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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3509-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
R.P.D.,
Defendant-Appellant. ____________________________
Submitted October 28, 2019 – Decided January 15, 2020
Before Judges Sabatino and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-04-0832.
Joseph E. Krakora, Public Defender, attorney for appellant (Janet Anne Allegro, Designated Counsel, on the briefs).
Mark Musella, Bergen County Prosecutor, attorney for respondent (Ian C. Kennedy, Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM Defendant R.P.D.1 appeals from a Law Division order denying his petition
for post-conviction relief (PCR) without an evidentiary hearing. Before us, he
presents the following arguments:
POINT I THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE LEGAL REPRESENTATION AT THE TRIAL LEVEL SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADDRESS THE TRIAL COURT'S USE OF THE INAPPROPRIATE LEGAL STANDARD REGARDING DEFENDANT'S REQUEST TO PROCEED PRO SE.
A. Ineffective Assistance of Trial Counsel Regarding Defendant's Request to Proceed Pro Se.
B. Ineffective Assistance of Appellate Counsel Regarding Defendant's Request to Proceed Pro Se. (Not Raised Below)
POINT II THE PCR RECORD ESTABLISHED DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF PCR COUNSEL.
1 We use initials to protect the identity of the victim. A-3509-17T1 2 POINT III DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE COUNSEL FAILED TO EVEN ATTEMPT TO CONDUCT AN INVESTIGATION AND INTERVIEW OF POTENTIAL WITNESSES AND, THEREFORE, THE PCR COURT ERRED IN FINDING COUNSEL'S DETERMINATION THAT AN INVESTAGTION WOULD BE FRUITLESS WAS REASONABLE.
POINT IV TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO CSAAS TESTIMONY AND TO OBTAIN AN EXPERT TO COUNTER THE TESTIMONY, WHICH WAS PARTICULARLY REQUIRED IN LIGHT OF THE RECENTLY DECIDED CASE, STATE V. J.L.G., 234 N.J. 265 (2018).
In his pro se supplemental brief, defendant argues:
POINT 1 DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO SELF- REPRESENTATION. THE COURT FAILED TO APPLY THE APPROPRIATE LEGAL STANDARD FOR SELF-REPRESENTATION AND ERRED BY NOT ORDERING A NEW TRIAL.
POINT 2 TRIAL ATTORNEY WAS INEFFECTIVE FOR NOT REQUESTING A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE WHICH DIRECTLY EFFECTS RELIABILITY OF THE STATE'S PRIMARY WITNESS'
A-3509-17T1 3 TESTIMONY REQUIRING A N.J.R.E. 104 HEARING TO ASCERTAIN IF THE NEWLY DISCOVERED EVIDENCE IS A RESULT OF BRADY2 VIOLATION.
POINT 3 BASED ON RECENT COURT DECISIONS AND EXPERT TESTIMONY DETERMINED TO BE INADMISSABLED. THE DEFENDANT IS ENTITLED TO BENEFIT FROM FULL RETROACTIVITY OF THE NEW LAW BASED ON THE CIRCUMSTANCES AND THE FACTS OF THE CASE.
Having reviewed the record considering the applicable legal standards, we
reverse and remand for retrial.
I
The procedural history and trial evidence are detailed in our unpublished
decision affirming defendant's conviction and sentence on direct appeal, State
v. R.D., No. A-5735-11 (App. Div. Sept. 20, 2013).3 A brief summary of the
relevant facts and proceedings will suffice here.
Defendant was charged with six counts of second-degree sexual assaults
upon his daughter while she was under the age of thirteen, N.J.S.A. 2C:14-2(b);
2 Brady v. Maryland, 373 U.S. 83 (1963). 3 Defendant's direct appeal did not include his middle initial. A-3509-17T1 4 three counts of second-degree engaging in sexual conduct that would harm,
impair, or debauch the morals of his daughter while under a legal duty to care
for her, N.J.S.A. 2C:24-4(a); two counts of first-degree aggravated sexual
assault of his daughter while she was under the age of thirteen, N.J.S.A. 2C:14 -
2(a)(1); one count of third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and
one count of third-degree attempt to cause or recklessly cause significant bodily
injury to his daughter, N.J.S.A. 2C:12-1(b)(7).
