RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0966-17T4

STATE OF NEW JERSEY, 

Plaintiff-Respondent, 

v. 

G.L.D.,

Defendant-Appellant.

________________________

Argued telephonically January 27, 2020 –

Decided April 24, 2020

Before Judges Ostrer and Vernoia. 

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Indictment No. 07-05-

0744.

G.L.D., appellant, argued the cause pro se. 

Jennifer Bentzel Paszkiewicz, Assistant Prosecutor,

argued the cause for respondent (Scott A. Coffina, 

Burlington County Prosecutor, attorney for respondent;

Jennifer Bentzel Paszkiewicz, of counsel and on the 

brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2

A-0966-17T4

Defendant G.L.D. appeals from an order denying his second postconviction relief (PCR) petition without an evidentiary hearing. Defendant 

primarily claims his trial counsel and counsel on his first PCR petition were 

constitutionally ineffective by failing to challenge what he characterizes as the 

State's unconstitutional constructive amendment of the indictment and

presenting testimony that he contends resulted in his conviction of offenses not 

charged in the indictment. Having considered the record in light of the 

applicable legal principles, we find no merit to defendant's arguments, and

affirm.

I.

Defendant was charged in a thirteen-count indictment with sexual assault, 

sexual contact, and endangering-the-welfare-of-a-child offenses. The victim of 

the alleged offenses is defendant's stepdaughter, D.E., who was between ages

ten and fifteen when the offenses occurred. The indictment alleged three of the 

offenses were committed on September 9, 2006, and the remaining ten offenses 

were committed on numerous occasions between other specified "diverse dates." 

The indictment further alleged the offenses were committed in Pemberton

Township, and the evidence presented to the grand jury showed D.E. reported 
3

A-0966-17T4

the crimes were committed during D.E.'s visits to the Pemberton home defendant 

shared with D.E.'s mother.

Prior to trial, the State moved to amend the indictment to correct what 

were described as clerical errors. The proposed amendments narrowed the 

diverse dates during which it was alleged defendant committed some of the 

alleged offenses, and more specifically alleged defendant was D.E.'s stepfather. 

Defendant's trial counsel did not object to the requested amendments, and the 

court granted the State's motion. 

Prior to trial, the State also advised defendant's trial counsel it intended to 

move to amend the indictment to allege some of the offenses were committed at 

a location outside of defendant's Pemberton residence. More particularly, the 

State advised D.E. had just reported one of the sexual assaults took place at a

Westampton Township motel, and the State intended to move "at trial to amend 

the jurisdictions alleged in the indictment to include 'Pemberton Township (as 

it currently reads) and/or Westampton Township.'" 

The State never moved to amend the indictment to include Westampton 

as a location of any of the alleged offenses. However, at trial, D.E. testified 

without objection concerning defendant's commission of a sexual assault in 
4

A-0966-17T4

Westampton. She also testified defendant committed the offenses charged in 

the indictment at defendant's Pemberton residence.

Following presentation of the evidence, the judge charged the jury on the 

elements of the charged offenses. For each of the offenses charged in the 

indictment, the judge instructed the jury to determine whether defendant 

committed the crimes in Pemberton. The judge did not request or require the 

jury determine whether defendant committed any of the offenses in 

Westampton. 

The jury convicted defendant of two counts of second-degree sexual 

assault, N.J.S.A. 2C:14-2(b); three counts of second-degree endangering the 

welfare of a child, N.J.S.A. 2C:24-4(a); four counts of first-degree aggravated 

sexual assault, N.J.S.A. 2C:14-2(a)(2)(a) and (c); and four counts of thirddegree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). The jury found 

beyond a reasonable doubt each offense was committed in Pemberton, as 

charged in the indictment.

