On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-11-1268-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2009
Before Judges Stern and Waugh.
Defendant Ralph Rasler appeals from the denial of his petition for post-conviction relief (PCR). We affirm. In January 2003, Rasler was found guilty on five counts of a twelve-count indictment arising out of the kidnapping and sexual assault of a nine-year-old boy. He was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree sexual assault, N.J.S.A. 2C:14-2(b); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He was acquitted on counts related to aggravated sexual assault, terroristic threats, and weapons possession. One count involving possession of a weapon was dismissed at the end of the State's case.
In May 2003, Rasler was sentenced to forty years in state prison with a twenty-five year parole ineligibility term on the kidnapping charge, a concurrent term of seven years with a three-and-one-half-year parole ineligibility term on the sexual assault charge, and a concurrent four-year term on the criminal restraint charge.*fn1 We affirmed his conviction on direct appeal.
State v. Rasler, No. A-6124-02 (App. Div. Sept. 7, 2005). We declined to consider his allegations of ineffective assistance of counsel at that time, observing that the issue is best addressed on PCR. The Supreme Court denied certification. State v. Rasler, 185 N.J. 392 (2005).
Rasler filed a PCR petition pro se, and was subsequently assigned counsel. Judge James F. Mulvihill heard argument on the petition on December 15, 2006, at which time he gave an oral decision with respect to some of Rasler's contentions. Having determined that testimony from Rasler's trial counsel on the issue of his pretrial consultations with Rasler was necessary for a complete disposition of the petition, Judge Mulvihill held a hearing for that purpose on February 8, 2007. After hearing trial counsel's testimony, Judge Mulvihill gave an oral opinion denying the petition and entered an appropriate order on the same date. This appeal followed. Rasler raises the following issues on this appeal:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE TIME BAR OF RULE 3:22-4
CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO APPELLANT'S CASE.
C. DEFENDANT IS ENTITLED TO POST
CONVICTION RELIEF AS HIS TRIAL ATTORNEY FAILED TO ADEQUATELY INVESTIGATE HIS MATTER.
D. DEFENDANT IS ENTITLED TO POST CONVICTION RELIEF AS HIS TRIAL ATTORNEY FAILED TO ADEQUATELY CONSULT WITH HIM REGARDING HIS MATTER
Rasler argues that Judge Mulvihill should have held a full evidentiary hearing with respect to his allegations of ineffective assistance of counsel, relying on State v. Preciose, 129 N.J. 451, 462 (1992) ("Thus, trial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of- counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief.").
Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient; and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In State v. Johnson, 365 N.J. Super. 27, 34 (2003), certif. denied, 179 N.J. 372 (2004), we noted that "[i]t is virtually axiomatic that in order for defendant to obtain relief ...