The State's proofs at the February 2012 bench trial essentially showed that
defendant repeatedly sexually assaulted his daughter beginning when she was
four years old until she reached the age of ten. The State primarily relied upon
the testimony of the then fifteen-year-old daughter, who provided a detailed
narrative account of the abuse inflicted upon her by her father. The State also
presented testimony from the Bergen County Prosecutor Office's investigating
detective concerning videotaped interviews of the daughter when she was
thirteen years old about the sexual abuse. The detective also testified about her
interview of defendant's younger daughter, who denied abuse. Also testifying
for the State was its expert, a psychologist who explained the theory of Child
Sexual Abuse Accommodation Syndrome (CSAAS) regarding "a child's often
counter-intuitive reactions to sexual abuse." State v. W. B., 205 N.J. 588, 611
A-3509-17T1 5 (2011) (citing State v. J.Q., 130 N.J. 554, 579 (1993)). Defendant elected not to
testify and did not call any witnesses on his own behalf.
In an extensive oral opinion, the trial judge found defendant guilty of all
charges. The judge largely credited the daughter's testimony and indicated there
was "no doubt in [his] mind" that accusations of sexual abuse by defendant were
truthful. The judge only briefly alluded to the expert's CSAAS testimony and
merely noted, in a conclusory fashion, he had taken it into consideration. On
July 3, 2012, the judge sentenced defendant to a seventy-year aggregate prison
term, subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.
On direct appeal, we upheld defendant's conviction but, with the State's
consent, remanded for resentencing. Defendant was subsequently resentenced
on May 29, 2014, to an aggregate sixty-two-year prison term subject to NERA.
He appealed his new sentence, which was affirmed by an Excessive Sentence on
Appeal panel of this court on March 10, 2015.
Defendant thereafter filed a timely PCR petition, contending trial counsel
was ineffective for: (1) failing to conduct an adequate investigation and call any
witnesses on his behalf; (2) failing to request a pretrial taint hearing under State
v. Michaels, 136 N.J. 299, 320 (1994), to determine if his daughter's allegations
were tainted by improper investigation techniques; (3) failing to consult with an
A-3509-17T1 6 expert to refute the State's expert; and (4) failing to file motions requested by
defendant. Defendant also contended his constitutional right to represent
himself was improperly denied by the motion judge.
The PCR judge denied defendant's claims without an evidentiary
hearing. In his written decision, the judge explained trial counsel represented
to the trial judge that a CSAAS expert was unnecessary given the State's decision
to present one, to which the trial judge agreed. The judge also explained how
counsel represented to a different judge at a pretrial conference that after
meeting with defendant, an investigator would not be "fruitful or useful" to
conduct any additional investigation to identify potential witnesses to refute
abuse allegations. The PCR judge also determined defendant was properly
denied the right to proceed pro se because he was unable to answer the first three
questions posed by the motion judge in assessing his competence to represent
himself, and "was unable to prove that his relinquishment of his right [to
counsel] was knowing and intelligent." This appeal ensued.
II
To establish a prima facie claim of ineffective assistance of counsel, the
defendant must show that: (1) counsel's performance was deficient; and (2) the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
A-3509-17T1 7 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). A court reviewing a PCR petition
based on claims of ineffective assistance has the discretion to grant an
evidentiary hearing only if a defendant establishes a prima facie showing in
support of the requested relief. State v. Preciose, 129 N.J. 451, 462-63 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). When determining whether to grant an evidentiary hearing, the PCR
court must consider the facts in the light most favorable to the defendant to
determine if a defendant has established a prima facie claim. Preciose, 129 N.J.
at 462-63. A hearing should be conducted only if there are disputed issues as to
material facts regarding entitlement to PCR that cannot be resolved based on the
existing record. State v. Porter, 216 N.J. 343, 354 (2013).