We summarized the evidence presented at trial and affirmed defendant's 

convictions on his direct appeal, State v. G.L.D., No. A-4122-08 (App. Div. June 

8, 2011) (slip op. at 3-10, 27). The Supreme Court denied his petition for 

certification, State v. G.L.D., 209 N.J. 596 (2012).
5

A-0966-17T4

Defendant filed a PCR petition as a self-represented litigant, and he was 

assigned PCR counsel. In correspondence to his counsel, defendant questioned 

"the constitutional sufficiency of the indictment, and [his] ability to defend 

against the charges." He asserted the prosecutor "insert[ed] new allegations" 

concerning the Westampton incident, thereby "amend[ing] the indictment 

without re-presentment to a [g]rand [j]ury" to "circumvent" defendant's alleged 

"alibi." 

In correspondence to PCR counsel, defendant further questioned his trial 

counsel's failure "to object to the amending of the indictment" and claimed the 

purported constructive amendment of the indictment included an allegation not 

presented to the grand jury—that defendant committed offenses in Westampton. 

Defendant advised PCR counsel that, in his view, his trial counsel failed to 

challenge an unconstitutional amendment of the indictment. 

At a hearing on defendant's petition, his PCR counsel argued trial counsel 

was ineffective by failing to subpoena defendant's work records that would have 

established an alleged alibi, and by failing to obtain D.E.'s psychotherapy 

records. PCR counsel did not assert trial counsel erred by failing to object to 

the purported constructive amendment of the indictment to include alleged 

Westampton offenses. The court ordered an evidentiary hearing to determine if 
6

A-0966-17T4

trial counsel was ineffective by failing to subpoena the work records and obtain 

D.E.'s psychotherapy records. 

Defendant claims his PCR counsel's brief to the court did not include the

argument trial counsel was ineffective by failing to object to the purported

constructive amendment of the indictment. Defendant contends he sent a pro se 

brief to his PCR counsel, asserting an ineffective assistance of counsel claim 

based on trial counsel's failure to object to the purported amendment.1 

In response, PCR counsel advised defendant she made the "strategic 

decision" not to argue trial counsel should have challenged the amendment of 

the indictment. Instead, she believed it was better to focus on trial counsel's 

alleged failure to adequately cross-examine D.E. concerning her inconsistent 

reports about the alleged offenses; and she noted defendant's argument trial 

counsel should have challenged the amendment of the indictment "is an out of 

time argument that is barred because [it was not] raise[d] in the brief" she filed. 

PCR counsel advised defendant that he could submit his pro se brief to the court, 

but that she did "not argue claims that are not" hers. Defendant opted not to 

submit his pro se brief to the PCR court.

 

1

 The record on appeal does not include the pro se brief.
7

A-0966-17T4

Following a three-day evidentiary hearing, the PCR court determined trial 

counsel's failure to obtain defendant's work records and D.E.'s psychotherapy 

records did not constitute ineffective assistance of counsel. The court found 

defendant failed to demonstrate his work records, if obtained, would have 

supported an alibi defense to D.E.'s claims she was sexually assaulted on 

numerous occasions over a five-year period while spending weekends with her 

mother at defendant's home. The court also found defendant failed to present 

any evidence that if D.E.'s psychotherapy records had been obtained, they would 

have "impacted [her] credibility or further exculpated" defendant. The court 

entered an order denying defendant's PCR petition.

Defendant appealed the denial of his petition. In pertinent part, his 

appellate counsel argued trial counsel was ineffective by failing to challenge the 

indictment, and by allowing D.E. to change her testimony concerning the 

location of the alleged sexual assaults. We affirmed the denial of defendant's 

first PCR petition, State v. G.L.D., No. A-1740-13 (App. Div. Mar. 18, 2016)

(slip op. at 11), "substantially for the reasons set forth" in the PCR court's written 

opinion, and we rejected defendant's arguments, noting they lacked sufficient 

merit to warrant discussion in a written opinion, id. at 1, 11. The Supreme Court 

denied defendant's petition for certification. State v. G.L.D., 229 N.J. 15 (2017).
8

A-0966-17T4

Defendant filed a pro se second PCR petition. He claimed his PCR 

counsel was ineffective by failing to raise meritorious claims in support of the

first PCR petition. More particularly, defendant claimed his PCR counsel failed 

to assert his trial counsel was ineffective by failing to: challenge the sufficiency 

of the indictment; request a bill of particulars; and object to the State's motion 

to amend the indictment. Defendant further alleged PCR counsel was 

ineffective by failing to argue his trial counsel's purported errors, including trial 

counsel's failure to challenge the purported constructive amendment of the 

indictment, deprived him of a fair trial. 

