STATE OF NEW JERSEY VS. L.J.A. (09-05-0986, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

S
                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2506-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

L.J.A.,

     Defendant-Appellant.
______________________

                   Submitted February 8, 2021 – Decided March 17, 2021

                   Before Judges Messano and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 09-05-0986.

                   L.J.A., appellant pro se.

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Stephanie Davis Elson, Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant L.J.A. appeals from the denial of his second petition for post-

conviction relief (PCR) without an evidentiary hearing. For the reasons that

follow, we affirm.

                                       I.

      Defendant was indicted for sexually abusing his daughter, who was seven

years old when she reported the abuse.            The facts underlying defendant's

convictions are described in our prior opinion. See State v. L.J.A. (L.J.A. I),

No. A-0493-11 (App. Div. Dec. 27, 2013) (slip op. at 3-10). Defendant was

convicted by a jury of first-degree aggravated sexual assault, N.J.S.A. 2C:14-

2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two);

and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)

(count three). He was sentenced to an aggregate, extended term of fifty years in

prison to be served in its entirety.

Id. at 24.

      We affirmed defendant's conviction and sentence in his direct appeal.

Id.

at 31.

The Supreme Court reversed the sentence and remanded that issue. State

v. L.J.A., 

220 N.J. 565

(2015). We vacated the sentence on count one and

remanded the case to the Law Division for resentencing. State v. L.J.A. (L.J.A.

II), No. A-0493-11 (App. Div. Mar. 31, 2015) (slip op. at 5-6). Defendant was

resentenced to an aggregate, extended term of fifty years in prison subject to an


                                                                            A-2506-19
                                            2
eighty-five percent period of parole ineligibility. N.J.S.A. 2C:43-7.2. Nicole's

Law1 was applied. We affirmed the sentence through our excessive sentence

oral argument (ESOA) panel, Rule 2:9-11, but remanded to correct the judgment

of conviction to reflect proper jail and service credits, and to adjust the penalties.

State v. L.J.A. (L.J.A. III), No. A-4598-14 (App. Div. Order Oct. 28, 2015). The

judgment of conviction was amended in November 2015 to include these

changes.

       Defendant filed his first PCR petition in August 2015 and supplemented

it in June 2016. Defendant's first PCR petition was denied on October 19, 2016.

Defendant appealed this denial.

       In his first PCR appeal, defendant alleged ineffective assistance of his trial

counsel on numerous grounds. Among them, defendant alleged that his trial

counsel should have better cross-examined the State's expert on Child Sex Abuse

Accommodation Syndrome (CSAAS).

       We affirmed the first PCR petition denial in a per curiam opinion

"substantially for the reasons expressed" by the first PCR court. State v. L.J.A.

(L.J.A. IV), No. A-1864-16 (App. Div. April 16, 2018) (slip op. at 5). We

concluded defendant's arguments about the ineffectiveness of his trial counsel


1
    N.J.S.A. 2C:14-12.
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                                          3
were "unsupported and [did] not require a hearing."

Id. at 5.

Defendant's

petition for certification from L.J.A. IV was denied. State v. L.J.A., 

235 N.J.

450

(2018).

       Defendant filed a pro se second PCR petition on January 26, 2018, while

the appeal of the first PCR denial was pending with us. He argued his confession

to the police should have been suppressed because he told them he wanted to

speak with his fiancée. He claimed his appellate and first PCR counsel should

have raised an issue about the prosecutor's alleged inflammatory and prejudicial

remarks in the closing at the trial. Defendant claimed the cumulative effect of

all the errors denied him a fair trial.

       Defendant filed an addendum to his second PCR petition on May 6, 2019,

which was after the first PCR appeal was decided and the Supreme Court had

denied certification. In this addendum, defendant argued that CSAAS testimony

is no longer admissible based on the Supreme Court's decision in State v. J.L.G.,

234 N.J. 265

(2018). 2 He claimed the first PCR court erred by determining the

J.L.G. decision had pipeline retroactivity. Defendant argued his trial attorney

should have called an expert witness to testify that his aunt was leading his

daughter to say that there had been vaginal penetration. He asserted he was


2
    J.L.G. was decided on July 31, 2018.
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                                           4
badgered in his police interview until he "broke" and then confessed. Defendant

argued the testimony at trial about CSAAS was "unlawful" and prejudicial. He

claimed his trial attorney never investigated that defendant was under the

influence of drugs.

      Defendant's second PCR petition was denied on November 26, 2019,

without an evidentiary hearing. The PCR court found defendant could have

raised in his first PCR that he alleged his confession was coerced or that his trial

counsel needed to call another witness. The PCR court found a similar argument

about the prosecutor's closing was raised in his first PCR appeal.