The main thrust of defendant's appeal is that the PCR judge failed to
recognize the motion court did not apply the proper legal standard set forth in
State v. Reddish, 181 N.J. 553, 592-95 (2004), to determine whether he would
be allowed to exercise his constitutional right to represent himself. Defendant
maintains the motion court did not engage in the required colloquy to determine
whether he was knowingly and voluntarily waiving his right to counsel, and that
this error requires a new trial. He asserts trial counsel was ineffective because
A-3509-17T1 8 he failed to argue the proper standard to be applied by the motion court in
deciding his request to represent himself, and that appellate counsel failed to
contend the motion court applied the incorrect standard. In addition, defendant
claims PCR counsel was ineffective because he erred in arguing that defendant
rescinded his request to represent himself, which in turn supported the State's
position.
A defendant's right to self-representation is well settled. "[A] defendant
has a constitutionally protected right to represent himself in a criminal trial."
Faretta v. California, 422 U.S. 806, 816 (1975); see State v. DuBois, 189 N.J.
454, 465 (2007). However, because a waiver of the right to counsel constitutes
a relinquishment of "many of the traditional benefits associated with" that right,
it must be made "knowingly and intelligently." Faretta, 422 U.S. at 835. When
a criminal defendant requests self-representation, the judge must "engage in a
searching inquiry" with him to determine whether the defendant understands the
implications of the waiver. State v. Crisafi, 128 N.J. 499, 510 (1992).
In Crisafi, the Court held that a trial judge must inform the defendants of
"the nature of the charges against them, the statutory defenses to those charges,
and the possible range of punishment." Id. at 511. The judge should also tell the
defendants of "the technical problems they may encounter in acting as their own
A-3509-17T1 9 counsel and of the risks they take if their defense is unsuccessful." Id. at 511-
12. The defendants should be cautioned that they must conduct their defense in
accordance with the relevant rules of procedure and evidence, that "a lack of
knowledge of law may impair their ability to defend themselves," and that in
general it may be unwise not to accept counsel's assistance. Id. at 512.
Over two decades later in Reddish, 181 N.J. at 594, the Court expanded
the Crisafi inquiry.
[T]he Crisafi/Reddish inquiry now requires the trial court to inform a defendant asserting a right to self- representation of (1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (5) the impact that the dual role of counsel and defendant may have; (6) the reality that it would be unwise not to accept the assistance of counsel; (7) the need for an open-ended discussion so that the defendant may express an understanding in his or her own words; (8) the fact that, if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim; and (9) the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination.
[DuBois, 189 N.J. at 468-69.]
A-3509-17T1 10 In ascertaining whether a defendant's "knowingness" is "real or feigned," a trial
court should ask "appropriate open-ended questions that will require [the]
defendant to describe in his own words his understanding of the challenges that
he will face. . . ." Reddish, 181 N.J. at 595.
Ultimately, the focus "must be on the defendant's actual understanding of
the waiver of counsel." Crisafi, 128 N.J. at 512. All reasonable presumptions
against waiver should be indulged. State v. Gallagher, 274 N.J. Super. 285, 295
(App. Div. 1994). However, a defendant should not be deprived of the right of
self-representation based solely on "the complexity of the proceedings or the
magnitude of the consequences" he faces. State v. Russo, 243 N.J. Super. 383,
401 (App. Div. 1990). Additionally, the goal of the court's colloquy with a
defendant is not to explore whether he possesses any particular "technical legal
knowledge," State v. King, 210 N.J. 2, 19 (2012), and a defendant need not
demonstrate "the skill and experience of a lawyer" before a knowing and
voluntary waiver is found. Reddish, 181 N.J. at 595. Finally, if the appropriate
colloquy is conducted and it is determined that the defendant's waiver of counsel
is knowing and voluntary, that choice "must be honored" even if the court feels
it is a "poor" or "unwise" one. Gallagher, 274 N.J. Super. at 296; State v.
Thomas, 362 N.J. Super. 229, 242-43 (App. Div. 2003).