In an October 10, 2017 letter to defendant, the court noted the petition did 

not rely on a new rule of constitutional law that was unavailable during the 

pendency of the prior proceedings. See R. 3:22-4(b)(2)(A). The court further 

found defendant's petition did not establish a prima facie case of ineffective 

assistance of PCR counsel on his first petition. See R. 3:22-4(b)(2)(C). The 

court "determined [the petition] is without 'merit' and, therefore, denied." This 

appeal followed. 

Defendant presents the following arguments for our consideration:

POINT I

THE STATE'S AMENDING OF THE INDICTMENT 

IN THIS INSTANCE CONSTITUTED AN 
9

A-0966-17T4

IMPERMISSIBLE "CONSTRUCTIVE 

AMENDMENT," WHICH BROADENED THE 

POSSIBLE BASES FOR CONVICTION FROM THAT 

WHICH APPEARED IN THE INDICTMENT IN 

VIOLATION OF DEFENDANT'S FIFTH 

AMENDMENT RIGHT TO BE TRIED ONLY ON 

OFFENSES FOUND BY THE GRAND JURY. 

A. The State's Amending Of The Indictment 

Constituted An Impermissible "Constructive 

Amendment." 

B. The State's Amending Of The Indictment Does Not 

Constitute A Proper Variance. 

POINT II

THE PCR COURT ERRED IN DENYING 

DEFENDANT'S SECOND PETITION FOR POSTCONVICTION RELIEF WITHOUT A HEARING 

BECAUSE DEFENDANT ALLEGED A PRIMA 

FACIE CASE OF INEFFECTIVE ASSISTANCE OF 

FIRST PCR COUNSEL PURSUANT TO R. 3:22-6(d); 

[STATE V. RUE], 175 N.J. 1 (2002); [STATE V. 

WEBSTER], 187 N.J. 254 (2006); AND [STATE V. 

HICKS], 411 N.J. SUPER. 370 ([App. Div.] 2010).

A. Legal Standard for Effective Assistance of PCR 

Counsel. 

B. Defendant Alleged a Prima Facie Claim of 

Ineffective Assistance of First PCR Counsel.

C. Defendant Was Prejudiced by PCR Counsel's 

Failure to Advance the Improper Amending of the 

Indictment Issue. 
10 A-0966-17T4

POINT III

DEFENDANT WAS DENIED THE EFFECTIVE 

ASSISTANCE OF BOTH TRIAL AND DIRECT 

APPEAL COUNSELS CONSTITUTIONALLY 

GUARANTEED BY THE U.S. CONST., AMENDS. 

VI, XIV; N.J. CONST. ART. I, PAR. 10.

A. Trial Counsel Was Ineffective. 

B. Direct Appeal Counsel Was Ineffective. 

POINT IV

TRIAL COUNSEL'S NUMEROUS DECEPTIVE 

PRETRIAL ACTIONS VIOLATED DEFENDANT'S 

SIXTH AMENDMENT GUARANTEED RIGHT TO 

CHOOSE THE OBJECTIVE OF HIS DEFENSE 

[McCOY V. LOUISIANA], 548 U.S. __, 138 S. Ct. 

1500, 200 L.Ed. 2d 821 (2018).

POINT V

DEFENDANT'S ACTUAL INNOCENCE IS A 

GATEWAY THROUGH WHICH HE MAY PASS, 

ALLOWING HIM TO PRESENT HIS INEFFECTIVE 

COUNSEL CLAIMS ON THE MERITS 

NOTWITHSTANDING ANY PROCEDURAL BARS. 

Based on our review of the record, we are not persuaded by defendant's 

arguments, and we affirm.

II.

