT III

           DEFENDANT WAS DENIED THE EFFECTIVE
           ASSISTANCE OF BOTH TRIAL AND DIRECT
           APPEAL       COUNSELS      CONSTITUTIONALLY
           GUARANTEED BY THE U.S. CONST., AMENDS.
           VI, XIV; N.J. CONST. ART. I, PAR. 10.

           A. Trial Counsel Was Ineffective.

           B. Direct Appeal Counsel Was Ineffective.

           POINT IV

           TRIAL COUNSEL'S NUMEROUS DECEPTIVE
           PRETRIAL ACTIONS VIOLATED DEFENDANT'S
           SIXTH AMENDMENT GUARANTEED RIGHT TO
           CHOOSE THE OBJECTIVE OF HIS DEFENSE
           [McCOY V. LOUISIANA], 548 U.S. __, 138 S. Ct.
           1500, 200 L.Ed. 2d 821 (2018).

           POINT V

           DEFENDANT'S ACTUAL INNOCENCE IS A
           GATEWAY THROUGH WHICH HE MAY PASS,
           ALLOWING HIM TO PRESENT HIS INEFFECTIVE
           COUNSEL   CLAIMS    ON    THE    MERITS
           NOTWITHSTANDING ANY PROCEDURAL BARS.
     Based on our review of the record, we are not persuaded by defendant's

arguments, and we affirm.

                                     II.

     We review the legal conclusions of the PCR court de novo. State v. Harris,

181 N.J. 391, 419 (2004). This standard of review applies to mixed questions

                                                                       A-0966-17T4
                                     10
of law and fact. Id. at 420. Where, as here, the PCR court did not conduct an

evidentiary hearing, we may "conduct a de novo review of both the factual

findings and legal conclusions of the PCR court." Id. at 421. We apply these

standards to our review of the issues raised by defendant.

                                       A.

      We first note we will not consider or address the arguments raised in

Points I(B), IV, and V of defendant's brief because, as he acknowledges, they

were not raised before the PCR judge. "For sound jurisprudential reasons, with

few exceptions, '[we] will decline to consider questions or issues not properly

presented to the trial court when an opportunity for such a presentation is

available.'" State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson,

200 N.J. 1, 20 (2009)). We discern no basis to depart from that well-settled

principle here.

                                       B.

      In Point I, defendant argues the indictment alleged he committed all of the

charged offenses in Pemberton, but the State constructively amended the

indictment by introducing D.E.'s testimony he committed a sexual assault at a

Westampton motel. Defendant argues the purported constructive amendment

deprived him of his right to have a grand jury determine the charges and further


                                                                         A-0966-17T4
                                      11
deprived him of a fair trial because he was not adequately advised of the charges

against him.

      Defendant recognizes the State never moved to amend the indictment to

allege he committed any offenses in Westampton. He claims, however, the State

constructively amended the indictment by introducing evidence—D.E.'s

testimony—that a sexual assault occurred at a Westampton motel. Relying on

federal precedent, defendant claims an unconstitutional constructive amendment

of an indictment occurs when "evidence, arguments, or the [] court's jury

instructions effectively 'amend[] the indictment by broadening the possible

bases for conviction from that which appeared in the indictment.'" United States

v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) (quoting United States v. Lee, 359

F.3d 194, 208 (3d Cir. 2004)); see also Stirone v. United States, 361 U.S. 212,

218-19 (1960).

      "An indictment is constructively amended when, in the absence of a

formal amendment, the evidence and jury instructions at trial modify essential

terms of the charged offense in such a way that there is a substantial likelihood

that the jury may have convicted the defendant for an offense differing from the

offense the indictment returned by the grand jury actually charged." United

States v. Daraio, 445 F.3d 253, 259-60 (3d Cir. 2006) (footnote omitted); see


                                                                         A-0966-17T4
                                      12
also United States v. Thomas, 274 F.3d 655, 670 (2d Cir. 2001) (explaining an

unconstitutional constructive amendment of an indictment occurs where the

court's action creates "a substantial likelihood that the defendant may have been

convicted of an offense other than that charged in the indictment"). As the court

noted in McKee, where "the government can show with certainty that the jury

did not convict" based on the evidence the defendant claims resulted in the

constructive amendment, no reversal of the defendant's conviction is required.

506 F.3d at 231.

      Here, there was no constructive amendment of the indictment to include

the commission of the sexual assault in Westampton. As noted, the jury was

instructed to determine whether defendant committed each of the offenses in

Pemberton, and the jury determined beyond a reasonable doubt defendant

committed each offense in Pemberton, as charged in the indictment. The record

therefore establishes with certainty the jury convicted defendant solely of

offenses committed in Pemberton, and D.E.'s testimony about the Westampton

sexual assault did not result in a conviction for an offense not charged in the

indictment. See ibid. For that reason alone, we reject defendant's claim he was

denied a fair trial by any purported unconstitutional constructive amendment of

the indictment.