A-3509-17T1 11 Applying these principles, we are constrained to conclude the PCR court
erred in finding the motion court applied the proper legal standard when denying
defendant's right to represent himself and that there was no ineffectiveness of
trial and appellate counsel.
After previously voicing complaints about his assigned trial counsel, the
motion court heard defendant's application to represent himself about a month
before the scheduled trial date. The court began with its advice to defendant
that his counsel was a very experienced defense attorney and among the best in
the vicinage, and that he could not pick the assigned counsel that he wanted.
With counsel at his side, defendant argued that he desired to represent himself
because counsel failed "to collect one piece of evidence, interview one witness,
file one motion, . . . on [his]behalf[,]" which constituted "ineffective assistance
of counsel."
Shortly thereafter, the following colloquy occurred:
THE DEFENDANT: Then I'm prepared to go pro se and I would appreciate it if the Court would allow me to - -
THE COURT: All right. Then let's go through the - -
THE DEFENDANT: Let's.
THE COURT: - - factors. Let's see if you're - - what are the different parts of a trial? How it begin and how does it end. What are the various portions of a trial.
A-3509-17T1 12 THE DEFENDANT: Well, I - - I'm not prepared to answer your questions. If you'd like to give me some time, I'll study up and I'll come back and we'll talk about this again another day.
THE COURT: Do you have any idea what the rules of court are when it comes to conducting a trial?
THE DEFENDANT: As far as specifically what?
THE COURT: Do you know that there are court rules to be followed?
THE DEFENDANT: Sure. There's probably ways to present yourself to the judge, to the witnesses, and - -
THE COURT: What does a prosecutor do versus a defense? What kind of examinations do they do?
THE DEFENDANT: Is this to embarrass me, your Honor?
THE COURT: No. I'm trying to figure out what your knowledge is. And so far you have absolutely no knowledge of what it is to conduct a full blown trial.
THE DEFENDANT: I do not have the - -
THE COURT: Hence, why you have an attorney. So just from the three - - I'm not even done with the list yet.
THE DEFENDANT: I'm sure you're not.
THE COURT: I'm only up to the third question, and it's not meant to embarrass you, it's meant to show you that you are not competent to be your own attorney.
A-3509-17T1 13 THE DEFENDANT: I agree.
THE COURT: That it is, as they say, if you're willing to be an attorney for yourself, then you'll be a fool - -
THE DEFENDANT: I will not go to trial with Mr. Meehan. I can assure you that.
THE COURT: Well, you're going to have to contact Mr. Acevedo [of the Public Defender's Office] because [he] is the only one that has the power to change who your public defender will be. But I can tell you this, that you will not be pro se. I find that you are not competent. There's 20 questions here. You couldn't even answer the first three.
THE DEFENDANT: I can give you the answers (indiscernible)
THE COURT: So I do not find that you're competent. Your case will proceed on February 6th with Mr. Meehan. And unless Mr. Acevedo decides to change your public defender, which I can tell you he won't.
At no point did the motion court engage in the full, searching colloquy
described in Faretta, Crisafi, and Reddish to determine whether defendant's
waiver of counsel would be knowing and voluntary. The court did not caution
defendant about the sentence he faced at trial and ask whether he understood the
charges. The judge's mere statement that defendant was not competent to
represent himself because he could not answer three of the first twenty
questions, was not the proper standard. We take no issue with the court's belief
A-3509-17T1 14 that proceeding without counsel was not the best choice for defendant. That
said, the court was erroneous to base its decision on that view, particularly where
the record suggests defendant is literate, willing to research the legal process
that faced him upon self-representation, and to take responsibility for his
decision to proceed pro se. Faretta, 422 U.S. at 835. There is no indication
defendant lacked the competency to waive his right to counsel. Nor is there any
indication that defendant's request to represent himself was not exercised in a
timely, clear and unequivocal fashion. See State v. Harris, 384 N.J. Super. 29,
57-58 (App. Div. 2006).