We review the legal conclusions of the PCR court de novo. State v. Harris, 

181 N.J. 391, 419 (2004). This standard of review applies to mixed questions 
11 A-0966-17T4

of law and fact. Id. at 420. Where, as here, the PCR court did not conduct an 

evidentiary hearing, we may "conduct a de novo review of both the factual 

findings and legal conclusions of the PCR court." Id. at 421. We apply these 

standards to our review of the issues raised by defendant.

A.

We first note we will not consider or address the arguments raised in 

Points I(B), IV, and V of defendant's brief because, as he acknowledges, they 

were not raised before the PCR judge. "For sound jurisprudential reasons, with 

few exceptions, '[we] will decline to consider questions or issues not properly 

presented to the trial court when an opportunity for such a presentation is 

available.'" State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson, 

200 N.J. 1, 20 (2009)). We discern no basis to depart from that well-settled 

principle here.

B.

In Point I, defendant argues the indictment alleged he committed all of the 

charged offenses in Pemberton, but the State constructively amended the 

indictment by introducing D.E.'s testimony he committed a sexual assault at a 

Westampton motel. Defendant argues the purported constructive amendment 

deprived him of his right to have a grand jury determine the charges and further 
12 A-0966-17T4

deprived him of a fair trial because he was not adequately advised of the charges 

against him.

Defendant recognizes the State never moved to amend the indictment to 

allege he committed any offenses in Westampton. He claims, however, the State

constructively amended the indictment by introducing evidence—D.E.'s 

testimony—that a sexual assault occurred at a Westampton motel. Relying on 

federal precedent, defendant claims an unconstitutional constructive amendment 

of an indictment occurs when "evidence, arguments, or the [] court's jury

instructions effectively 'amend[] the indictment by broadening the possible 

bases for conviction from that which appeared in the indictment.'" United States 

v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) (quoting United States v. Lee, 359 

F.3d 194, 208 (3d Cir. 2004)); see also Stirone v. United States, 361 U.S. 212, 

218-19 (1960). 

"An indictment is constructively amended when, in the absence of a 

formal amendment, the evidence and jury instructions at trial modify essential 

terms of the charged offense in such a way that there is a substantial likelihood 

that the jury may have convicted the defendant for an offense differing from the 

offense the indictment returned by the grand jury actually charged." United 

States v. Daraio, 445 F.3d 253, 259-60 (3d Cir. 2006) (footnote omitted); see
13 A-0966-17T4

also United States v. Thomas, 274 F.3d 655, 670 (2d Cir. 2001) (explaining an 

unconstitutional constructive amendment of an indictment occurs where the 

court's action creates "a substantial likelihood that the defendant may have been 

convicted of an offense other than that charged in the indictment"). As the court 

noted in McKee, where "the government can show with certainty that the jury 

did not convict" based on the evidence the defendant claims resulted in the 

constructive amendment, no reversal of the defendant's conviction is required. 

506 F.3d at 231. 

Here, there was no constructive amendment of the indictment to include 

the commission of the sexual assault in Westampton. As noted, the jury was 

instructed to determine whether defendant committed each of the offenses in 

Pemberton, and the jury determined beyond a reasonable doubt defendant 

committed each offense in Pemberton, as charged in the indictment. The record 

therefore establishes with certainty the jury convicted defendant solely of 

offenses committed in Pemberton, and D.E.'s testimony about the Westampton 

sexual assault did not result in a conviction for an offense not charged in the 

indictment. See ibid. For that reason alone, we reject defendant's claim he was 

denied a fair trial by any purported unconstitutional constructive amendment of 

the indictment.
14 A-0966-17T4

We are further unpersuaded by defendant's reliance on our Supreme 

Court's decision in State v. Dorn, 233 N.J. 81 (2018). In pertinent part, the Court 

addressed the circumstances under which an indictment may properly be 

amended pursuant to Rule 3:7-4. Id. at 94-96. The Court held an indictment 

may not be amended where "an amendment goes to the core of the 

offense[,] . . . where it would prejudice a defendant in presenting his or her 

defense," id. at 95, or where the amendment charges "a more serious offense,"

id. at 96. The Court's holding is inapposite here because there was no actual 

amendment of the indictment and no constructive amendment resulting in the 

jury's determination of any charges other than those in the indictment. The 

indictment charged defendant with committing the offenses in Pemberton, and 

the jury found he committed the offenses for which he was convicted in 

Pemberton. 