                                                                         A-0966-17T4
                                      13
      We are further unpersuaded by defendant's reliance on our Supreme

Court's decision in State v. Dorn, 233 N.J. 81 (2018). In pertinent part, the Court

addressed the circumstances under which an indictment may properly be

amended pursuant to Rule 3:7-4. Id. at 94-96. The Court held an indictment

may not be amended where "an amendment goes to the core of the

offense[,] . . . where it would prejudice a defendant in presenting his or her

defense," id. at 95, or where the amendment charges "a more serious offense,"

id. at 96. The Court's holding is inapposite here because there was no actual

amendment of the indictment and no constructive amendment resulting in the

jury's determination of any charges other than those in the indictment. The

indictment charged defendant with committing the offenses in Pemberton, and

the jury found he committed the offenses for which he was convicted in

Pemberton.

      We also reject defendant's claim because it is barred under Rule 3:22-5,

which provides "[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, . . . or in any appeal taken from such

proceedings." "[A] prior adjudication on the merits ordinarily constitutes a

procedural bar to the reassertion of the same ground as a basis for post -


                                                                           A-0966-17T4
                                       14
conviction review." State v. Preciose, 129 N.J. 451, 476 (1992) (citing R. 3:22-

5). "[A] defendant may not use a petition for post-conviction relief as an

opportunity to relitigate a claim already decided on the merits."        State v.

McQuaid, 147 N.J. 464, 483 (1997) (citation omitted).

      On his direct appeal from the denial of his first PCR petition, defendant

argued his trial counsel erred by failing to challenge the purported constructive

amendment of the indictment and D.E.'s testimony about the Westampton sexual

assault. He also argued the amendment and testimony resulted in a denial of his

right to due process and a fair trial. We rejected the argument, finding it lacked

sufficient merit to warrant discussion in a written opinion. G.L.D., No. A-1740-

13, slip op. at 11. The argument we rejected is substantially similar to, if not

identical to, the argument defendant currently makes in Point I of his brief on

appeal. See State v. Marshall, 173 N.J. 343, 351 (2002) (explaining Rule 3:22-

5 bars reconsideration on a second PCR petition of a claim that is "identical or

'substantially equivalent'" to a claim adjudicated in a first PCR petition). The

argument is therefore barred under Rule 3:22-5.

                                       C.

      In Point II, defendant argues the PCR court erred by rejecting his claim

counsel on his first PCR petition was ineffective and failed to comply with Rule


                                                                          A-0966-17T4
                                       15
3:22-6(d) by failing to argue, as requested, that trial counsel was ineffective by

failing to challenge the purported constructive amendment to the indictment.

Defendant claims the court therefore erred by dismissing his second PCR

petition based on a finding he did not demonstrate a prima facie claim of

ineffective assistance of PCR counsel.

      The right to the effective assistance of counsel extends to PCR counsel.

See State v. Rue, 175 N.J. 1, 18-19 (2002). To establish a prima facie claim of

ineffective assistance of counsel, a defendant must demonstrate a reasonable

likelihood of success under the two-prong standard established in Strickland v.

Washington, 466 U.S. 668, 686 (1984), and adopted by our Supreme Court in

State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland, a defendant first must

show that his attorney's handling of the matter "fell below an objective standard

of reasonableness." Strickland, 466 U.S. at 688. Second, a defendant must show

there exists a "reasonable probability that, but for counsel's unprofessiona l

errors, the result of the proceeding would have been different." Id. at 694.

      Defendant argues his PCR counsel failed to comply with Rule 3:22-6(d),

which requires PCR counsel "advance all of the legitimate arguments requested

by the defendant that the record will support," R. 3:22-6(d), and "make the best

available arguments in support of them," Rue, 175 N.J. at 19. When counsel


                                                                          A-0966-17T4
                                       16
deems a claim to be meritless, counsel must still "list such claims in the petition

or amended petition or incorporate them by reference." R. 3:22-6(d); accord

State v. Webster, 187 N.J. 254, 257-58 (2006). The Rule also permits the

submission of pro se briefs asserting a defendant's arguments. R. 3:22-6(d).

      Defendant's request that his PCR counsel argue trial counsel was

ineffective by failing to challenge the purported constructive amendment of the

indictment went unheeded. PCR counsel did not believe the argument had merit,

explained that for strategic reasons she did not believe the argument should be

made, and informed defendant she would not make the argument on his behalf.

