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State v. S.E.D.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 29, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
S.E.D.,*FN1 DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment Nos. 99-06-0126 and 00-05-0131.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 11, 2008

Before Judges Winkelstein, Fuentes and Gilroy.

Defendant appeals from the October 30, 2006 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged by a Hunterdon County Grand Jury under Indictment Nos. 99-06-00126 and 00-05-00131 with having committed various criminal offenses against his estranged wife, one of which endangered the lives of his four children. Tried to a jury, defendant was convicted of three counts of third-degree burglary, N.J.S.A. 2C:18-2a(1) (Counts One and Two of Indictment No. 99-06-00126 and Count One of Indictment No. 00-05-00131); four counts of second-degree endangering the welfare of a child, one count as to each of his children, N.J.S.A. 2C:24-4a (Counts Three, Four, Five, and Six of Indictment No. 99-06-00126); third-degree arson, N.J.S.A. 2C:17-1b(1) and (2) (Count Eight of Indictment No. 99-06-00126); and second-degree aggravated arson, N.J.S.A. 2C:17-1a(2) (Count Two of Indictment No. 00-05-00131). Defendant was found not guilty on Count Seven of Indictment No. 99-06-00126, charging him with second-degree aggravated arson, N.J.S.A. 2C:17-1a(1) or (2). Because the trial facts were discussed at length in our prior opinion, State v. S.E.D., No. A-5318-01 (App. Div. Dec. 26, 2003), it is unnecessary for us to detail the evidence against defendant for these crimes.

On March 8, 2002, defendant was sentenced on Indictment 99-06-00126 as follows: on Count One to a term of five years of imprisonment; on Counts Three, Four, Five and Six to terms of ten years of imprisonment with five years of parole ineligibility; on Count Eight to a term of five years of imprisonment. Count Two was merged with Count Eight. All sentences run concurrent with each other but consecutive to the sentences imposed under Indictment 00-05-00131. On the second indictment, defendant was sentenced to a term of ten years of imprisonment on Count Two, with five years of parole ineligibility. Count One was merged with Count Two. Defendant's aggregate sentence was twenty years, ten years without parole.

On direct appeal, defendant argued:

POINT I.

THE COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN GRANTING THE STATE'S MOTION FOR JOINDER.

A. SINCE THE ISSUE OF DEFENDANT'S "MOTIVE" WAS NOT IN GENUINE DISPUTE, EVIDENCE RELATING TO THE OCTOBER 27, 1998 BURGLARY AND ARSON CHARGED IN INDICTMENT NO. 00-05-0131 WOULD NOT HAVE BEEN ADMITTED IN A TRIAL FOR THE BURGLARY, ARSON, AND ENDANGERING OFFENSES ALLEGED IN INDICTMENT NO. 99-06-0126.

B. THE DEFENDANT WAS UNFAIRLY PREJUDICED BY JOINDER.

POINT II.

THE OTHER BAD ACTS TESTIMONY WAS NOT ADMISSIBLE UNDER N.J.R.E. 404(b) BECAUSE THE DEFENDANT'S MOTIVE WAS NOT AN ISSUE GENUINELY IN DISPUTE.

POINT III.

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT THE DEFENDANT'S GUILT ON THE CRIMES CHARGED IN THE INDICTMENTS MUST BE BASED ON EVIDENCE INDEPENDENT OF THE OTHER CRIMES TESTIMONY OF THE WITNESSES CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).

POINT IV.

THE COURT'S CHARGE WAS PREJUDICIALLY DEFECTIVE BECAUSE IT FAILED TO PROVIDE ANY GUIDANCE TO THE JURY ON HOW IT SHOULD ASSESS THE CREDIBILITY OF MICHAEL FONTANEZ AND CHRISTOPHER MCKINNEY. (NOT RAISED BELOW).

POINT V.

THE TRIAL COURT'S RESPONSE TO THE DISCOVERY VIOLATIONS COMMITTED BY THE STATE CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

A. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A MISTRIAL BECAUSE THE STATE'S DISCOVERY VIOLATIONS RESULTED IN THE LOSS OF THE EXCULPATORY VIDEOTAPED STATEMENT OF [Jer.D.].

B. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S REQUEST FOR AN ADJOURNMENT.

C. THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT THE STATE VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT TO HAVE ALL THE EVIDENCE PRESERVED. (NOT RAISED BELOW).

POINT VI.

