RECORD IMPOUNDED

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

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,

NOT FOR PUBLICATION WITHOUT THE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.

July 26, 2018
2 A-3635-15T3

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).
3 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.
4 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 seconddegree 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 
5 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
6 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 
7 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.