RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3131-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

W.H.G.,

Defendant-Appellant.

_____________________________________

Submitted November 1, 2017 – Decided 

Before Judges Manahan and Suter.

On appeal from Superior Court of New Jersey, 

Law Division, Union County, Indictment No. 06-

04-0337.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Monique D. Moyse, Designated 

Counsel, on the brief).

Thomas K. Isenhour, Acting Prosecutor of Union 

County, attorney for respondent (Stephen 

William Bondi, Special Deputy Attorney 

General/Acting Assistant Prosecutor, on the 

brief).

Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE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.

June 29, 2018
2 A-3131-15T3

Defendant W.H.G. appeals the January 22, 2016 denial of his 

petition for post-conviction relief (PCR). We affirm.

I

In 2011, defendant was convicted by a jury of two counts of 

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); 

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

and two counts of endangering the welfare of a child, N.J.S.A. 

2C:24-4(a). At sentencing, the second-degree sexual assault 

counts were merged with the first-degree aggravated sexual assault 

counts. On the aggravated sexual assault counts, defendant was 

sentenced to two eighteen-year terms of imprisonment, to be served 

consecutively, with an eighty-five percent period of parole 

ineligibility and five years of parole supervision, subject to the 

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the 

endangering counts, defendant was sentenced to two ten-year terms 

to be served concurrently. 

We affirmed the conviction and sentence in an unpublished 

opinion, but remanded for the determination of penalties under the 

Sex Crime Violent Treatment Fund, N.J.S.A. 2C:14-10. State v. 

W.H.G., No. A-4238-11 (App. Div. Oct. 10, 2014) (slip op. at 27), 

certif. denied, 221 N.J. 285 (2015).

We derived the salient facts from our previous opinion. 
3 A-3131-15T3

Defendant's wife (Greta)1 had two children from a previous 

relationship. Lori was seven and her sister, Mary, was five when 

Lori told a classmate at school, K.V., that defendant, her 

stepfather, had sexually molested her. K.V. told her mother, who 

then told the principal of the school, who notified the Division 

of Youth and Family Services (Division) and the local police. 

"Both girls initially denied that they were being sexually 

molested by defendant or anyone else. Despite these verbal 

assurances, [the Division worker] note[d] that the children seemed 

guarded . . . [and] recommended in her report that the girls be 

re-interviewed at a future date 'out of the home and outside the 

presence of the stepfather.'" W.H.G., slip op. at 5-6. When the 

girls were interviewed, "Lori told her that defendant sexually 

abused her and her sister when they were at home alone with him 

when their mother was at work." Id. at 6. Then Mary also 

"described in graphic details of sexual activity that is ordinarily 

beyond the scope of knowledge associated with an eight-year-old 

girl." Id. at 7. At the prosecutor's office on December 1, 2015, 

Lori at first denied any sexual activity, but when confronted with 

 

1 We use the same fictitious names here for defendant's wife and 

her two children that we used in our 2014 opinion to maintain 

their privacy. See State v. W.H.G., No. A-4238-11 (App. Div. 

Oct 10, 2014). 
4 A-3131-15T3

a statement her sister had made, "finally admitted the full scope 

of the molestation in graphically disturbing details." Id. at 10. 

Mary's description was "far more graphic and direct." Ibid. As 

we said in our 2014 opinion, "[t]his child of tender years provided 

the detective who interviewed her devastatingly disturbing details 

of the sexual assault committed against her by defendant." Ibid.

"On December 15, 2005, both girls recanted their statements 

they had given to law enforcement authorities two weeks earlier 

accusing defendant of having sexual relations with them." Id. at 

14. Defendant went missing after December 1, 2005, until he was 

apprehended in Arizona in November 2009. 

At defendant's jury trial in 2011, the State called fourteen 

witnesses, "including Lori and Mary, who were then sixteen and 

fourteen years old respectively, their mother, Greta, a number of 

law enforcement officers, [Division] caseworkers, other lay 

persons with relevant knowledge of the event and two expert 

witnesses in the field of child sexual abuse." Ibid. The girls 

"reaffirmed at trial the recantations" they had given earlier. 