THE PROSECUTOR'S COMMENTS IN SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

A. THE PROSECUTOR IMPROPERLY URGED THE JURY TO CONSIDER THE DEFENDANT'S DECISION TO TESTIFY AS EVIDENCE OF HIS GUILT.

B. THE PROSECUTOR IMPROPERLY ARGUED THAT THE JURY SHOULD NOT "TRUST" THE DEFENDANT WITH A VERDICT OF NOT GUILTY.

POINT VII.

IMPOSITION OF THE AGGREGATE TWENTY (20) YEAR SENTENCE WITH TEN (10) YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE SENTENCING COURT'S DISCRETION.

A. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO TERMS OF IMPRISONMENT IN EXCESS OF THE PRESUMPTIVE TERMS FOR SECOND AND THIRD DEGREE CRIMES.

B. THE COURT ABUSED ITS DISCRETION BY IMPOSING PERIODS OF PAROLE INELIGIBILITY.

C. THE COURT ABUSED ITS DISCRETION BY RUNNING THE SENTENCES IMPOSED ON INDICTMENT NO. 99-06-0126 AND INDICTMENT NO. 00-05-0131 CONSECUTIVE TO EACH OTHER.

We affirmed the convictions and sentences imposed. (slip op. at 5). On March 16, 2004, the Supreme Court denied defendant's petition for certification. State v. S.E.D., 179 N.J. 372 (2004). On September 20, 2005, defendant filed a pro se petition for PCR, raising the following issues:

POINT I.

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II.

DEFENDANT'S SENTENCE WAS ILLEGAL BECAUSE IT VIOLATED THE UNITED STATES SUPREME COURT DECISIONS IN BLAKELY V. WASHINGTON, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004) AND APPPRENDI V. NEW JERSEY, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000).

On June 16, 2006, assigned counsel filed an amended petition, explaining that defendant's ineffective assistance of counsel claim was based on trial counsel's failure to: 1) effectively impeach the credibility of the State's biased witnesses; and 2) call witnesses who would have testified in support of the defense. Oral argument was conducted on defendant's petition on October 18, 2006, with the PCR court reserving decision. On October 30, 2006, the PCR court entered an order denying defendant's petition for PCR, supported by a twenty-two page written decision.

In this appeal, defendant argues:

POINT I.

DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF INADEQUATE PREPARATION AND INEFFECTIVE REPRESENTATION BY HIS TRIAL COUNSEL.

A. TRIAL COUNSEL'S FAILURE TO PREPARE FOR OR CONDUCT A MEANINGFUL CROSS[-]EXAMINATION OF TARA AND AUDREY RAUSCH VIOLATED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

B. TRIAL COUNSEL'S FAILURE TO CALL DONALD POWELL AS A WITNESS VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

C. TRIAL COUNSEL'S FAILURE TO RETAIN AN ARSON EXPERT TO INVESTIGATE THE STATE'S CLAIMS AND TESTIFY AS A WITNESS VIIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

D. TRIAL COUNSEL'S FAILURE TO OBTAIN THE VIDEOTAPE IN WHICH DEFENDANT'S SON CONFESSED TO STARTING THE FIRE VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

E. TRIAL COUNSEL'S FAILURE TO PREPARE FOR OR CONDUCT A MEANINGFUL CROSS-EXAMINATION OF MICHAEL FONTANEZ VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

F. TRIAL COUNSEL'S LACK OF PREPARATION IN FAILING TO OBTAIN IMPEACHMENT MATERIAL AS TO KRISTOFER MCKENNEY AND CHRISTOPHER VOLEKAS VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

G. TRIAL COUNSEL'S FAILURE TO PRESENT WITNESSES TO TESTIFY ON DEFENDANT'S BEHALF AT TRIAL VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II.

THE CUMULATIVE EFFECT OF ERRORS AT TRIAL CAUSED BY DEFENSE COUNSEL'S LACK OF PREPARATION AND INVESTIGATION RESULTED IN THE DENIAL OF DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III.

THE LAW DIVISION ERRONEOUSLY HELD THAT DEFENDANT WAS PROCEDURALLY BARRED FROM CHALLENGING HIS CONVICTION ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV.

THE LAW DIVISION ERRED IN DENYING DEFENDANT'S REQUEST FOR A HEARING ON HIS PETITION FOR POST[-]CONVICTION RELIEF.

POINT V.

