July 18, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANK ANDERSON, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 95-12-2232.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 27, 2007
Before Judges Skillman and King.
On December 22, 1995 the Hudson County Grand Jury returned Indictment Number 12-95-2232 against defendant, Frank J. Anderson, Jr., charging him as follows: Count One, first-degree aggravated sexual assault by sexual penetration during the commission or attempted commission of a burglary, contrary to N.J.S.A. 2C:14-2a; Count Two, first-degree aggravated sexual assault by sexual penetration while armed with a weapon, contrary to N.J.S.A. 2C:14-2a; Count Three, second-degree sexual assault by sexual penetration with the use of physical force or coercion, contrary to N.J.S.A. 2C:14-2c; Count Four, third-degree aggravated criminal sexual contact during the commission or attempted commission of a burglary, contrary to N.J.S.A. 2C:14-3a; Count Five, third-degree aggravated criminal sexual contact while armed with a weapon, contrary to N.J.S.A. 2C:14-3a; Count Six, fourth-degree criminal sexual contact with the use of physical force or coercion, contrary to N.J.S.A. 2C:14-3b; Count Seven, second-degree burglary while armed with a deadly weapon, contrary to N.J.S.A. 2C:18-2; Count Eight, third-degree burglary, contrary to N.J.S.A. 2C:18-2; Count Nine, third-degree possession of a knife for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and Count Ten, fourth-degree possession of the knife under circumstances not manifestly appropriate for such lawful uses as it may have, contrary to N.J.S.A. 2C:39-5d.
On August 5, 12, 13, 14 and 15, 1997 a trial was held before Judge Fuentes and a jury. Defendant made a motion for the entry of a judgment of acquittal at the end of the State's case which was denied. Defendant was found guilty on Counts Two, Three, Five, Six, Nine and Ten; the jury acquitted as to Counts One, Four, Seven and Eight.
On February 13, 1998 the judge merged Counts Three, Five and Six into Count Two and merged Count Nine into Count Ten. The judge sentenced defendant on Count Two, to a term of imprisonment of twenty years with a ten-year period of parole ineligibility and on Count Nine to a five-year term of imprisonment, concurrent with Count Two. Fines and penalties were also imposed.
Defendant, through the Office of the Public Defender, filed a notice of appeal. On December 6, 2000 this court affirmed defendant's convictions on all counts (A-5619-97T4); however, on an issue regarding use of defendant's Georgia conviction, this court rejected defendant's argument without prejudice to its resubmission on a petition for post-conviction relief. On March 27, 2001 defendant's petition for certification to the Supreme Court was denied. State v. Anderson, 167 N.J. 636 (2001).
On August 5, 2004 a hearing for post-conviction relief was conducted by Judge DePascale. On October 21, 2004 the petition for post-conviction relief was denied in an oral decision. Defendant now appeals this denial of his PCR petition. He raises two points in his initial brief:
POINT ONE - DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL BY THE U.S. CONST., AMENDS. VI, XIV; NJ CONST. ART. I, PAR. 10.
POINT TWO - THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SENTENCED THE DEFENDANT TO A GROSSLY DISPROPORTIONATE MAXIMUM TERM.
In his supplemental pro se brief defendant raises these additional arguments:
POINT I - THE TRIAL COURT ERRED BY DENYING DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUES WHERE A PRIMA FACIE WAS ESTABLISHED.
A. THE PROSECUTOR COMMITTED MISCONDUCT BY WITHHOLDING EVIDENCE DURING TRIAL.
B. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO VIEW DISCOVERY PRIOR TO TRIAL.
We affirm for the following reasons.
We do not treat this as an appeal solely from denial of defendant's motion for reconsideration of the denial of his petition for PCR, as the prosecutor urges. We construe the notice of appeal as an appeal from the denial of defendant's petition for PCR because it appeals from "the final order denying petition for post-conviction relief entered on March 7, 2006" by Judge DePascale.
On the merits, we reject defendant's ineffective assistance of counsel claim. Even if defense counsel had moved to exclude evidence of defendant's conviction under the Georgia First Offender law at the trial in August 1997, see N.J.R.E. 609 (prior convictions admissible to affect credibility), we see no likelihood of any change of outcome. Only after defendant's trial did the Georgia Supreme Court hold that such a conviction was improper for impeachment purposes. The Georgia Court of Appeals in June 1999 stated:
Counsel failed to object to the introduction of the first offender sentence of the second alibi witness, which is not surprising since it was admissible for general impeachment purposes when the trial took place in 1996. See Favors v. State, 234 Ga. 80, 86 (3) (214 S.E.2d 645) (1975). Not until November 1997 did Matthews v. State, 268 Ga. 798, 803 (4) (493 S.E.2d 136) (1997), overrule Favors and hold first offender sentences were not so admissible. It can hardly be deficient performance for counsel to not object to evidence that at the time of trial was admissible; even [the defendant's] post-judgment counsel failed to claim the evidence as inadmissible in his pre-Matthews motion for new trial or at the hearing thereon. Trial counsel cannot be expected to be clairvoyant. [Maddox v. State, 521 S.E.2d 581, 584 (Ga. App. 1999).]
We do not think that counsel was ineffective by not anticipating a change in Georgia law and Judge Fuentes almost certainly would have followed extant Georgia law at defendant's August 1997 trial if called upon to rule on the point. We find defendant's ineffectiveness claim without any merit, especially in view of his confession and the overwhelming evidence of guilt produced at trial to counter the defense of consent.
Finally, defendant's claim of a grossly disproportionate sentence is clearly without merit. R. 2:11-3(e)(2). State v. Natale, 184 N.J. 458, 494 (2005), is inapplicable as this case was not within the "pipeline" for Natale for retroactivity purposes. Defendant did not have a direct appeal pending on August 2, 2005, when Natale was decided. His direct appeal process ended in December 2000.
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