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State v. Kelley

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 23, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN KELLEY, JR., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-05-0863.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 31, 2009

Before Judges Skillman and Graves.

Defendant John Kelley appeals from an order dated August 4, 2006, denying his petition for post-conviction relief (PCR). We affirm.

In a five-count indictment, defendant John Kelley was charged with a series of sexual assaults upon a minor. The victim of the assaults was the ten-year-old son of the boyfriend of defendant's sister. Following a jury trial, defendant was conviction of first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, in violation of N.J.S.A. 2C:14-2(b); third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a); third-degree criminal restraint, in violation of N.J.S.A. 2C:13-2(a); and third-degree terroristic threats, in violation of N.J.S.A. 2C:12-3(a). At sentencing on October 19, 2001, the court imposed a twenty-year term of imprisonment, with ten years of parole ineligibility, for aggravated sexual assault; and concurrent five-year terms, with two-and-one-half- year periods of parole ineligibility, for endangering the welfare of a child, criminal restraint, and terroristic threats.

The court merged defendant's conviction for sexual assault into his conviction for aggravated sexual assault. All mandatory fines, penalties, and Megan's Law restrictions were imposed as well.

In an unpublished opinion, we affirmed defendant's convictions and his sentence but remanded for entry of a corrected judgment because defendant's endangering conviction merged into his conviction for aggravated sexual assault. See State v. Still, 257 N.J. Super. 255, 259 (App. Div. 1992). On defendant's direct appeal, we summarized the testimonial evidence as follows:

The alleged victim testified at trial that he was approximately ten years old when defendant began forcing sex acts on him and that those acts continued for over a year. He stated that defendant had anal intercourse with him and performed fellatio. Additionally, the victim indicated that during the first of these assaults, defendant threatened to kill him if he told anyone.

Defendant took the stand in his own defense and denied that he had engaged in any sexual misconduct with the alleged victim. He also testified that he had no idea why the alleged victim would fabricate such false accusations.

[State v. Kelley, No. A-2132-01T4 (App. Div. January 6, 2003), certif. denied, 176 N.J. 428 (2003).]

Defendant's PCR petition was filed on July 20, 2004. In a brief in support of his petition, defendant claimed he was prejudiced by the ineffective assistance of counsel at both the trial and appellate levels. Following oral argument on August 4, 2006, Judge Cleary, who also presided over defendant's trial, denied defendant's petition.

On appeal, defendant presents the following arguments:

POINT ONE

THE COURT ABUSED ITS DISCRETION AND COMMITTED ERROR IN FAILING TO GRANT AN EVIDENTIARY HEARING TO DEFENDANT TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

POINT TWO

THE COURT ABUSED ITS DISCRETION AND COMMITTED ERROR IN FINDING THAT THE DEFENDANT'S CLAIMS WERE PROCEDURALLY BARRED PURSUANT TO R. 3:22-4.

We are satisfied from our review of the record that these arguments do not warrant extended discussion in a written opinion. R. 2:11-3(e)(2). With respect to defendant's second point, we agree that defendant's ineffective assistance of counsel claims are not procedurally barred by Rule 3:22-4. See State v. McQuaid, 147 N.J. 464, 484 (1997) (noting that ineffective assistance claims "often fall within Rule 3:22-4(c), because those claims are grounded in the Sixth Amendment of the United States Constitution and the New Jersey Constitution").

Nonetheless, Judge Cleary addressed the merits of defendant's petition, and she correctly concluded that no hearing was necessary because defendant failed to establish a prima facie claim of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 463-64 (1992). Accordingly, we affirm the order denying defendant's PCR petition substantially for the reasons stated by Judge Cleary in her oral decision on August 4, 2006.

Affirmed.

20090423

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