In the end, PCR counsel did not make the requested argument, list it for the

court, or incorporate it by reference as required by Rule 3:22-6(d). In other

words, PCR counsel did not comply with the Rule's requirements. 2

      In Webster, the Court determined, under the circumstances presented,

PCR counsel's failure to comply with the requirements of Rule 3:22-6(d)

required a remand to the PCR court to address the omitted arguments in the first

instance. 187 N.J. at 257-58. In Rue, the Court determined a remand was


2
  As noted, Rule 3:22-6(d) permits the filing of pro se briefs, and defendant
opted not to file his pro se brief following his communications with PCR
counsel. Based on the record presented, however, we do not find defendant's
apparent decision not to file a pro se brief relieved PCR counsel of her
obligations under the Rule.
                                                                           A-0966-17T4
                                       17
required where, in PCR counsel's arguments to the court, counsel "counter[ed]

every one of" the claims asserted in the defendant's PCR petition, and

"characteriz[ed] the entire petition as meritless." 175 N.J. at 19. The Court

found, under those circumstances, it was appropriate to remand the PCR

petition, assign the defendant new PCR counsel, and provide the defendant with

a new hearing on the petition. Ibid.

      Although defendant's PCR counsel failed to comply with Rule 3:22-6(d)'s

requirements, a remand is not required. There are no disputed factual issues

concerning defendant's constructive amendment argument; the indictment

alleged all of the charged crimes occurred in Pemberton, and it is undisputed

D.E. testified without objection about the Westampton sexual assault.

      Whether the testimony resulted in an unconstitutional constructive

amendment of the indictment presents a purely legal issue that we may properly

decide de novo. See Harris, 181 N.J. at 419. Thus, although PCR counsel should

have made the argument as required under Rule 3:22-6, we may properly decide

the issue without a remand.     Moreover, we have addressed the issue and

determined D.E.'s testimony did not result in an impermissible constructive

amendment of the indictment. As noted, the jury convicted defendant only of

crimes committed in Pemberton, as alleged in the indictment. His trial counsel


                                                                        A-0966-17T4
                                       18
was not ineffective by failing to make the meritless argument there was an

unconstitutional constructive amendment of the indictment. See, e.g., State v.

O'Neal, 190 N.J. 601, 619 (2007) (holding "[i]t is not ineffective assistance of

counsel for defense counsel not to file a meritless motion . . . ."); State v.

Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal

arguments does not constitute ineffective assistance of counsel."). Similarly,

his PCR counsel was not constitutionally ineffective by failing to make an

argument, even one suggested by defendant, that lacks support in the facts or

applicable law. We therefore reject defendant's claim he is entitled to either a

remand or reversal of his conviction based on his PCR counsel's failure to argue

his trial counsel was ineffective by failing to object to the purported constructive

amendment of the indictment.

                                        D.

      In Point III of his brief, defendant argues his trial counsel was ineffective

because he failed to challenge the purported constructive amendment of the

indictment, and his appellate counsel was ineffective by failing to argue, on the

appeal from the denial of his first PCR petition, that PCR counsel was ineffective

by failing to argue trial counsel was ineffective for not challenging the purported

constructive amendment. We find the arguments are without sufficient merit to


                                                                            A-0966-17T4
                                        19
warrant discussion in a written opinion for the reasons we have already

explained. R. 2:11-3(e)(2).

      We reiterate only defendant's claim his trial counsel erred by failing to

object to the alleged constructive amendment of the complaint was addressed

and rejected in our decision affirming the denial of his first PCR petition,

G.L.D., No. A-1740-13, slip op. at 2-3, and, as a result, the claim is barred under

Rule 3:22-5. Additionally, defendant's claims concerning trial counsel and

appellate counsel are founded on a false premise—that there was an

unconstitutional constructive amendment of the indictment. Neither counsel

was ineffective by failing to make a meritless argument. O'Neal, 190 N.J. at

619; Worlock, 117 N.J. at 625; see also State v. Gaither, 396 N.J. Super. 508,

515-16 (App. Div. 2007) (holding appellate counsel is not "required to advance

every claim insisted upon by a client on appeal"); State v. Morrison, 215 N.J.

Super. 540, 549 (App. Div. 1987) (noting "appellate counsel does not have a

constitutional duty to raise every nonfrivolous issue requested by the

defendant").

      Any arguments made by defendant we have not expressly addressed are




                                                                           A-0966-17T4
                                       20
without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2).

      Affirmed.




                                                                     A-0966-17T4
                                    21