THIS COURT SHOULD REMAND TO THE LAW DIVISION TO ALLOW FURTHER DISCOVERY ON DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF. (NOT RAISED BELOW)

POINT VI.

THIS MATTER SHOULD BE REMANDED TO THE TRIAL COURT IN VIEW OF THE STATE'S ASSERTION THAT DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON HIS PCR PETITION. (NOT RAISED BELOW)

POINT VII.

POST[-]CONVICTION RELIEF SHOULD BE GRANTED TO CORRECT THE EXCESSIVE SENTENCE IMPOSED ON DEFENDANT.

II.

Defendant argues that the PCR court erred in concluding that his claims of ineffective assistance of counsel were procedurally barred pursuant to Rule 3:22-4 because the arguments could have been raised on direct appeal. Defendant contends that his ineffective assistance of counsel claims were appropriately raised in the PCR proceeding because the claims were not raised on direct appeal and "could not reasonably have been [so] raised" on direct appeal. We agree.

Rule 3:22-4 provides:

Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

Nevertheless, "[i]neffective assistance of counsel claims are ordinarily exempt from the bar of this rule." Pressler, Current N.J. Court Rules, comment 5 on R. 3:22-4 (2009).

PCR provides "a defendant with a procedure for challenging the legality of a conviction or sentence on grounds which could not have been raised on a direct appeal"; but it "is not a substitute for a direct appeal, and a defendant who relies upon grounds which could have been raised in a prior proceeding may be barred from post-conviction relief." State v. Guzman, 313 N.J. Super. 363, 372 (App. Div.), certif. denied, 156 N.J. 424 (1998). "However, because ineffective-assistance of counsel claims are grounded in the Sixth Amendment and the New Jersey Constitution, petitioners are rarely barred from raising such claims on post conviction review." Id. at 372-73 (citation and quotations omitted). "[I]neffective assistance of counsel claims... are congruous with the exceptions to the procedural bar of Rule 3:22-4." State v. Moore, 273 N.J. Super. 118, 125, (App. Div.), certif. denied, 137 N.J. 311 (1994).

Accordingly, defendant was not procedurally barred by Rule 3:22-4 from raising claims of ineffective assistance of counsel in his PCR petition. However, we find the PCR court's ruling on this issue harmless, R. 2:10-2, because the court also addressed each of defendant's ineffective assistance of counsel claims on the merits.

III.

We have considered defendant's remaining arguments in light of the record and applicable law. We conclude that the arguments are without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Mahon in his well-reasoned, written opinion of October 30, 2006. Nevertheless, we add the following comments.

IV.

In Point I, defendant argues that he was denied effective assistance of trial counsel, contending counsel "committed numerous unprofessional errors, resulting from [counsel's] lack of preparation" and "[t]here exists a reasonable probability that those errors materially affected the outcome of the trial." Defendant also contends in Point III that the PCR court erred in denying him a plenary hearing on his PCR petition. We disagree.

The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination of whether a defendant has made a prima facie showing of the claim. Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. State v. Preciose, 129 N.J. 451, 462 (1992).

Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). We are satisfied that the PCR court appropriately concluded that defendant's petition did not in and of itself present sufficient grounds for an evidentiary hearing.

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.*fn2 Ibid.; see State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S.Ct. at 2068, 80 L.Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). In assessing counsel's representation, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Accordingly, acts or omissions of counsel must amount to more than mere tactical strategy. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95.

To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard:'[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).

Defendant argues that trial counsel neither prepared for, nor conducted, a meaningful cross-examination of Audrey Rausch or her daughter, Tara Rausch, violating his right to effective assistance of counsel. Defendant claims that counsel failed to effectively cross-examine the women on the discrepancies between what Detective Ronald Cozze of the Flemington Borough Police Department had reported they had told him on the day of the house fire and what they had said in their later statements to the police and in their trial testimonies. The PCR court determined that counsel had elicited the discrepancy during Audrey's testimony and used it in his summation to support defendant's alibi. The court also found that counsel had "made the strategic decision that he did not need to challenge [Tara's] testimony because [her] inability to know the [defendant]'s whereabouts prevented her from testifying that [d]efendant had left during that critical time."