As our Supreme Court recognized, "[t]he right [of self-representation] is
either respected or denied; its deprivation cannot be harmless." King, 210 N.J.
at 22 (alteration in original) (quoting McKaskle v. Wiggins, 465 U.S. 168, 177
n.8, (1984)). Hence, although a defendant "may have been represented by a
skilled attorney, the evidence against him may have been substantial, and the
verdict may find strong support in the record; that matters not." Ibid. A
defendant has the constitutional right to represent himself without demonstrating
he can do so like a skilled lawyer as long he exercises his right knowingly and
voluntary. Reddish, 181 N.J. at 595.
A-3509-17T1 15 We find no merit to the State's opposition to this appeal. The State does
not specifically address the legal standard the motion court should have applied
in deciding defendant's request to represent himself. Instead, the State argues
"defendant never unequivocally requested he wanted to represent himself." The
record does not support this argument. Not only was defendant adamant during
the motion hearing that he wanted to represent himself, five days after his
request was denied, defendant wrote a letter to the court reiterating his concerns
about trial counsel and stating he wanted to represent himself.4 We further find
unpersuasive the State's reliance on the trial judge's comment at sentencing that
trial counsel performed "extremely well," in response to defendant's assertion
counsel was ineffective. Counsel's performance is irrelevant to whether
defendant's right to represent himself was improperly denied by the motion
court.
Significantly, when the court heard defendant's request to represent
himself trial counsel remained silent. Counsel had a responsibility to point out
to the court that it should apply the principles articulated in the above noted case
4 The letter is unsigned and was attached to his pro se PCR brief, which was submitted before he was assigned PCR counsel. There is no indication in the record that the letter was not received by the court. A-3509-17T1 16 law in considering defendant's request. Appellate counsel had the same
obligation in pursuing defendant's direct appeal.
In addition, we reject the State's contention that defendant's claim is
procedurally barred under Rule 3:22-4(a) because he should have contended on
direct appeal that the motion court erred in denying him the right to represent
himself. Defendant asserts trial counsel was ineffective for failing to advise the
motion court of the proper legal standard to apply in deciding his motion to
proceed pro se. However, under Rule 3:22-4(a)(2) no procedural bar applies
where the "enforcement of the bar to preclude claims, including one for
ineffective assistance of counsel, would result in fundamental injustice." We
recently held there is was no procedural bar to a PCR claim where the trial court
denied a defendant the right of self-representation because it "would result in a
fundamental injustice." State v. Rose, 458 N.J. Super. 610, 625 (App. Div.
2019).
Moreover, there can be no procedural bar to claims against appellate
counsel and PCR counsel. The bar does not apply where defendant asserts that
appellate counsel and PCR counsel were ineffective for failing to argue his
motion to represent himself was improperly denied because the claims against
them did not become ripe until after the direct appeal and the PCR claim were
A-3509-17T1 17 rejected. See Preciose, 129 N.J. at 460; State v. Webster, 187 N. J. 254, 257
(2006) (ruling that under Rule 3:22-6(d), PCR counsel must advance defendant's
legitimate arguments supported by the record).
We have pondered whether a remand would be appropriate but have
concluded it would serve no useful purpose. It is simply impossible to
reconstruct the situation that existed at the time the motion court queried
defendant about his desire to represent himself. Consequently, we reverse the
denial of PCR relief because the motion court erred in denying defendant his
constitutional right to represent himself.
III
Given our ruling that defendant should be retried and allowed to represent
himself, we need not address defendant's remaining contentions. However, for
the sake of completeness, we do so and conclude they have no merit.
Defendant argues trial counsel was ineffective for not conducting an
adequate investigation by interviewing family members and a Division of Youth
and Family Services 5 caseworker regarding his daughter's failure to show any
signs of being sexually assaulted, or not investigating her mental health
5 The agency is now known as the New Jersey Division of Child Protection and Permanency. A-3509-17T1 18 condition. In order to establish that a counsel's inadequate investigation
constitutes ineffective assistance, a defendant must assert facts through
affidavits or certifications based upon personal knowledge, what the
investigation would have revealed and that the inadequacy prejudiced his
defense. R. 1:6-6; see State v. Porter, 216 N.J. 343, 352 (2013). Because
defendant's contentions are unsupported by such affidavits or certifications, his
claim of ineffective assistance is nothing more than "bald assertions" and so fail.
