On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-03-0270.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2007
Before Judges Collester and C.S. Fisher.
Tried to a jury, defendant D.C. was convicted of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), (counts one and two), and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), (counts three and four). The trial judge sentenced defendant to an aggregate term of twenty years imprisonment with ten years parole ineligibility. On direct appeal defendant made the following arguments:
POINT I -- THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (Not Raised Below.)
POINT II -- THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT FRESH COMPLAINT TESTIMONY. (Partially Raised Below.)
POINT III -- THE TRIAL COURT ERRED BY FAILING TO USE LIMITING INSTRUCTIONS TO THE JURY REGARDING THEIR UTILIZATION OF FRESH COMPLAINT TESTIMONY. (Not Raised Below.)
POINT IV -- THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
On October 11, 2000, we affirmed defendant's conviction and sentence in a per curiam opinion. Defendant's petition for certification was denied by the Supreme Court on February 13, 2001.
The defendant filed a pro se petition for post-conviction relief (PCR) and for assignment of counsel to represent him on the application. The trial judge did not appoint counsel and denied the petition on August 15, 2002, as procedurally barred by R. 3:22-4 and R. 3:22-5. On appeal we summarily reversed and remanded to the trial court for assignment of counsel as mandated by R. 3:22-6(a) and to reconsider the PCR petition in light of any submission by counsel. See State v. King, 117 N.J. Super. 109, 111-12 (App. Div. 1971).
Pursuant to our direction counsel was appointed to represent defendant. Appointed counsel raised additional arguments to defendant's pro se application, alleging that defendant was denied the effective assistance of trial and appellate counsel in part because trial counsel waived a Michaels hearing,*fn1 and appellate counsel did not raise the issue on appeal. The trial judge denied the PCR petition without an evidentiary hearing on grounds that defendant failed to demonstrate a prima facie of ineffective assistance of trial or appellate counsel because he did not demonstrate a reasonable likelihood of succeeding under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987). On appeal of the September 19, 2006 denial of his PCR petition, defendant makes the following arguments:
POINT I -- THE COURT ERRED IN NOT GRANTING DEFENDANT AN EVIDENTIARY HEARING ...