Cozze's investigation report states that he spoke to Tara on the day of the fire and she stated that "she came to work [at the Krauszer's Store] at 3:30 p.m." and "she remembers seeing [defendant] there [but] can't be sure what time [he] left," although Tara "thought the time might have been around 3:50[p.m.]." Cozze's report also states that he spoke with Audrey that day and she stated that she worked at the Krauszer Store until 3:30 p.m. and left the store at 3:40 p.m. Audrey stated that defendant was there but she did not know what time he left.

On February 10, 1999, three months after the fire at defendant's wife's residence, Audrey and Tara gave formal statements to the police. Audrey stated that she worked until 4:00 p.m. on the day of the fire and that Tara came in at 3:00 p.m. She stated that defendant was in the store several times that day, including once around 3 p.m. and once around 4 p.m. She recalled defendant being there for five or ten minutes when he came in around 3:00 p.m. Tara stated that she arrived at the store on the day of the fire at 3:15 p.m.; that defendant was in the store when she arrived; and she spoke with defendant before going into the back of the store to put inventory away. She told the police that defendant left to go to an appointment prior to her hearing fire sirens.

At trial, Audrey testified consistently with her February 10 formal statement. She testified that defendant was in the store around 3:00 p.m. and then again at 4:00 p.m. Defendant's trial counsel cross-examined her on the inconsistency between her initial statement to Cozze on November 11, 1998, and her later statements:

Q: Do you recall speaking to Detective Cozze by telephone the night of the fire?

A: Yes, [he] called my house.....

Q: Do you remember telling Detective Cozze that you left the store that day at 3:40 in the afternoon?

A: No, I would have left later.

Q: So, you don't recall telling him that?

A: Nope.

Q: Is that right?

A: I left later.....

Q: Do you recall telling him that? Whether it's accurate or not, do you recall telling him that?

A: No.

Q: If his... typed report says you told him that, that would be inaccurate?

A: I guess. I would have been at the store.

Q: Ms. Rausch, was your memory about the incidents of November eleventh fresher the evening of November eleventh or on February tenth, three months later?

A: Probably on the eleventh, but I work late on Wednesdays.

Q: On the eleventh, when you spoke to Detective Cozze on the phone that same evening, you believe your memory about the events that day would have been better in your mind--fresher in your mind that three months later?

A: Yes.

Tara testified that she arrived at work on November 11, 1998, at approximately 3:15 p.m. and saw defendant's car parked in the parking lot. When she entered the store, defendant was there with her mother. Tara testified that she went into the back of the store and put away inventory for thirty to forty-five minutes. When she returned to the front, defendant was in the store and remained there until leaving at 4 p.m. Defendant's counsel cross-examined Tara regarding the times she and defendant were in the store that day:

Q: Then you arrived at the store at what time on November eleventh?

A: Approximately 3:15.

Q: Who was in the store?

A: My mother, Audrey Rausch, [defendant] and other customers.....

Q: You acknowledge that he was there?

A: Yes.

Q: And then you did what you had to do--stocking shelves or whatever[?]

A: Yes.

Q:--did you see [defendant] leave?

A: Did I see him leave? No. I don't know if he did leave.

Q: You have no knowledge of whether he left or not?

A: While I was stocking the shelves, no.

Q: When you finished stocking shelves, where was he?

A: He was in the front of the store, I believe.

Q: Still in the store?

A: Yes.

Q: Was your mother still there?

A: Yes.....

Q: At the time you got done stocking shelves and your mother was still in the store, [defendant] was there?

A: Yes.

Q: He was there when you left the store proper and went to the back of the store shortly after 3:15?

A: Yes.

Q: You indicated that you had a conversation with [defendant] at that time?

A: After I finished, yes.

Q: After you finished stocking?

A: After, yes.....

Q: And when you got done, you say [defendant] was still in the store?

A: When I came out from the back, yes.....

Q: Did the police come and speak to you that afternoon or sometime after the fire?

A: Yes.....

Q: But your statement wasn't until February tenth, some several months later--couple of months?

A: Yes.

Defendant has failed to demonstrate how trial counsel's cross-examination of these witnesses was deficient. Counsel effectively cross-examined Audrey as to the discrepancies in her statements to the benefit of defendant's case. Counsel also effectively cross-examined Tara as to her and defendant's whereabouts during the crucial time frame. Counsel elicited from Tara that defendant was in the store when she got there around 3:15 p.m. and went to the back of the store and he was still there when she came to the front of the store, thirty to forty minutes later. The manner and the extent of counsel's cross-examination of the two witnesses can be deemed trial strategy and defendant has produced no evidence to overcome this presumption.

