State of New Jersey v. B.C.S.

• Court: New Jersey Superior Court Appellate Division
• Decided: May 1, 2025
• Docket: A-2813-23
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2813-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

B.C.S.,

Defendant-Appellant.

Argued March 25, 2025 – Decided May 1, 2025

Before Judges Sumners and Bergman.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-10- 1403.

Kayla Rowe, Designated Counsel, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Steven M. Gilson, on the brief).

Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (LaChia L. Bradshaw, Burlington County Prosecutor, attorney; Alexis R. Agre, of counsel and on the brief).

PER CURIAM Defendant B.C.S.1 appeals from an order denying his petition for post-

conviction relief (PCR). Based on our review of the record and applicable legal

principles, we affirm.

I.

On June 7, 2013, the Division of Child Protection and Permanency

(DCPP) investigated the home of B.H. and J.H. in Brown Mills. B.H. was the

mother and J.H. was the father of three children. DCPP informed B.H. and J.H.

that it was investigating allegations of sexual abuse of all of their children by

defendant. The three children subject to the investigation were Z.H., a nine-

year-old boy, A.H., a seven-year-old girl, and E.H., a six-year-old girl.

Defendant was the foster brother of J.H. and had been entrusted to care for the

children on multiple occasions, including overnight care.

On June 11, 2013, Detective Hageman of the Pemberton Township Police

Department contacted B.H. who agreed to bring the children to the police station

to be interviewed. Detective Hageman interviewed A.H.,2 while another

detective in the department, Detective Hann interviewed Z.H. and E.H. During

1 We use initials to protect the identity of the minor victims and to preserve the confidentiality of these proceedings. R. 1:38-3(d)(10). 2 A.H.'s out-of-court statement was excluded from trial because it was deemed too unreliable. A-2813-23 2 the interviews, all three children described incidents of being sexually assaulted

by defendant. After completing the interviews with the children, B.H. agreed to

call defendant in order for the detectives to record the phone conversation

between them. During the phone call, defendant initially denied that there was

any sexual contact between him and the children. B.H. told defendant she must

inform her husband, J.H., about the interactions and she promised to keep the

information between the two of them if defendant were to tell the truth. B.H.

also informed defendant that she had already contacted the police, but falsely

stated his roommate had implicated him, and physical evidence existed

corroborating the children's allegations.

Thereafter, defendant alternated between admitting and denying the

allegations of sexual contact with the children. He eventually admitted to

touching Z.H.'s genitals and engaging in anal penetration on one occasion; he

admitted to touching A.H.'s clitoris while she was asleep; and admitted to

touching E.H.'s vagina while she was bathing.

The next day, Detectives Hageman and Hann met defendant at his home

in Browns Mills. Defendant agreed to go to the police station to be interviewed.

The detectives provided defendant his Miranda3 rights which he acknowledged

3 Miranda v. Arizona, 384 U.S. 436 (1966). A-2813-23 3 by signing and dating a "Miranda card." During the videotaped interview,

defendant admitted to sexually assaulting all three children. Defendant admitted

that he inserted his penis into Z.H.'s buttocks and stopped when Z.H. asked him.

Defendant also stated he manually masturbated Z.H. Defendant admitted to

"playing" with A.H.'s vagina and clitoris while she slept. Defendant denied any

involvement with E.H. initially, but upon further questioning admitted his finger

"slipped" and touched her vagina when bathing her.

When defendant requested an opportunity to speak with an attorney, the

detectives terminated the interview, left the room but continued to record the

interview room. While alone in the interview room, defendant could be heard

talking to himself, stating, "I just need some counseling. I need some kind of

help, and I need to start today. That's what I need to do. . . . I'm only saying

these things because, yea, [B.H.] told me to." Defendant then asked the

detectives to come back into the room, and after being re-advised of his Miranda

rights, stated that he only confessed because B.H. offered him $5,000 to say that

he assaulted the children.

In October 2013, defendant was indicted on five counts of first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), two counts of second-degree

A-2813-23 4 sexual assault, N.J.S.A. 2C:14-2(b), and six counts of second-degree

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

Following the indictment, defendant filed multiple pretrial motions,

including moving to exclude the victims' testimony and statements as unreliable.

The court granted one of the motions but denied the remainder. Prior to trial,

the State voluntarily dismissed one count of sexual assault and one count of

endangering the welfare of a child. In June 2015, a jury found defendant guilty

on three counts of first-degree aggravated sexual assault, two counts of the

lesser-included offense of second-degree sexual assault and three counts of

second-degree endangering the welfare of a child.