Ibid. Lori was confronted with a journal she had kept at school 

"in which she described the details of what defendant had allegedly 

done to her when she was ten years old." Ibid. The State's 

psychological expert, testified about her examinations of the 
5 A-3131-15T3

girls. Another State psychological expert, testified about child 

sexual abuse accommodation syndrome (CSAAS), but on crossexamination, defense counsel established that psychologists do not 

"consider CSAAS as being determinative of whether abuse occurred." 

Id. at 20. Defendant did not call any witnesses on his behalf. 

Defendant was convicted as we have described. 

Defendant filed a pro se petition for post judgment relief 

in 2015 that was supplemented by his appointed counsel. Defendant 

contended he was denied the effective assistance of counsel at his 

trial and by counsel who handled his appeal. He alleged that he 

was entitled to an evidentiary hearing because his trial counsel 

failed to conduct an investigation prior to trial or to call 

favorable witnesses. Defendant claimed he did not receive 

discovery nor discuss trial strategy with his attorneys. His 

attorneys did not conduct an effective cross-examination of the 

State's witnesses at trial or call favorable witnesses. He claimed 

they did not file any pre-trial motions. Defendant contended that 

exculpatory evidence was not presented and that his wife was misled 

by the police regarding the search of their home. He claimed his 

attorneys lacked an interest in his case and "there was an 

additional lack of serious understanding of the English language 
6 A-3131-15T3

by the defendant." Defendant asserted that his appellate counsel 

failed to raise any of these claims. 

Defendant's PCR petition was denied in January 2016. In 

rejecting his claims that counsel failed to investigate the case, 

the court noted that defendant "has not submitted any 

certifications or affidavits from other expert witnesses and has 

not made any proffer with respect to the testimony." He did not 

name "one favorable witness that trial counsel could have called, 

what said witness would have testified to, nor how the testimony 

would have altered the outcome of the trial." 

The court rejected defendant's claims about lack of discovery 

finding that he did not "detail[] which items he did not receive 

and how receipt of the undisclosed items would have altered the 

outcome of the trial." Without this, the court could not determine 

how this would have affected the case. A pretrial memorandum had 

stated that all pretrial discovery was completed.

As for defendant's claims about certain videotaped evidence, 

the court found that they were made available to him "during . . 

. [the] trial and the pretrial hearing." Relating to defendant's 

claim that his attorneys should have filed suppression motions, 

defendant did not point out what evidence supported his claim. 

The court rejected defendant's claim that counsel failed to present 
7 A-3131-15T3

exculpatory evidence because defendant did not describe what 

evidence he was referencing. The court found that his trial 

counsel's performance was not "objectively deficient" because he 

did not "offer[] any specific evidence of deficiency." Also, 

defendant did not show how he was prejudiced because "no evidence 

[was] presented to this [c]ourt that the outcome would have changed 

by counsel doing anything that [p]etitioner alleges that counsel 

failed to do." The court rejected defendant's claims about his 

appellate counsel for the same reasons.

In his appeal from the denial of his PCR petition, defendant 

raises the following issues:

[W.H.G.] IS ENTITLED TO AN EVIDENTIARY HEARING 

ON HIS CLAIM THAT HIS ATTORNEYS RENDERED 

INEFFECTIVE ASSISTANCE OF COUNSEL.

In his pro se brief, defendant also alleges that:

Legal Argument I

Appellant's Trial Counsel Rendered 

Ineffective/Remedial Ineffective Assistance 

Of Counsel For Gravely Failing To Investigate 

And Gravely Failing To Adequately Consulting 

[sic] With Appellant.

Legal Argument II

It Was Prejudicial Error To Deny Appellant His 

Post-Conviction Relief Of An Evidentiary 

Hearing, Pursuant to R. 3:22-10.

Legal Argument III
8 A-3131-15T3

The Prosecutorial Misconduct Deprived 

Appellant's [sic] A Fair Jury Trial With The 

Bolstering Of The Credibility For The State's 

Witnesses.