V.

In Point IB, defendant argues that trial counsel was ineffective because he failed to call Donald Powell, defense counsel's investigator, to testify that Tara Rausch had told him in April 1999 that on November 11, 1998, defendant was talking with her in the store from 3:15 p.m. to 4:00 p.m. Although the PCR court did not specifically address counsel's failure to call Powell as a witness, it found generally that counsel had made a strategic decision not to challenge Tara's testimony.

Powell had provided defense counsel with an investigation report dated April 1, 1999, which provided:

On April 5, 1999, I interviewed Tara Rausch at the Kraus[z]er's and left at 3 o'clock to pick up her son. She returned to the store at 3:15 and noticed that [defendant] was in the store drinking coffee. Tara indicated that she goes through this routine picking up her son at 3 o'clock and returning at 3:15 on a daily basis. To the best of her recollection, [defendant] was inside the store speaking with her from approximately 3:15 p.m. until close to 4:00 p.m. when he indicated that he had an appointment of some type and had to leave.

Trial counsel's decision not to call Powell can be deemed as trial strategy. Counsel effectively presented the inconsistent nature of Audrey Rausch's testimony regarding defendant's whereabouts, while effectively portraying Tara Rausch as a consistent witness who placed defendant in the store with her. Calling Powell, a defense investigator, to testify as to statements that might have impeached the credibility of Tara would have been counterproductive to an established trial strategy. Additionally, Powell's statement can be read as consistent with Tara's trial testimony. Powell's report states that she was talking to defendant from 3:15 p.m. until 4 p.m. This is consistent with Tara's testimony that she spoke with defendant when she came in at 3:15 p.m. and at approximately 4:00 p.m., when she came out of the back of the store, making Powell's testimony cumulative. Defendant has not shown how counsel's decision not to call Powell as a witness was anything other than trial strategy.

VI.

Defendant argues in Point IC that trial counsel's failure to retain an arson expert to rebut the State's arson expert was ineffective assistance. Defendant contends that had his counsel "simply retained an expert arson witness to investigate and testify on issues relating to the fire, [the State's "smoldering couch" theory] would have been debunked and the prosecutor's speculation regarding it would have been revealed as nonsense." The PCR court found that trial counsel had effectively cross-examined the State's arson expert and that defendant had presented "no information from which to conclude that such an arson expert would be able to knowledgably testify as to the behavior of the fire given the vast amount of variables that were discussed by [the State's expert,] Detective Sergeant McDonough."

McDonough testified at trial that the fire originated in the living room couch by open flame. He testified that he was not an expert in determining how long a couch would smolder before smoke alarms would go off. Accordingly, he further testified that he could not determine how long "it was from the placement of a heat source to that couch" until the smoke alarm went off. Nor could he state the exact time the fire was set, other than to determine that it had started shortly before 3:30 p.m. based on the fire having been reported at approximately 3:56 p.m., and smoke having first been detected by a neighbor at approximately 3:30 p.m. Lastly, McDonough testified that there were too many variables within a home that affect how quickly a fire starts; however, he could not eliminate a scenario where the fire smoldered for twenty minutes prior to a smoke alarm sounding.

Defendant has failed to show how trial counsel was deficient in not hiring an arson expert. The State's arson expert was unable to testify as to the exact time the fire started, and defendant has presented no evidence that an arson expert hired for his defense would have been able to testify to that effect. Under the second prong of the Strickland test, defendant is required to show that there would have been a different outcome had trial counsel hired an arson expert. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Defendant provided no such evidence.

VII.

Defendant asserts in Point ID that trial counsel's failure to obtain the videotape of his son Jer.D. confessing to starting the fire prior to trial was ineffective assistance of counsel. The trial court found that the State had elicited the son's "confession" on direct and defense counsel emphasized it during cross-examination.

Because the PCR court determined that the existence of the videotape had not become known to trial counsel until January 8, 2002, when the State admitted it had failed to disclose its existence, and because the tape had previously been destroyed by H.D., defendant's father, who had taped the "confession," the court determined that it was not ineffective assistance of counsel not to have secured and produced the videotape.

