February 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ELLIOT RIVERA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 96-07-0861.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Lihotz and Messano.
Defendant Elliot Rivera appeals from a Law Division order denying his second motion for post-conviction relief (PCR). We affirm.
Following trial by jury, defendant was convicted of two counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); two counts of second degree sexual assault, N.J.S.A. 2C:14-2(b) and (c); and the third degree crimes of terroristic threats, N.J.S.A. 2C:12-3(b), and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). After merger, defendant was sentenced to an aggregate term of incarceration of twenty years with a ten-year period of parole ineligibility.
On direct appeal, this court affirmed defendant's convictions and sentence. State v. Rivera, No. A-4314-98 (App. Div. Nov. 9, 2000). The Supreme Court denied certification. State v. Rivera, 167 N.J. 632 (2001).
Defendant filed his first PCR petition raising sixteen issues. After an evidentiary hearing, the PCR judge denied defendant's petition. On appeal from that order this court affirmed the denial of relief based upon the issues addressed by the PCR judge, however, we remanded for further proceedings on an issue raised sua sponte.
Years after defendant's direct appeal, but while his appeal of the denial of his PCR petition was pending, the Supreme Court rendered its opinion in State v. P.H., 178 N.J. 378 (2004), holding "a child witness's belated disclosure of alleged sexual assault [is] one of the factors relevant to credibility." Id. at 390. During defendant's trial, the jury was instructed on delayed disclosures by a child victim. The jury instruction stated the jury "need not" consider the child's failure to complain as evidence weighing against the credibility of the alleged victim. This jury charge was not as egregious as the one examined in P.H., which implicated Confrontation Clause concerns, as it instructed the jury it could not consider such delayed disclosures as weighing on the child witness's credibility. Id. at 389-90.
We remanded this matter to the PCR court, instructing the PCR judge to analyze in the first instance the Court's retroactivity principles as they might apply to the failure to report the sexual abuse aspect of P.H. If the court determines that P.H. is retroactive, rendering the charge in this case erroneous, it will, as it did earlier, have to decide whether the charge might have affected the outcome of defendant's trial, given that the child's credibility was the key issue in the case. [State v. E.R., No. A-3701-03 (July 29, 2005) (slip. op. at 24).]
We also suggested if the PCR judge concluded P.H. was applicable and the erroneous charge likely affected the verdict, she could reconsider the issues raised in defendant's PCR petition.
Before the initial PCR judge's review, defendant filed a second PCR petition, presenting the issue we identified. The second PCR petition was reviewed by a different judge who concluded P.H. did not have complete retroactivity to encompass cases on collateral review where all avenues of direct appeal had been exhausted. Further, the jury charge used at trial allowed the jury to consider whether the delayed disclosure impacted the credibility of the child witness, essentially effectuating the mandate announced in P.H., supra, 178 N.J. at 391-92.
On appeal, defendant presents these arguments:
POINT I. COMPLETE RETROACTIVITY SHOULD BE IMPOSED WHERE THE PURPOSE OF THE NEW RULE SUBSTANTIALLY AFFECTS THE RELIABILITY OF THE TRUTH-FINDING FUNCTION.
POINT II. THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HIS FAILURE TO BE PREPARED TO CROSS-EXAMINE THE SANE AND DNA EXPERT WITNESSES RESULTED IN THE UNWARRANTED ENHANCEMENT OF [THE VICTIM'S] CREDIBILITY.
We have addressed the question of the scope of P.H.'s retroactive application in State v. J.A., 398 N.J. Super. 511, 514-15 (App. Div.), certif. denied, 196 N.J. 462 (2008).*fn1 In J.A., after a thorough analysis of federal and state law, we limited application of the rule announced in P.H. to those matters then pending on direct appeal. Ibid. "[S]imply because a trial court's jury instruction may be considered reversible error under present law does not automatically require the new rule be applied retroactively to cases already adjudicated on appeal well before the new rule was announced, and now on collateral review[.]" Id. at 528.
We reject defendant's suggestion this matter was in the pipeline and warrants a new trial. Pipeline retroactivity applies the new rule of law not only to new cases, but also to "any case still on direct appeal at the time this new rule is set forth." State v. Cummings, 184 N.J. 84, 99 (2005); State v. Burstein, 85 N.J. 394, 403 (1981). Defendant's direct appeals were concluded in 2001 prior to the change required by P.H. Defendant's collateral appeals are not equivalent to a direct appeal. "[W]hen a criminal defendant has had a full trial and one round of appeals in which the State faithfully applied the Constitution as we understood it at the time, he may nevertheless continue to litigate his claims indefinitely in hopes that we will one day have a change of heart." Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 2526, 159 L.Ed. 2d 442, 452-53 (2004).
Defendant's remaining argument, asserting ineffective assistance of trial counsel, was rejected in our prior opinion that affirmed the denial of his first PCR petition.