The court sentenced defendant to consecutive sixteen-year prison terms

on two of the first-degree aggravated sexual assault counts, subject to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court sentenced defendant

to a concurrent sixteen-year prison term on the third first-degree aggravated

sexual assault count subject to NERA. The court imposed concurrent prison

terms on the remaining counts: seven years subject to NERA on each of the

second-degree sexual assault convictions and seven years on each of the three

endangering the welfare of a child convictions. The court ordered defendant to

comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-2,

A-2813-23 5 imposed parole supervision for life, N.J.S.A. 2C:43-6.4, and imposed fines,

penalties and assessments.

Defendant appealed the convictions, and we affirmed. State v. B.C.S.,

No. A-3043-15 (App. Div. July 3, 2019) (slip op. at 3). The Supreme Court

initially granted certification, but later dismissed it as improvidently granted.

State v. B.C.S., 240 N.J. 258 (2019). Thereafter, defendant filed his first petition

for PCR on January 31, 2021. The petition was denied by the trial court. By

letter of February 10, 2021 the court found that a PCR petition "may not be filed

5 years after rendition of the judgment or sentence sought to be attacked. Your

judgment was rendered October 9, 2015, and your motion was filed on

December 24, 2020."

Defendant's counsel subsequently filed a motion to reinstate the petition

on May 19, 2021, which was granted on June 2, 2021. On February 8, 2022, the

petition was dismissed for lack of prosecution. On May 21, 2023, counsel

refiled the petition without first filing a motion to reinstate.

On October 16, 2023, the court heard argument regarding, (1) whether the

petition was properly before the court, as no motion to reinstate the petition had

been filed and, (2) whether the PCR petition was timely filed and, if so, whether

defendant showed a prima facie case of ineffective assistance of counsel

A-2813-23 6 requiring a hearing. On February 15, 2024, the court issued an opinion and order

denying the petition without an evidentiary hearing on both procedural and

substantive grounds, finding defendant's petition was time-barred and his claims

of ineffective assistance of counsel had no merit.

Defendant appealed raising the following points:

POINT I

DEFENDANT'S PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.

POINT II

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO CONDUCT AN ADEQUATE PRETRIAL INVESTIGATION BY HAVING DEFENDANT EVALUATED BY AN EXPERT TO DETERMINE IF HE WAS MENTALLY COMPETENT OR SUFFERED FROM A DIMINISHED CAPACITY.

II.

Where, as here, the PCR court has not conducted an evidentiary hearing,

we review its legal and factual determinations de novo. State v. Aburoumi, 464

N.J. Super. 326, 338 (App. Div. 2020). A defendant is not automatically entitled

to an evidentiary hearing. State v. Porter, 216 N.J. 343, 355 (2013). Rule 3:22-

A-2813-23 7 10(b) provides that a defendant is entitled to an evidentiary hearing on a PCR

petition only if they establish a prima facie case in support of PCR, material

issues of disputed fact cannot be resolved by reference to the existing record,

and an evidentiary hearing is necessary to resolve the claims for relief. Id. at

354 (quoting R. 3:22-10(b)). The PCR court should grant an evidentiary hearing

"if a defendant has presented a prima facie claim in support of [PCR]." State v.

Preciose, 129 N.J. 451, 462 (1992).

To establish a prima facie claim of ineffective assistance of counsel, a

defendant is obligated to show (1) that counsel's performance was deficient, and

(2) the deficiency prejudiced his right to a fair trial. Strickland v. Washington,

466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 48-50 (1987). Under the

first prong, defendants must demonstrate "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed by the Sixth

Amendment." Strickland, 466 U.S. at 687. Defendants can establish deficient

performance of counsel by showing "counsel's acts or omissions fell outside the

wide range of professionally competent assistance considered in light of all the

circumstances of the case." State v. Gaitan, 209 N.J. 339, 350 (2012) (quoting

State v. Castagna, 187 N.J. 293, 314 (2006)) (internal quotations and citation

omitted). "Mere dissatisfaction with a 'counsel's exercise of judgment' is

A-2813-23 8 insufficient to warrant overturning a conviction." State v. Nash, 212 N.J. 518,

542 (2013) (quoting State v. Echols, 199 N.J. 344, 358 (2009)). The "petitioner

must do more than make bald assertions," but instead "allege facts sufficient to

demonstrate counsel's alleged substandard performance." State v. Cummings,

321 N.J. Super. 154, 170 (App. Div. 1999). Under the second prong, defendant

must show "counsel's errors were so serious as to deprive [] defendant of a fair

trial, a trial whose result is reliable." Strickland, 466 U.S. at 687.

A.

We begin with the PCR court's determination that defendant's petition was

filed untimely. Defendant was sentenced on October 9, 2015, and his first PCR

petition was filed on January 31, 2021. The petition was initially dismissed as

time-barred but was later reinstated. However, on February 8, 2022, the petition

was dismissed again without prejudice for lack of prosecution. Although

defendant filed another PCR petition and the court scheduled oral argument and

set a briefing schedule, it ultimately determined defendant failed to file a motion

to reinstate and denied the petition finding it was not filed timely.