Defense investigators had conducted interviews of both H.D. and Jer.D. regarding the boy's admission to starting the fire. At no point in the interview did either of them state that Jer.D.'s admission had been videotaped by H.D. The existence of the tape was not known to trial counsel until January 8, 2002, at which point the tape no longer existed. Counsel attempted to obtain the tape from H.D., but was informed by him that it had been discarded. This can not be viewed as ineffective assistance under the Strickland standard. Trial counsel investigated the situation by interviewing both witnesses and upon learning of the videotape, attempted to obtain it.

VIII.

Defendant contends in Point IE that trial counsel failed to adequately prepare for the State's testimony by Michel Fontanez and failed to adequately cross-examine him. The PCR court found that counsel "not only cross-examined Fontanez regarding... discrepancies but also attacked his credibility in summation... and challenged Fontanez regarding his motive for coming forward."

Fontanez testified at trial that he and defendant were confined to the same part of the Hunterdon County Jail, and while there he contacted the prosecutor's office on January 20, 1999, to report information he had received from defendant. Fontanez testified that defendant admitted to him that he had slashed his wife's tires, gave heroin to his son in an attempt to frame his wife, and set the couch on fire at his wife's home.

We are satisfied that trial counsel effectively cross-examined Fontanez. Counsel questioned his motive in testifying, noting that Fontanez received the minimum sentence for his crime, even though he had four or five previous convictions at the time and was already serving a sentence in Pennsylvania. Counsel's questioning laid a foundation for the jury to consider whether Fontanez had received a favorable plea agreement in light of his criminal history as a motive for his testimony when determining Fontanez's credibility. In addition, counsel effectively pointed out on cross-examination that Fontanez had claimed defendant told him he started the fire at night, when in fact, the fire occurred during the day.

IX.

Defendant argues in Point IF that trial counsel failed to prepare for the impeachment of two State witnesses, Kristopher McKenney and Christopher Volekas, constituting ineffective assistance of counsel. As to McKenney, defendant claims that counsel "failed to discover that McKenney had actually been trying to recruit other inmates, including Daniel Magee and Greg Walter, in a scheme to testify falsely against defendant in exchange for reduced time." The PCR court found that "Daniel Magee had no such information to investigate and present when he was originally interviewed prior to trial by a defense investigator on January 14, 2002." Defendant did not provide a copy of the above-mentioned interview record to this court. However, in his 2006 statement to a defense investigator, Magee claimed that McKenney tried to recruit both him and Walter to say that defendant confessed to the house fire, so that McKenney would get a reduced sentence.

Defendant has failed to meet the burden of the Strickland test on this claim. He has provided no proof that counsel failed to investigate; in fact, defendant failed to provide this court with the interview record that the PCR court relied on in its finding. Nor has defendant provided any evidence that the outcome at trial would have been different even if this information had been discovered prior to trial.

McKenney testified on direct that defendant confessed to burning down his wife's home. However, McKenney was effectively cross-examined by counsel on his motive for testifying.

McKenney admitted that he initiated contact with the prosecutor's office and indicated that he would be willing to testify against defendant in exchange for help with his pending charges.

As to Volekas, defendant claims that counsel failed to "pursue impeachment material that would have undermined [his] credibility." Defendant claims that Volekas was the cousin of an individual who had been implicated in a drug investigation that defendant had cooperated with. Defendant, however, has provided no evidence that this allegation is true. While Volekas acknowledged in an interview that he was a cousin of the individual, he had no knowledge that defendant was involved with any investigation related to his concern.

X.

Defendant asserts in Point IG that trial counsel was ineffective because he failed to present the testimonies of Benjamin Caceras, H.D., Patricia LoRico, and Dr. David Polizzi. We disagree.

The PCR court found that the testimony of Dr. Polizzi would have been cumulative, in that he could only testify that defendant had an appointment with him at 2:30 p.m. on November 11, 1998, with the visit lasting approximately fifteen minutes; and defendant testified that he left his appointment at approximately 2:40 or 2:45 p.m. and arrived at Krauszer's at approximately 3:05 or 3:10 p.m. There was no dispute as to when he left the appointment or when he arrived at Krauszer's, so Dr. Polizzi's testimony would have had no effect on the outcome of the trial.