We also reject defendant's claim because it is barred under Rule 3:22-5, 

which provides "[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] prior adjudication on the merits ordinarily constitutes a 

procedural bar to the reassertion of the same ground as a basis for post-
15 A-0966-17T4

conviction review." State v. Preciose, 129 N.J. 451, 476 (1992) (citing R. 3:22-

5). "[A] defendant may not use a petition for post-conviction relief as an 

opportunity to relitigate a claim already decided on the merits." State v. 

McQuaid, 147 N.J. 464, 483 (1997) (citation omitted). 

On his direct appeal from the denial of his first PCR petition, defendant

argued his trial counsel erred by failing to challenge the purported constructive 

amendment of the indictment and D.E.'s testimony about the Westampton sexual 

assault. He also argued the amendment and testimony resulted in a denial of his 

right to due process and a fair trial. We rejected the argument, finding it lacked 

sufficient merit to warrant discussion in a written opinion. G.L.D., No. A-1740-

13, slip op. at 11. The argument we rejected is substantially similar to, if not 

identical to, the argument defendant currently makes in Point I of his brief on 

appeal. See State v. Marshall, 173 N.J. 343, 351 (2002) (explaining Rule 3:22-

5 bars reconsideration on a second PCR petition of a claim that is "identical or 

'substantially equivalent'" to a claim adjudicated in a first PCR petition). The 

argument is therefore barred under Rule 3:22-5. 

C.

In Point II, defendant argues the PCR court erred by rejecting his claim 

counsel on his first PCR petition was ineffective and failed to comply with Rule
16 A-0966-17T4

3:22-6(d) by failing to argue, as requested, that trial counsel was ineffective by 

failing to challenge the purported constructive amendment to the indictment. 

Defendant claims the court therefore erred by dismissing his second PCR 

petition based on a finding he did not demonstrate a prima facie claim of 

ineffective assistance of PCR counsel.

The right to the effective assistance of counsel extends to PCR counsel.

See State v. Rue, 175 N.J. 1, 18-19 (2002). To establish a prima facie claim of 

ineffective assistance of counsel, a defendant must demonstrate a reasonable 

likelihood of success under the two-prong standard established in Strickland v. 

Washington, 466 U.S. 668, 686 (1984), and adopted by our Supreme Court in 

State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland, a defendant first must 

show that his attorney's handling of the matter "fell below an objective standard 

of reasonableness." Strickland, 466 U.S. at 688. Second, a defendant must show 

there exists a "reasonable probability that, but for counsel's unprofessional 

errors, the result of the proceeding would have been different." Id. at 694. 

Defendant argues his PCR counsel failed to comply with Rule 3:22-6(d), 

which requires PCR counsel "advance all of the legitimate arguments requested 

by the defendant that the record will support," R. 3:22-6(d), and "make the best 

available arguments in support of them," Rue, 175 N.J. at 19. When counsel 
17 A-0966-17T4

deems a claim to be meritless, counsel must still "list such claims in the petition 

or amended petition or incorporate them by reference." R. 3:22-6(d); accord

State v. Webster, 187 N.J. 254, 257-58 (2006). The Rule also permits the 

submission of pro se briefs asserting a defendant's arguments. R. 3:22-6(d).

Defendant's request that his PCR counsel argue trial counsel was 

ineffective by failing to challenge the purported constructive amendment of the 

indictment went unheeded. PCR counsel did not believe the argument had merit, 

explained that for strategic reasons she did not believe the argument should be 

made, and informed defendant she would not make the argument on his behalf. 