Pursuant to Rule 3:22-12:

[N]o petition shall be filed more than [five] years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless:

A-2813-23 9 (A) it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.

[R. 3:22-12(a)(1)(A) (emphasis added).]

The five-year time bar on initial petitions may be relaxed only under the

specified circumstances set forth in Rule 3:22-12(a)(1)(A). In assessing whether

excusable neglect justifies relaxation of the time bar, we "consider the extent

and cause of the delay, the prejudice to the State, and the importance of the

petitioner's claim in determining whether there has been an 'injustice' sufficient

to relax the time limits." State v. Norman, 405 N.J. Super. 149, 159 (App. Div.

2009) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). More than "a

plausible explanation for [defendant's] failure to file a timely PCR petition" is

required. Ibid. Our Supreme Court has described the required showing as one

of "compelling, extenuating circumstances," State v. Milne, 178 N.J. 486, 492

(2004) (quoting Afanador, 151 N.J. at 52), or alternatively, "exceptional

circumstances . . . ." State v. Murray, 162 N.J. 240, 246 (2000) (citing State v.

Mitchell, 126 N.J. 565, 580 (1992)).

A-2813-23 10 "A fundamental injustice occurs 'when the judicial system has denied a

defendant with fair proceedings leading to a just outcome or when inadvertent

errors mistakenly impacted a determination of guilt or otherwise wrought a

miscarriage of justice.'" State v. Hannah, 248 N.J. 148, 179 (2021) (internal

quotation marks omitted) (quoting Nash, 212 N.J. at 546). "To demonstrate a

fundamental injustice, a defendant must show 'that an error or violation played

a role in the determination of guilt.'" Ibid. (internal quotation marks omitted)

(quoting Nash, 212 N.J. at 547).

We agree with the PCR court's determination that defendant failed to show

through competent evidence that the delay was due to excusable neglect.

Further, we are satisfied that enforcement of the time bar will not result in a

fundamental injustice.

Defendant contends he showed excusable neglect because he was not

made aware of his PCR rights. We conclude this argument lacks merit because,

as the PCR court pointed out, defendant was made aware of his PCR rights

during his sentencing on October 9, 2015. Further, we are unpersuaded by

defendant's argument that because the direct appeal was pending before us it

delayed his ability to file for PCR. It has long been established that "there is no

provision for tolling in R[ule] 3:22-12 by reason of a direct appeal from the

A-2813-23 11 conviction being available or actually having been filed." State v. Dillard, 208

N.J. Super. 722, 727 (App. Div. 1986). Accordingly, we find no reason to

disagree with the PCR court's determination that defendant failed to show

excusable neglect, and, therefore, the PCR court correctly found his petition was

filed untimely.

In addition, when considering the PCR petition on the merits, we concur

with the PCR court that defendant failed to demonstrate ineffective assistance

of counsel. Defendant asserts counsel was ineffective by not conducting a

pretrial investigation to determine whether he was mentally competent or

suffered from a diminished capacity. Defendant argues the failure to have him

evaluated stripped him of having a "complete defense."

We conclude, as the PCR court did, that defendant failed to show any

credible evidence, besides his own statements, that he was suffering from a

diminished capacity or mental defects to support an evaluation. Defendant's

bald assertions that he had diminished capacity are insufficient. Defendant

provided no medical documentation, expert opinion, certification or any credible

evidence establishing he suffered from any mental disease or defect that could

negate the requisite mental state for the offenses charged. See Cummings, 321

N.J. Super. at 170 (explaining that facts supporting a PCR petition must be

A-2813-23 12 "supported by affidavits or certifications based upon the personal knowledge of

the affiant or the person making the certification").

Moreover, defendant's trial strategy focused on contesting the factual

basis of the charges, rather than asserting he lacked the mental capacity to form

the requisite criminal intent. We conclude a diminished capacity defense is

fundamentally inconsistent with that position. Here, defendant fails to explain

his counsel's deficiency in pursuing one defense over another. We conclude

there is no merit to this argument because it is well settled that "purely

speculative deficiencies in representation are insufficient to justify reversal."

Fritz, 105 N.J. at 64; see also State v. Arthur, 184 N.J. 307, 327-28 (2005).

We further conclude because defendant failed to establish a prima facie

case of ineffective assistance of counsel, the PCR court exercised its discretion

in denying an evidentiary hearing. See R. 3:22-10(b) (stating a defendant is only

entitled to an evidentiary hearing "upon the establishment of a prima facie case

in support of [PCR], a determination by the court that there are material issues

of disputed fact . . . , and a determination that an evidentiary hearing is necessary

to resolve the claims for relief"). We conclude the PCR court did not abuse its

discretion under these circumstances.

A-2813-23 13 To the extent we have not specifically addressed any of defendant's

remaining legal arguments we conclude they are of insufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

A-2813-23 14