As to Caceras, the PCR court found that there was "no reason to believe that... Caceras, who lived at 21 Park Avenue and spoke of events occurring at 3:45 [p.m.], would have useful information for the defense or the State beyond what the police reported. [Trial counsel] made a strategic decision not to call Mr. Caseras as a witness, based on the police interview." In his 2006 statement to a defense investigator, Caseras indicated that on November 11, 1998, at some time before 3:30 p.m., he saw two or three of defendant's sons leave the house on their bikes. Defendant claims that because this testimony would have contradicted the boys' testimonies as to where they were and whether they rode bikes prior to the fire, it would have opened "up further possibilities for investigation and injecting reasonable doubt into the State's proof[s]." Defendant's argument lacks merit as he has provided no evidence that counsel's decision not to call Caseras was anything other than a strategic one, based on the lack of value of Caceras' knowledge of events.

As to LoRico, defendant asserts that her testimony would have contradicted the State's "smoldering fire" theory. The substance of LoRico's proposed testimony was only that one of defendant's sons had told her that the couch was on fire in several places. The PCR court found that this information "does not meet the Strickland test." Nothing in LoRico's proposed testimony would have contradicted the State's "smoldering fire theory" because the child did not discover the fire until after the fire alarm went off. Accordingly, her testimony would not have changed the outcome at trial.

Defendant also claims that trial counsel's failure to call H.D. to testify about Jer.D.'s "confession" was ineffective assistance of counsel. The PCR court found that counsel had made a "strategic decision not to call [H.D. because he] expressed concern that the confession of his grandson... to starting the fire may not be true." The evidence supports the court's conclusion. On March 16, 1999, a defense investigator interviewed H.D. H.D. stated that he was unsure if his grandson was telling the truth when he admitted to starting the fire. Counsel's decision not to call him can be viewed as nothing but strategic. The State elicited Jer.D.'s confession during his direct testimony and defense counsel cross-examined him on it. Calling defendant's own father to testify that he did not believe the confession would have undermined defendant's case.

XI.

Lastly, on the claims of ineffective assistance of counsel, defendant argues that based on the cumulative errors asserted above, he is entitled to a new trial. When the cumulative effect of errors renders a trial unfair, a defendant is entitled to a new trial. State v. Jenewicz, 193 N.J. 440, 473 (2008) (recognizing that although each error may not rise to reversible error, "when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal"). Here, as discussed supra, trial counsel was not ineffective in any of the points raised by defendant, and as such, there was no error, much less cumulative error. Accordingly, defendant is not entitled to a reversal of his convictions.

XII.

In Point VII, defendant challenges the imposition of consecutive sentences under the two indictments and argues that his sentences violated the principles of Blakely and Apprendi as found applicable to our sentencing code in State v. Natale, 184 N.J. 458 (2005). These arguments are without merit. Defendant's argument that the sentences imposed on the two indictments should not run consecutive to each other was raised on direct appeal and rejected. Accordingly, the argument is barred. R. 3:22-5.

As to defendant's argument that he was sentenced to extended terms in violation of Natale, we disagree. Although the trial court determined defendant eligible for extended term sentencing as a persistent offender, the trial court did not sentence defendant to any extended terms. However, the trial court did impose sentences on the second and third-degree crimes above the then-presumptive terms of seven and four years, respectively. Nevertheless, defendant is not entitled to any relief from the sentences imposed.

In Natale, the Court held "that a sentence above the then-presumptive statutory term based solely on a judicial finding of aggravated factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale, supra, 184 N.J. at 466. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive term based on the finding of aggravating factors, other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6a. Id. at 487. As a result of the "new rule of law," the Court limited the extent of its retroactive application. Id. at 493-94. The Court determined that pipeline retroactivity, that is, "applying our holding to defendants with cases on direct appeal as of the date of this decision [August 2, 2005] and to those defendants who raise Blakely claims at trial or on direct appeal," id. at 494, "best balances the principles of fairness and repose." Ibid.

The phrase "on direct appeal" means "in any case still on direct appeal at the time [the] new rule is set forth." State v. Cummings, 184 N.J. 84, 99 (2005). Pipeline retroactivity, contrary to full retroactivity, does "not apply to those defendants who had exhausted all avenues of direct relief at the time [the decision] was decided." State v. Knight, 145 N.J. 233, 258 (1996); see also State v. Yanovsky, 340 N.J. Super. 1, 11 (App. Div. 2001).

Here, defendant's judgments of conviction were entered on March 8, 2002. Defendant's direct appeal was decided on December 26, 2003, and his petition for certification was denied by the Court on March 16, 2004. Because defendant's direct appeal had been concluded prior to the Court's decision in Natale, this case does not fall within the ambit of pipeline retroactivity of the Natale decision.

Affirmed.


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