Legal Argument IV

Appellant Submit That The Lower Court 

Dismissed The Fundamental Value Of A 

Witness/Witnesses Recantation From Initial 

Complaint/Statements And This Deprived A Fair 

Jury Trial.

We find no merit in any of these arguments. 

II

The standard for determining whether counsel's performance 

was ineffective for purposes of the Sixth Amendment was formulated 

in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by 

our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order 

to prevail on an ineffective assistance of counsel claim, defendant 

must meet a two-prong test by establishing that: (l) counsel's 

performance was deficient and he or she made errors that were so 

egregious that counsel was not functioning effectively as 

guaranteed by the Sixth Amendment to the United States 

Constitution; and (2) the defect in performance prejudiced 

defendant's rights to a fair trial such that there exists "a 

reasonable probability that, but for counsel's unprofessional 

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

Strickland, 466 U.S. at 694. 
9 A-3131-15T3

"[W]hen a petitioner claims his trial attorney inadequately 

investigated his case, he must assert the facts that an 

investigation would have revealed, supported by affidavits or 

certifications based upon the personal knowledge of the affiant 

or the person making the certification." State v. Porter, 216 

N.J. 343, 353 (2013) (alteration in original) (quoting State v. 

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). 

Here, although he claimed his attorneys failed to investigate 

the case, find favorable witnesses, or present exculpatory 

information, we agree with the PCR judge that these claims lacked 

any specific information. Without that information, the court 

could not determine what should have been investigated or how it 

would have changed the outcome of the trial. 

Defendant does not say what discovery he did not receive. 

He does not say what pre-trial motions should have been filed that 

were not. His allegations are supported only by self-serving 

assertions and bare allegations. See Cummings, 321 N.J. Super. 

at 170 ("[A] petitioner must do more than make bald assertions 

that he was denied the effective assistance of counsel."). 

He claims his attorneys did not consult with him but, he is 

not specific about what was not discussed, when this occurred, or 

how this would have made a difference. In fact, the transcript 
10 A-3131-15T3

from May 2011, indicates defendant's counsel spoke with him about 

whether he still wanted to go to trial "and his position remain[ed] 

the same, that he still wishe[d] to go to trial, [and did] not 

want to entertain any sort of plea negotiations." Defendant was 

"maintaining his innocence and that he wishe[d] to proceed to 

trial."

Defendant contends he should have had an interpreter but 

there was no indication that his counsel had difficulty speaking 

with him as early as May 2011. He has submitted pro se pleadings 

to the court without any showing that they were translated. 

Defendant contends in his pro se brief that his trial counsel 

should have moved for a mistrial because the State bolstered its 

witnesses at trial. He cites to two passages from the State's 

summation to support his claim. However, we addressed the nature 

of the prosecutor's summation in the direct appeal where defendant 

"claim[ed] certain parts of the prosecutor's summation were highly 

improper and deprived him of his constitutional right to a fair 

trial." W.G.H., slip op. at 2-3. Although we applied the plain 

error standard in rejecting his claims, we also said that "we are 

thoroughly convinced that defendant's argument lacks sufficient 

merit to warrant further discussion in a written opinion." Id.

at 25 (citing to Rule 2:11-3(e)(2)). Defendant now alleges 
11 A-3131-15T3

prosecutorial misconduct but failed to provide any factual 

allegations or point to any areas of the trial transcript where 

this misconduct occurred. 

His claim on appeal that the "lower court dismissed the 

fundamental value of a witness/witnesses recantations," depriving 

him of a fair trial, lacks merit because he was convicted by a 

jury, not the judge. 

We agree with the PCR judge that defendant failed to show how 

any of the issues he raised in his petition would have changed the 

outcome of the trial and thus, he failed to meet the prejudice 

prong of Stickland. 

Defendant contends his appeals counsel should have raised all 

the arguments he raises here, but because they lack merit, there 

was no error by counsel in not raising them. 

We are satisfied from our review of the record that defendant 

failed to make a prima facie showing of ineffectiveness of trial 

counsel within the Strickland/Fritz test. Accordingly, the PCR 

court correctly concluded that an evidentiary hearing was not 

warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

Any other appellate arguments raised by defendant are without 

sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.