In the end, PCR counsel did not make the requested argument, list it for the 

court, or incorporate it by reference as required by Rule 3:22-6(d). In other 

words, PCR counsel did not comply with the Rule's requirements.2

In Webster, the Court determined, under the circumstances presented, 

PCR counsel's failure to comply with the requirements of Rule 3:22-6(d)

required a remand to the PCR court to address the omitted arguments in the first 

instance. 187 N.J. at 257-58. In Rue, the Court determined a remand was 

 

2

 As noted, Rule 3:22-6(d) permits the filing of pro se briefs, and defendant 

opted not to file his pro se brief following his communications with PCR 

counsel. Based on the record presented, however, we do not find defendant's 

apparent decision not to file a pro se brief relieved PCR counsel of her 

obligations under the Rule.
18 A-0966-17T4

required where, in PCR counsel's arguments to the court, counsel "counter[ed] 

every one of" the claims asserted in the defendant's PCR petition, and 

"characteriz[ed] the entire petition as meritless." 175 N.J. at 19. The Court 

found, under those circumstances, it was appropriate to remand the PCR 

petition, assign the defendant new PCR counsel, and provide the defendant with 

a new hearing on the petition. Ibid.

Although defendant's PCR counsel failed to comply with Rule 3:22-6(d)'s 

requirements, a remand is not required. There are no disputed factual issues

concerning defendant's constructive amendment argument; the indictment 

alleged all of the charged crimes occurred in Pemberton, and it is undisputed

D.E. testified without objection about the Westampton sexual assault.

Whether the testimony resulted in an unconstitutional constructive 

amendment of the indictment presents a purely legal issue that we may properly 

decide de novo. See Harris, 181 N.J. at 419. Thus, although PCR counsel should 

have made the argument as required under Rule 3:22-6, we may properly decide 

the issue without a remand. Moreover, we have addressed the issue and 

determined D.E.'s testimony did not result in an impermissible constructive 

amendment of the indictment. As noted, the jury convicted defendant only of 

crimes committed in Pemberton, as alleged in the indictment. His trial counsel 
19 A-0966-17T4

was not ineffective by failing to make the meritless argument there was an 

unconstitutional constructive amendment of the indictment. See, e.g., State v. 

O'Neal, 190 N.J. 601, 619 (2007) (holding "[i]t is not ineffective assistance of 

counsel for defense counsel not to file a meritless motion . . . ."); State v. 

Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal 

arguments does not constitute ineffective assistance of counsel."). Similarly, 

his PCR counsel was not constitutionally ineffective by failing to make an 

argument, even one suggested by defendant, that lacks support in the facts or 

applicable law. We therefore reject defendant's claim he is entitled to either a 

remand or reversal of his conviction based on his PCR counsel's failure to argue 

his trial counsel was ineffective by failing to object to the purported constructive 

amendment of the indictment. 

D.

In Point III of his brief, defendant argues his trial counsel was ineffective 

because he failed to challenge the purported constructive amendment of the 

indictment, and his appellate counsel was ineffective by failing to argue, on the 

appeal from the denial of his first PCR petition, that PCR counsel was ineffective 

by failing to argue trial counsel was ineffective for not challenging the purported 

constructive amendment. We find the arguments are without sufficient merit to 
20 A-0966-17T4

warrant discussion in a written opinion for the reasons we have already 

explained. R. 2:11-3(e)(2). 

We reiterate only defendant's claim his trial counsel erred by failing to 

object to the alleged constructive amendment of the complaint was addressed 

and rejected in our decision affirming the denial of his first PCR petition,

G.L.D., No. A-1740-13, slip op. at 2-3, and, as a result, the claim is barred under 

Rule 3:22-5. Additionally, defendant's claims concerning trial counsel and 

appellate counsel are founded on a false premise—that there was an 

unconstitutional constructive amendment of the indictment. Neither counsel 

was ineffective by failing to make a meritless argument. O'Neal, 190 N.J. at 

619; Worlock, 117 N.J. at 625; see also State v. Gaither, 396 N.J. Super. 508, 

515-16 (App. Div. 2007) (holding appellate counsel is not "required to advance 

every claim insisted upon by a client on appeal"); State v. Morrison, 215 N.J. 

Super. 540, 549 (App. Div. 1987) (noting "appellate counsel does not have a 

constitutional duty to raise every nonfrivolous issue requested by the 

defendant"). 

Any arguments made by defendant we have not expressly addressed are 
21 A-0966-17T4

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2). 

Affirmed.