Cummings, 321 N.J. Super. at 170.
Last, defendant contends trial counsel was ineffective for neither
objecting to the testimony of the State's expert witness nor presenting an expert
to refute the State's expert given our Supreme Court's recent ruling in J.L.G.,
234 N.J. at 272, that CSAAS evidence, except as to delayed disclosure, is not
sufficiently reliable to be admissible. As noted above, the trial judge gave little
value to the CSAAS testimony in finding defendant was guilty of all the charges
We begin with the understanding that our review of alleged trial court
errors "is not limitless" and is "bounded by the proofs and objections critically
explored on the record before the trial court by the parties themselves." State v.
Robinson, 200 N.J. 1, 19 (2009). Where, as here, the "issue never was raised
before the [PCR] court, . . . and . . . its legal propriety never was ruled on by the
A-3509-17T1 19 . . . court, the issue was not properly preserved for appellate review." Id. at 18-
19. Defendant's contention does not "go to the jurisdiction of the trial court or
concern matters of great public interest," warranting an exception to the general
prohibition against deciding an issue on appeal that was "not properly presented
to the trial court." Id. at 20 (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973)). Accordingly, we should not address the merits of defendant's
claim that his trial counsel was ineffective by failing to object to the CSAAS
testimony presented by the State's expert.
Nonetheless, there is no merit to defendant's claim under Strickland's
second prong that he was prejudiced by counsel's failure to challenge the
CSAAS testimony. We also agree with the State that counsel cannot be
ineffective for not objecting to the CSAAS testimony or presenting contrarian
expert testimony considering the admissibility of the testimony was supported
by almost two decades of decisional case law.6 See Strickland, 466 U.S. at 690
6 We noted as such in our unpublished decision affirming defendant's conviction wherein we rejected the argument that the CSAAS testimony by the State's expert should not have been admitted. R.D., slip op. at 11. We felt "bound to follow the precedence of the United States Supreme Court and the Supreme Court of New Jersey, regardless of whether those precedents are unwise or outmoded, that the testimony was admissible." Ibid. Also, defense counsel did not object at trial to the testimony and the record before us was insufficient to address the testimony's validity. Id. at 12. A-3509-17T1 20 (finding "the reasonableness of counsel's challenged conduct" is judged "on the
facts of the particular case, viewed as of the time of counsel's conduct"); see
also State v. Allegro, 193 N.J. 352, 366 (2008) ("In gauging whether a valid
claim of ineffective assistance of counsel has been presented, 'the court must
judge the reasonableness of counsel's challenged conduct on the facts of the
particular case, viewed as of the time of counsel's conduct.'" (quoting State v.
Castagna, 187 N.J. 293, 314 (2006))).
Moreover, in J.L.G., the Court announced a new rule of law that has
pipeline retroactive application. State v. G.E.P., 458 N.J. Super. 436, 444-48
(2019); see also State v. Burstein, 85 N.J. 394, 402-03 (1981) (explaining a
court's options in determining the effect of an announcement of a new rule of
law). The new rule of law therefore is inapplicable to defendant's case because
he exhausted the direct appeals of his conviction in 2014,7 four years prior to
the Court's decision in J.L.G. See G.E.P., 458 N.J. Super. at 444-48. Defendant
cannot obtain relief from his conviction through a PCR petition where the new
rule of law upon which he relies is not retroactive to his conviction. See State
v. Cupe, 289 N.J. Super. 1, 11 (App. Div. 1996) (explaining that "a case decided
after a defendant's conviction and sentence has become final may not provide
7 As mentioned above, defendant was resentenced on May 2, 2014. A-3509-17T1 21 the basis for [PCR] if it announces a new rule of law" unless it is determined the
new rule of law applies retroactively to the defendant's conviction and sentence).
Any arguments asserted by defendant that we have not addressed are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Reversed and remanded for retrial.
A-3509-17T1 22