      The second PCR court found that "[CSAAS] evidence was properly before

the trial court at the time of [defendant's] trial, as the issues with this type of

testimony were not elaborated on by the Supreme Court until its decision in

[J.L.G.], which was decided after [defendant's] first [p]etition for PCR was

denied." The court found trial counsel could not be faulted for not challenging

this evidence at a time before its validity was questioned. The second PCR court

noted that J.L.G. had pipeline retroactivity based on our decision in State v.

G.E.P., 

458 N.J. Super. 436

(App. Div. 2019). This meant J.L.G. only applied

to cases on direct review. The second PCR court found defendant's direct review




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of his convictions and sentencing ended on March 31, 2015, which was three

years before J.L.G. was decided.

      Defendant appealed the denial of his second PCR petition. On appeal,

defendant raises this issue for our consideration:

            DEFENDANT IS ENTITLED TO RETROACTIVE
            APPLICATION OF STATE V. J.L.G., 

234 N.J. 265

            (2018); CONSEQUENTLY, THE TRIAL COURT
            ERRED IN FAILING TO APPLY J.L.G. TO
            DEFENDANT'S SITUATION, NECESSITATING
            THE REVERSAL OF DEFENDANT'S UNLAWFUL
            CONVICTIONS.

                                        II.

      Under Rule 3:22-4, a defendant is barred from raising any issue in a

second PCR petition that could have been raised on direct appeal or in the first

PCR petition unless one of three exceptions apply. The petition must "allege[ ]

on its face" one of the three criteria: (1) the petition "relies on a new rule of

constitutional law . . . that was unavailable during the pendency of any prior

proceedings[,]" (2) "the factual predicate for the relief sought could not have

been discovered earlier through the exercise of reasonable diligence," or (3) the

"petition alleges a prima facie case of ineffective assistance of counsel" of prior

PCR counsel. R. 3:22-4(b)(2)(A)-(C).




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      Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any

ground for relief is conclusive whether made in the proceedings resulting in the

conviction or in any post-conviction proceeding . . . or in any appeal taken from

such proceedings." A PCR petition is not "an opportunity to relitigate a claim

already decided on the merits." State v. McQuaid, 

147 N.J. 464

, 483 (1997)

(citation omitted).

      Defendant's appellate brief raised only one issue — the request for

retroactive application of J.L.G. The other issues in defendant's second PCR

petition were not addressed in his merits brief. Because of this, we treat those

issues as abandoned. See Drinker Biddle v. N.J. Dep't of Law & Pub. Safety,

Div. of Law, 

421 N.J. Super. 489

, 496 n.5 (App. Div. 2011) (noting claims not

addressed in merits brief are deemed abandoned); see also Pressler & Verniero,

Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020).

      We find without merit defendant's argument that J.L.G. should apply

retroactively to his case. "In State v. J.L.G., [the Supreme Court] rejected the

use of CSAAS evidence — with the exception of certain testimony concerning

delayed disclosure — as lacking 'a sufficiently reliable basis in science to be the

subject of expert testimony.'" State v. G.E.P., 

243 N.J. 362

, 369 (2020) (quoting

J.L.G., 234 N.J. at 272

). "Plainly, in J.L.G., [the Supreme Court] announced a


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new rule — 'expert testimony about CSAAS in general, and its component

behaviors other than delayed disclosure, may no longer be admitted at criminal

trials.'"

Id. at 385

(quoting 

J.L.G., 234 N.J. at 272

). Recently, the Supreme

Court ruled that J.L.G. has pipeline retroactivity.

Id. at 370, 386.

This means

the rule applies to a case that is in the direct appeal process, or pipeline, when

the rule becomes effective.

Ibid.

Defendant’s direct appeal

was completed at the earliest on March 2015

when we affirmed his conviction or the latest on October 28, 2015 when the

ESOA panel affirmed his sentence. This was nearly three years before J.L.G.

was decided. Therefore, the second PCR court was correct in holding that J.L.G.

did not provide a basis for relief in defendant's case. Given the timing of these

cases, neither his trial nor appellate counsel were ineffective by not raising the

issue. His first PCR counsel did raise an issue about the CSAAS expert, but we

affirmed the denial of his first PCR petition.

      Defendant argues that a different rule should apply because this is a PCR

petition, and that J.L.G. should have full retroactivity. There is nothing in the

G.E.P. opinion that supports this interpretation.       More importantly, this

interpretation would undercut the Court's pipeline retroactivity rule by giving




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retroactive application to PCR petitions, but not to direct appeals. We find no

merit in this argument.

      We are satisfied from our review of the record that defendant failed to

make a prima facie showing of ineffectiveness of counsel. Accordingly, the

second PCR court correctly concluded that an evidentiary hearing was not

warranted. See State v. Preciose, 

129 N.J. 452

, 462-63 (1992).

      Affirmed.




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