State v. M.C.-A., A-4515-18
| Decision Date | 26 July 2021 |
| Docket Number | A-4515-18 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. M.C.-A., Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2020
On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Indictment No. 13-081143.
Joseph E. Krakora, Public Defender, attorney for appellant (John J Bannan, Designated Counsel, on the brief).
Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Ostrer and Vernoia.
Defendant M.C.-A. appeals from the trial court's order denying without an evidentiary hearing, his petition for post-conviction relief (PCR).[1] Defendant collaterally attacks his jury trial conviction of multiple crimes arising out of his sexual assault of his step-daughter, E.D. (Edith), when she was between nine and sixteen years old. The convictions include two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); one count of first-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(3); and four second-and third-degree crimes. Defendant received an aggregate thirty-four-year custodial term, subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, and the No Early Release Act, N.J.S.A. 2C:43-7.2.
We assume the reader's familiarity with the facts that supported defendant's conviction, which we reviewed in detail in affirming defendant's conviction and sentence on direct appeal. See State v. M.C.-A., No. A-1509-14 (App. Div. Aug. 8, 2017) (M.C.-A. I), certif. denied, 232 N.J. 104 (2018).
Defendant's pro se petition identified no grounds for relief, stating he would provide them after counsel was assigned. In his counseled petition, he asserted his trial counsel was ineffective. He identified two issues that he claimed he brought to his attorney's attention, but which his attorney ignored.
First, he contended that counsel did not adequately pursue Edith's alleged recantation. Defendant stated that Edith sent him an "email/Facebook Instant Message where she apologized for accusing me and recanted her statements." Defendant claimed his step-daughter wrote, Defendant claimed he "accidentally deleted the message." He asked his attorney to retain an expert to retrieve the message and his attorney did not do so, and his attorney did not cross-examine Edith about the alleged message at trial.
Second, he contended that his former co-worker A.H. (Andrew) - who testified that defendant told him that "what happened between him and his stepdaughter was 'mutual, '" M.C.-A. I, (slip op. at 4) - was an "illegal immigrant" who used a false name. Defendant contended that he asked his trial attorney to confront Andrew about his immigration status, but his counsel did not.
Notably, defendant made these factual allegations in a "verified petition" that was not properly verified. Rather, he stated only that his allegations were "true to the best of [his] knowledge and belief. "
In his counseled brief, defendant amplified these points under the rubric that "counsel failed to conduct [an] investigation, failed to consult an expert witness and failed to properly present the defense." He also contended that counsel did not vigorously cross-examine defendant's wife L.C. (Lucy) to elicit evidence supporting his claim that she worked as a go-go dancer, and she had an affair with Andrew, the co-worker who testified against him.
Defendant also argued in his counseled brief that trial counsel was ineffective by failing to object to testimony from the State's Child Sexual Abuse Accommodation Syndrome (CSAAS) expert (which we summarized in M.C.-A. I, (slip op. at 12)). In State v. J.L.G., 234 N.J. 265 (2018), the Court held of N.J.R.E. 702. "In particular, the State must show that the evidence is beyond the understanding of the average juror," which will be a case-by-case, fact-sensitive determination. Ibid. At oral argument, PCR counsel contended that the Supreme Court's holding in J.L.G. should apply to defendant's case.
The PCR court denied the petition in a written decision that focused on the CSAAS issue. The court noted we rejected defendant's claim on direct appeal that the decision to permit the CSAAS testimony was plain error. Assuming for argument's sake that J.L.G. applied to defendant's case (although defendant's appeal was no longer pending when J.L.G. was decided), the PCR court held it did not warrant PCR, because Edith's testimony was not the "lynchpin" of the State's case. In so holding, the PCR court referred to a factor in our plain error analysis in G.E.P., after we held that J.L.G. applied to the pipeline cases. See State v. G.E.P., 458 N.J.Super. 436, 454 (App. Div. 2019) ().[2] However, the Supreme Court held that the other evidence of guilt supported affirming G.E.P.'s conviction. G.E.P., 243 N.J. at 390-93. In any event, the PCR court noted the victim's testimony here was not the "lynchpin" of the prosecution, because Edith's sister K.C. (Kelly), her mother Lucy, and defendant's co-worker provided "significant corroborating evidence" of defendant's guilt; and, the deleted pictures retrieved from the camera located in defendant's truck depicted sex acts occurring between defendant and the victim.
The PCR court also briefly addressed defendant's claims that trial counsel failed to investigate a defense, which we discuss at greater length below. The court found that even if the co-worker testified falsely, "the result of the proceedings would not have been different" because of "the strength of the evidence supporting [defendant's] guilt." With little elaboration, the PCR court also rejected defendant's claim that trial counsel was ineffective by failing to retain an expert witness to investigate the "email/Facebook Instant Message."
In his appeal, defendant reasserts the claims he presented to the PCR court, and he asserts two new ones:
Defendant also filed a pro se brief, advancing one claim:
When a PCR court does not hold an evidentiary hearing, we "conduct a de novo review of both the factual findings and legal conclusions of the PCR court." State v. Blake, 444 N.J.Super. 285, 294 (App. Div. 2016) (quoting State v. Harris, 181 N.J. 391, 421 (2004)). To obtain an evidentiary hearing on a PCR petition, a defendant must establish a prima facie case for relief, demonstrate there exist material issues of disputed fact, and show that an evidentiary hearing is necessary to resolve the claims. R. 3:22-10(b). We review an order declining to hold an evidentiary hearing for an abuse of discretion. State v. Preciose, 129 N.J. 451, 462 (1992).
As defendant rests all his claims for relief on his trial counsel's alleged ineffective assistance, we review his claims under the familiar two-pronged standard in Strickland v. Washington, 466 U.S. 668 (1984), which our Court adopted in State v. Fritz, 105 N.J. 42 (1987). To prevail on an ineffective-assistance-of-counsel claim, a defendant must establish: (1) his counsel performed deficiently and made errors so egregious he was not functioning effectively as the Sixth Amendment guarantees; and (2) "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 687, 694.
We first dispatch the CSAAS issue, which defendant raises in his counseled and pro se briefs. There is no merit to defendant's contention that his trial counsel, during a trial in 2014, was ineffective by failing to mount a challenge to the admissibility of CSAAS testimony, which at that point had been well-established. See Bullock v Carver, 297 F.3d 1036, 1052-53 (10th Cir. 2002) ( ineffective assistance claim "where a defendant 'faults his former counsel not for failing to find existing law, but for failing to predict future law'" (quoting United States v. Gonzalez-Lerma, 71 F.3d 1537, 1542 (10th Cir. 1995) (overruled on...
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