On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 86-03-0365.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and S.L. Reisner.
Defendant George C. Riley appeals from an order of the Law Division denying his fifth petition for post-conviction relief (PCR). We affirm.
On appeal, defendant pro se asserts the following issues in his main brief:
I. THE 20-YEAR SENTENCE IMPOSED UPON DEFENDANT IS ILLEGAL DUE TO FAILURE OF COUNT 3 TO ALLEGE SPECIFIC SEXUAL PURPOSE ELEMENT IN CHARGING VIOLATION OF N.J.S.A. 2C:14-1d, WAS FATALLY DEFECTIVE, WITHOUT WHICH THE CHARGE IS HARASSMENT UNDER N.J.S.A. 2C:33-4a.
II. DEFENDANT WAS DENIED HIS RIGHT OF INDICTMENT BY GRAND JURY AS [COUNT] 3 FAILED TO CHARGE THE (5) ESSENTIAL ELEMENTS OF OFFENSE FOR WHICH DEFENDANT STANDS CONVICTED, AND DENIED A FAIR TRIAL WHEN THE JUDGE INCLUDED THE MISSING ELEMENTS IN HIS JURY INSTRUCTIONS, AT THE PROSECUTOR'S REQUEST, AT THE CLOSE OF THE STATE'S CASE.
III. DEFENDANT'S CLAIMS FOR RELIEF ASSERTED WERE NOT PREVIOUSLY ADJUDICATED ON THE MERITS, THE LACK OF ALLEGATIONS IN COUNT 3 REVEALS A [JURISDICTIONAL] DEFECT ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS R. 3:22-4(b) AND (c); ALTERNATIVELY, THE TIME BAR IS ENTITLED TO RELAXATION PURSUANT TO R. 3:22-12 AND R. 1:1-2.
IV. THE CHARGE OF ATTEMPTED SEXUAL ASSAULT WAS SO TOTALLY DEVOID OF EVIDENTIARY SUPPORT AS TO RENDER DEFENDANT'S CONVICTION UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT [Partially Raise[d] Below] [Thompson v. Louisville, 80 S.Ct. 624 (1969)].
V. THE COURT SHOULD ACCEPT JURISDICTION OF THE ISSUES RAISED AS IF THIS WAS A DIRECT APPEAL.
In a pro se reply brief, defendant asserts the following issues:
I. THE STATE'S ARGUMENT THAT DEFENDANT IS BARRED FROM POST-CONVICTION RELIEF, IS INCORRECT AS COUNT 3 FAILS TO STATE AN OFFENSE AND IT IS VOID, THUS BARS THE JUDGMENT FROM HAVING ANY RES JUDICATA EFFECT.
A. THE STATE'S ARGUMENT THAT DEFENDANT'S SENTENCE IS NOT ILLEGAL, IS INCORRECT IN VIEW OF THE FAILURE OF INDICTMENT TO CHARGE THE KEY ELEMENTS OF SCIENTER FAILED TO STATE A SECOND-DEGREE OFFENSE.
B. THE STATE'S ARGUMENT THAT DEFENDANT'S LACK OF INDICTMENT CLAIM IS PROCEDURALLY BARRED IS BASED UPON A FAULTY PREMISE, SINCE JURISDICTIONAL DEFECTS IN INDICTMENTS MAY NOT BE DEFAULTED.
C. THE STATE'S ARGUMENT THAT NO EXCEPTIONS APPLY TO THE PROCEDURAL BARS, IS PATENTLY INCORRECT SINCE INDICTMENT DEFECTS INVOLVE CLAIMS OF FUNDAMENTAL INJUSTICE WITHIN THE EXCEPTIONS OF R. 3:22-4(b)(c) AND R. 1:1-2.
II. THE STATE'S LACK OF OPPOSITION TO DEFENDANT'S TO DEFENDANT'S [SIC] UNCONSTITIONAL CONVICTION UNDER THOMPSON V. LOUISVILLE, OF SECOND-DEGREE ATTEMPTED SEXUAL CONTACT BASED UPON EVIDENCE OF A DISORDERLY PERSONS OFFENSE.
In a pro se supplemental brief, defendant asserts the following issues:
I. DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE ON THE ISSUES SPECIFIED HEREIN SUCH THAT THE DEFICIENT PERFORMANCE CERTAINLY PREJUDICED THE OUTCOME OF DEFENDANT'S PCR PROCESS.
A. DURING THE PCR PROCEEDINGS[,] COUNSEL FAILED TO COMMUNICATE WITH DEFENDANT, AND FAILED TO ARGUE THAT FIVE (5) MISSING INDISPENSABLE ESSENTIAL ELEMENTS FROM INDICTMENT; AND MISAPPLIED SECTION (C) OF R. 3:10-2 RATHER THAN SECTION (E) TO SUBSTANTIVE JURISDICTIONAL DEFECT IN COUNT 3.
B. PCR COUNSEL FAILED TO PROVIDE ADEQUATE LEGAL ASSISTANCE BECAUSE DEFENDANT'S ILLEGAL SENTENCE IS NOT BASED UPON EXCESSIVE SENTENCE, BUT UPON THE CHARGING DEFECT IN COUNT 3, I.E., FAILURE TO ALLEGE INDISPENSABLE CULPABLE MENTAL STATE AS ELEMENT OF OFFENSE RENDERS COUNT 3 FUNDAMENTALLY DEFECTIVE AND THE SENTENCE ILLEGAL.
C. PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO SUPPLEMENT PCR MOTION WITH THE CLAIM THAT DEFENDANT WAS DENIED DUE PROCESS WHEN THE PUBLIC DEFENDER WITHDREW [FROM] HIS FIRST APPEAL, AND NO RECORD EXISTS OF ANY COURT INVESTIGATING WHETHER DEFENDANT HAS MADE A KNOWING AND VOLUNTARY WAIVER OF COUNSEL, BECAUSE, NOT SUBJECT TO PROCEDURAL DEFAULT.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se and we are satisfied that none of them is of any merit. R. 2:11-3(e)(2). We explain our reasons why.
By way of background, in 1986, defendant was indicted, tried and convicted of attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(1) (count one); attempted endangerment of the welfare of a child, N.J.S.A. 2C:5- 1 and N.J.S.A. 2C:24-4(a) (count two); and attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b) (count three). The court merged the attempted sexual assault and attempted endangering into the attempted aggravated sexual assault and sentenced defendant to an extended term, imposing a sentence of 20 years in prison subject to a parole ineligibility period of 10 years.
On direct appeal, we reversed defendant's conviction of attempted aggravated sexual assault on the basis of insufficiency of evidence. State v. Riley, No. A-1009-86T4 (App. Div. Dec. 11, 1987) (slip op. at 8-9). We affirmed, however, defendant's conviction of attempted sexual assault, into which lesser included offenses of which he was also convicted had been merged. Ibid. We also vacated the sentence, a twenty-year term subject to a ten-year parole ineligibility period, which had been imposed for the attempted aggravated sexual assault, and remanded for resentencing. Ibid. We pointed out, however, that since both attempted aggravated sexual assault and attempted sexual assault are second-degree crimes, the ...