On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-06-1746.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010
Before Judges Reisner and Alvarez.
Defendant Michael Colbert appeals the August 29, 2008, denial of his petition for post-conviction relief (PCR) without an evidentiary hearing.
Tried by a jury, defendant was convicted of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b). He was sentenced on March 27, 2003, to concurrent nine-year terms of imprisonment subject to a five-year period of mandatory parole ineligibility as he had a prior sexual assault conviction. See N.J.S.A. 2C:14-6. His conviction was affirmed in an unpublished opinion. State v. Colbert, No. A-5638-02 (App. Div. Dec. 21, 2004). Defendant's petition for certification was granted on July 7, 2005, and the Supreme Court remanded the matter for our consideration in light of State v. W.A., 184 N.J. 45 (2005). State v. Colbert, 185 N.J. 27 (2005). In a second unpublished opinion, we reversed. State v. Colbert, No. A-5638-02 (App. Div. Dec. 22, 2005). The Supreme Court in turn reversed and reinstated defendant's conviction and sentence, determining that State v. W.A. was prospective only and that therefore defendant's jury selection process satisfied constitutional requirements. State v. Colbert, 190 N.J. 14, 22-24 (2007).
Defendant next filed a pro se petition for PCR. Counsel was assigned, and filed a brief on defendant's behalf. The PCR judge issued a twenty-seven-page opinion denying the petition and the request for evidentiary hearing after oral argument, finding that defendant had not established the requisite prima facie case.
To briefly reiterate the facts developed at trial, defendant was convicted based on incidents occurring in December 1997, March 1998, and April 1998. In each instance, defendant rubbed the breast of the then ten-year-old daughter of a woman he was dating. The child testified that after each occasion defendant went into the bathroom, returning after some minutes. The child did not report these events until 2000.
On this appeal, defendant raises the following issues:
POINT I - THE ORDER DENYING
POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE COURT MISAPPLIED R. 3:22-4 AND R. 3:22-5 IN FINDING THAT THE DEFENDANT'S ARGUMENTS CONCERNING TRIAL COUNSEL'S FAILURE TO EXERCISE PEREMPTORY CHALLENGES, AND TRIAL COUNSEL'S FAILURE TO RECORD HIS PRETRIAL INTERVIEW WITH MS. [H.] AND M.H. TO SUPPORT A THIRD-PARTY GUILT ARGUMENT, WERE PROCEDURALLY BARRED
DENYING POST CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING ON INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL'S FAILURE TO EXERCISE PEREMPTORY CHALLENGES TO EXCUSE JURORS, AND TRIAL COUNSEL'S FAILURE TO RECORD HIS PRETRIAL INTERVIEW WITH MS. [H.] AND M.H. TO SUPPORT A THIRD-PARTY GUILT ARGUMENT, WAS PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE ...