STATE OF NEW JERSEY VS. SHANE SIMPSON (10-12-2352, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )


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  •                              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    NOT FOR PUBLICATION WITHOUT THE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-3635-15T3
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    SHANE SIMPSON,
    Defendant-Appellant.
    ___________________________________
    Submitted November 29, 2017 – Decided July 26, 2018
    Before Judges Fuentes and Koblitz.
    On appeal from Superior Court of New Jersey,
    Law Division, Monmouth County, Indictment No.
    10-12-2352.
    Joseph E. Krakora, Public Defender, attorney
    for appellant (Monique D. Moyse, Designated
    Counsel, on the brief).
    Christopher J. Gramiccioni, Monmouth County
    Prosecutor, attorney for respondent (Lisa
    Sarnoff Gochman, of counsel and on the brief).
    PER CURIAM
    On December 1, 2010, a Monmouth County Grand Jury returned
    an indictment against defendant Shane Simpson charging him with
    first degree aggravated sexual assault of a seven-year-old child,
    identified as C.U., that occurred on April 6, 2010, N.J.S.A. 2C:14-
    2(a)(1); three counts of second degree sexual assault of C.U. that
    occurred on April 6, April 13, and April 20, 2010, N.J.S.A. 2C:14-
    2(b); first degree1 endangering the welfare of a child, C.U., by
    causing her to engage in child pornography while in defendant's
    care,   N.J.S.A.      2C:24-4(b)(3);     second    degree      endangering        the
    welfare of a child, C.U., by engaging in sexual contact with the
    child in a manner that would debauch her morals while having
    assumed responsibility for her care, N.J.S.A. 2C:24-4(a); fourth
    degree endangering the welfare of a child, C.U., by possessing
    child pornography, N.J.S.A. 2C:24-4(b)(5)(b); and fourth degree
    failing to register as a convicted sex offender on April 6, 2010,
    N.J.S.A. 2C:7-2(a).2
    The    record    shows   defendant       engaged    in        extensive     and
    ultimately    unsuccessful     motion       practice   that    included:     (1)    a
    motion to sever certain counts in the indictment; (2) a motion to
    suppress the admission of self-incriminating statements defendant
    had   made   during    a   custodial    interrogation;        (3)    a   motion    to
    determine defendant's competency to stand trial and assist in his
    1
    The State amended this charge to a second degree offense before
    the start of trial.
    2
    Defendant was convicted under previous versions of N.J.S.A.
    2C:24-4(a), N.J.S.A. 2C:24-4(b)(3), and N.J.S.A. 2C:24-4(b)(5)(b).
    2                                   A-3635-15T3
    own defense; (4) a motion to admit evidence allegedly showing that
    C.U.   was    sexually   abused   when       she   was   three   years   old;   (5)
    defendant's pro se motion to compel the Public Defender's Office
    to   remove    the   Assistant    Deputy      Public     Defender   assigned     to
    represent him in this case and assign a different attorney;3 and
    (6) a motion to recuse the judge from presiding over the trial.
    Defendant was tried before a jury between March 21, 2012 and April
    5, 2012.      The jury found defendant guilty on all counts in the
    indictment.
    On September 24, 2012, the court sentenced defendant to an
    aggregate term of thirty-four years, with a period of parole
    ineligibility of twenty-eight years, ten months, and twenty-eight
    days, as required by the No Early Release Act (NERA), N.J.S.A.
    2C:43-7.2,4 to be served at the Adult Diagnostic and Treatment
    3
    Defendant's pro se motion to remove the attorney assigned by
    the Public Defender's Office to represent him came before the
    trial court on February 24, 2012. The judge provided defendant
    the opportunity to be heard before denying the motion. Defendant
    did not raise this issue on direct appeal.
    4
    Only certain offenses are subject to NERA. Here, the crime of
    first degree aggravated sexual assault requires the court to impose
    an eighty-five percent period of parole ineligibility and five
    years of parole supervision. Second degree sexual assault requires
    the same eighty-five percent period of parole ineligibility, with
    a three-year period of parole supervision. See N.J.S.A. 2C:43-
    7.2.
    3                                A-3635-15T3
    Center (ADTC). See N.J.S.A. 2C:47-3(f). Defendant is also subject
    to the registration requirements of Megan's Law, N.J.S.A. 2C:7-2.
    We affirmed defendant's conviction on direct appeal in an
    unpublished opinion, State v. Shane Simpson, No. A-1697-12 (App.
    Div. May 12, 2014) (slip op. at 21). We also affirmed the sentence
    imposed by the trial court, with one exception.      We sua sponte
    remanded the matter for the court to resentence defendant on the
    conviction for endangering the welfare of a child under N.J.S.A.
    2C:24-4(b)(3) because "the State amended [this charge] to a second-
    degree crime prior to the start of trial."   Id. at 20-21.
    On June 18, 2014, the trial court resentenced defendant on
    this charge to a term of eight years, with four years of parole
    ineligibility, to be served concurrently to the sentence imposed
    for first degree aggravated sexual assault.     On June 10, 2014,
    defendant filed a pro se post-conviction relief (PCR) petition
    alleging, without factual elaboration or citation to relevant
    legal authority, the following five grounds for relief: (1) court
    error; (2) ineffective assistance of counsel; (3) prosecutorial
    misconduct; (4) malicious prosecution; and (5) any other points
    assigned counsel deems relevant.
    The court assigned counsel to assist defendant in prosecuting
    his PCR petition.   According to appellate counsel, PCR counsel
    filed "supporting briefs" before the PCR court and defendant filed
    4                            A-3635-15T3
    a pro se motion seeking the revocation of fines.   The matter came
    for oral argument before the PCR court on January 29, 2016.
    Although the "briefs" referred to by appellate counsel are not
    included in the record before us, the PCR judge acknowledged
    receipt of "petitioner's brief in support, which was filed on
    April 29th, 2015; [and] petitioner's supplemental brief, which was
    filed on August 14th, 2015 . . . ."   After hearing the arguments
    of counsel, the PCR judge reserved decision.
    In an order dated February 25, 2016 supported by a memorandum
    of opinion, the PCR judge denied defendant's petition.     The judge
    found that the five claims or bases for PCR defendant listed in
    his petition were procedurally barred under Rule 3:22-4, which
    states:
    Any ground for relief not raised in the
    proceedings resulting in the conviction, or
    in a post-conviction proceeding brought and
    decided prior to the adoption of this rule,
    or in any appeal taken in any such proceedings
    is barred from assertion in a proceeding under
    this rule unless the court on motion or at the
    hearing finds:
    (1) that the ground for relief not previously
    asserted could not reasonably have been raised
    in any prior proceeding; or
    (2) that enforcement of the bar to preclude
    claims,   including   one for   ineffective
    assistance of counsel, would result in
    fundamental injustice; or
    5                            A-3635-15T3
    (3) that denial of relief would be contrary
    to a new rule of constitutional law under
    either the Constitution of the United States
    or the State of New Jersey.
    Relying on the Supreme Court's decision in State v. Mitchell,
    
    126 N.J. 565
    , 583 (1992), the PCR judge found that "none of the
    three exceptions to the procedural bar outlined above apply."
    Notwithstanding    this    procedural     bar,   the   PCR   judge   reviewed
    defendant's claims of ineffective assistance of counsel under the
    standards   established    by   the   United     States   Supreme    Court    in
    Strickland v. Washington, 
    466 U.S. 668
     (1984), and subsequently
    adopted by our Supreme Court in State v. Fritz, 
    105 N.J. 42
     (1987),
    and found defendant did not establish a prima facie case for
    relief.
    Defendant now appeals, raising the following arguments:
    POINT ONE
    THIS   MATTER  MUST BE  REMANDED   FOR  AN
    EVIDENTIARY HEARING ON [DEFENDANT'S] CLAIM
    THAT TRIAL COUNSEL RENDERED INEFFECTIVE
    ASSISTANCE.
    POINT TWO
    THE $7000 SCVTF PENALTY MUST BE REVOKED OR THE
    MATTER   REMANDED   FOR   RECONSIDERATION   OF
    [DEFENDANT'S] CLAIM THAT IT MUST BE REVOKED.
    We reject these arguments and affirm. The PCR court correctly
    found defendant's argument are procedurally barred under Rule
    3:22-4.     Furthermore,    defendant's     allegations      of   ineffective
    6                                A-3635-15T3
    assistance based on trial counsel's decision to decline to present
    psychiatric evidence are meritless and unsupported by competent
    evidence.   R. 2:11-3(e)(2).    We affirm substantially for the
    reasons expressed by the PCR court.
    Affirmed.
    7                          A-3635-15T3
    

Document Info

Docket Number: A-3635-15T3

Filed Date: 7/26/2018

Precedential Status: Non-Precedential

Modified Date: 8/20/2019