May 24, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-10-1105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2010
Before Judges Messano and LeWinn
Defendant appeals from the November 29, 2007 order of the trial court denying his petition for post-conviction relief (PCR). We reverse and remand for an evidentiary hearing.
Tried to a jury in 2003, defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4; and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). He was sentenced to an aggregate term of fifteen years imprisonment.
The victim of these charges was defendant's biological daughter, L.N., who was fifteen years old at the time. L.N. testified that defendant engaged in sexual activity with her on three occasions, in November and December 2000 and February 2001. The November offense allegedly took place in the residence defendant shares with his wife, who is not L.N.'s biological mother.
Defendant appealed his convictions and sentence, and we affirmed. State v. L.A., No. A-5071-03 (App. Div. March 17, 2006). Among the issues raised in that appeal was defendant's claim that the trial judge erred in refusing to permit defendant's wife to testify in rebuttal to the testimony of L.N.'s mother that the child's behavior changed in April 2001, and when she confronted L.N. about this change in behavior, the child told her mother about defendant's sexual assaults. Id. at 4-6.
Defendant proffered that his wife would testify that "based upon the behavior she had observed, L.N.'s conduct had not drastically changed after the dates the alleged sexual assaults began." Id. at 4. Because counsel had "brought this witness to the court's attention after the jury had been selected and sworn[,]" ibid., however, we found no abuse of discretion in the judge's exclusion of her testimony. Id. at 5.
Defendant filed his PCR petition on August 22, 2006. Counsel was assigned and filed an amended petition with supporting certifications on March 16, 2007.
Plaintiff certified that his wife was at home in November 2000, when L.N. claimed that he sexually assaulted her at the residence. Defendant asserted that his wife "could have corroborated [his] description of the house as very small, so it would have been impossible for [him] to have sex with [L.N.]... without anyone noticing."
Defendant also submitted a certification from his wife, stating that she recalled "that day in November, 2000 because... [defendant] had picked up [L.N.] and taken her shopping for a coat." Defendant's wife was home when he and L.N. returned from shopping, and she certified that L.N. never went into her son's bedroom, which is where the child had asserted the sexual assault took place on that occasion. In fact, defendant's wife stated, her son was in his bedroom at the time and he "did not really like to have [L.N.] go into his bedroom" and had told L.N. "not to go into his bedroom or sit on his bed."
Defendant's wife further certified that when she spoke to defendant's trial attorney, she told him this information, but that counsel never told the court "the most important reason for [her] being a witness," namely that she was home on that day in November 2000 when L.N. claimed defendant sexually assaulted her in their son's bedroom.
Defendant claimed ineffective assistance of trial counsel for failing to take appropriate steps to list his wife as a trial witness and to present this pertinent testimony. He also claimed ineffective assistance in counsel's failure to investigate and prepare for trial, and because of counsel's "erratic behavior."
On August 17, 2007, the PCR judge heard oral argument and thereafter rendered a decision from the bench on November 29, 2007. The judge found that if defendant's wife had "testified at his trial[,] it would have been helpful to put the victim's credibility in issue that maybe it didn't happen, so why would it happen if there is this lady... in the house." The judge, however, concluded: "Sure, it might have been error not to call [defendant's wife] but that is just one of three incidents... that the defendant allegedly was involved with the victim and that would have been enough to convict him also."
In considering whether there was "a reasonable probability that but for that unprofessional error the result of the proceedings would have been different[,]" the judge focused not on counsel's failure to call defendant's wife as a witness, but on defendant's other two allegations of ineffective assistance of counsel. The judge concluded that defendant had received "reasonable professional assistance" and denied the petition.
On appeal, defendant raises the following contention for our consideration:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WAS ESTABLISHED AS TO TRIAL COUNSEL'S NOT INVESTIGATING AND/OR PRODUCING AN EXCULPATORY WITNESS WHO ALSO WOULD DIMINISH THE ALLEGED VICTIM'S CREDIBILITY.
We concur that a remand is necessary to afford defendant the opportunity for an evidentiary hearing at which his wife will be able to testify, and the PCR judge will be able to assess her credibility, in order to make an informed decision as to whether trial counsel's failure to prepare and call her as a witness did in fact constitute ineffective assistance of counsel.
A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.
Trial courts "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." State v. Preciose, 129 N.J. 451, 462 (1992). Courts "should view the facts in the light most favorable to a defendant...." Id. at 462-63. See also R. 3:22-10(a).
We have recognized that, "in order to establish a prima facie claim, [a defendant] must do more than make bald assertions that he was denied the ineffective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 157 (App. Div.), certif. denied, 162 N.J. 199 (1999). However, "[o]nce a defendant has established a prima facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different....'" State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007).
Here, the PCR judge found that defendant had satisfied the first prong of the Strickland test, namely that counsel was "deficient" in failing to call defendant's wife as a witness because her testimony "would have been helpful to put the victim's credibility in issue...." Notwithstanding this finding, the judge concluded that counsel's deficient performance did not prejudice defendant. However, as noted, in addressing this second prong, the PCR judge focused on allegations other than counsel's failure to call defendant's wife as a witness.
Defendant contends that the "omission of [his wife's] prospective testimony clearly satisfied" the second prong of the Strickland test, in that his wife was "prepared to exculpate defendant as to the alleged sexual assault in their [residence] and, concomitantly, diminish, if not extinguish, L.N.'s credibility regarding all three incidents."
We are satisfied that the PCR judge erred in failing to find that defendant had satisfied the second prong of the test for establishing a prima facie claim of ineffective assistance of counsel. This error, in turn, led to the improper denial of an evidentiary hearing. Therefore, "we remand to the trial court for an evidentiary hearing and a determination of the merits of defendant's claim." Preciose, supra, 129 N.J. at 464.
Reversed and remanded. We do not retain jurisdiction.
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