NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6396-06T46396-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE C. RILEY,

Defendant-Appellant.

_____________________________

Submitted May 12, 2008 - Decided

Before Judges Parrillo and S.L. Reisner.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 86-03-0365.

George C. Riley, appellant pro se.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel; Courtney L. Darsch, Legal Assistant, on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant George C. Riley appeals from an order of the Law Division denying his fifth petition for post-conviction relief (PCR). We affirm.

On appeal, defendant pro se asserts the following issues in his main brief:

I. THE 20-YEAR SENTENCE IMPOSED UPON DEFENDANT IS ILLEGAL DUE TO FAILURE OF COUNT 3 TO ALLEGE SPECIFIC SEXUAL PURPOSE ELEMENT IN CHARGING VIOLATION OF N.J.S.A. 2C:14-1d, WAS FATALLY DEFECTIVE, WITHOUT WHICH THE CHARGE IS HARASSMENT UNDER N.J.S.A. 2C:33-4a.

II. DEFENDANT WAS DENIED HIS RIGHT OF INDICTMENT BY GRAND JURY AS [COUNT] 3 FAILED TO CHARGE THE (5) ESSENTIAL ELEMENTS OF OFFENSE FOR WHICH DEFENDANT STANDS CONVICTED, AND DENIED A FAIR TRIAL WHEN THE JUDGE INCLUDED THE MISSING ELEMENTS IN HIS JURY INSTRUCTIONS, AT THE PROSECUTOR'S REQUEST, AT THE CLOSE OF THE STATE'S CASE.

III. DEFENDANT'S CLAIMS FOR RELIEF ASSERTED WERE NOT PREVIOUSLY ADJUDICATED ON THE MERITS, THE LACK OF ALLEGATIONS IN COUNT 3 REVEALS A [JURISDICTIONAL] DEFECT ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS R. 3:22-4(b) AND (c); ALTERNATIVELY, THE TIME BAR IS ENTITLED TO RELAXATION PURSUANT TO R. 3:22-12 AND R. 1:1-2.

IV. THE CHARGE OF ATTEMPTED SEXUAL ASSAULT WAS SO TOTALLY DEVOID OF EVIDENTIARY SUPPORT AS TO RENDER DEFENDANT'S CONVICTION UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT [Partially Raise[d] Below] [Thompson v. Louisville, 80 S. Ct. 624 (1969)].

V. THE COURT SHOULD ACCEPT JURISDICTION OF THE ISSUES RAISED AS IF THIS WAS A DIRECT APPEAL.

In a pro se reply brief, defendant asserts the following issues:

I. THE STATE'S ARGUMENT THAT DEFENDANT IS BARRED FROM POST-CONVICTION RELIEF, IS INCORRECT AS COUNT 3 FAILS TO STATE AN OFFENSE AND IT IS VOID, THUS BARS THE JUDGMENT FROM HAVING ANY RES JUDICATA EFFECT.

A. THE STATE'S ARGUMENT THAT DEFENDANT'S SENTENCE IS NOT ILLEGAL, IS INCORRECT IN VIEW OF THE FAILURE OF INDICTMENT TO CHARGE THE KEY ELEMENTS OF SCIENTER FAILED TO STATE A SECOND-DEGREE OFFENSE.

B. THE STATE'S ARGUMENT THAT DEFENDANT'S LACK OF INDICTMENT CLAIM IS PROCEDURALLY BARRED IS BASED UPON A FAULTY PREMISE, SINCE JURISDICTIONAL DEFECTS IN INDICTMENTS MAY NOT BE DEFAULTED.

C. THE STATE'S ARGUMENT THAT NO EXCEPTIONS APPLY TO THE PROCEDURAL BARS, IS PATENTLY INCORRECT SINCE INDICTMENT DEFECTS INVOLVE CLAIMS OF FUNDAMENTAL INJUSTICE WITHIN THE EXCEPTIONS OF R. 3:22-4(b)(c) AND R. 1:1-2.

II. THE STATE'S LACK OF OPPOSITION TO DEFENDANT'S TO DEFENDANT'S [SIC] UNCONSTITIONAL CONVICTION UNDER THOMPSON V. LOUISVILLE, OF SECOND-DEGREE ATTEMPTED SEXUAL CONTACT BASED UPON EVIDENCE OF A DISORDERLY PERSONS OFFENSE.

In a pro se supplemental brief, defendant asserts the following issues:

I. DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE ON THE ISSUES SPECIFIED HEREIN SUCH THAT THE DEFICIENT PERFORMANCE CERTAINLY PREJUDICED THE OUTCOME OF DEFENDANT'S PCR PROCESS.

A. DURING THE PCR PROCEEDINGS[,] COUNSEL FAILED TO COMMUNICATE WITH DEFENDANT, AND FAILED TO ARGUE THAT FIVE (5) MISSING INDISPENSABLE ESSENTIAL ELEMENTS FROM INDICTMENT; AND MISAPPLIED SECTION (C) OF R. 3:10-2 RATHER THAN SECTION (E) TO SUBSTANTIVE JURISDICTIONAL DEFECT IN COUNT 3.

B. PCR COUNSEL FAILED TO PROVIDE ADEQUATE LEGAL ASSISTANCE BECAUSE DEFENDANT'S ILLEGAL SENTENCE IS NOT BASED UPON EXCESSIVE SENTENCE, BUT UPON THE CHARGING DEFECT IN COUNT 3, I.E., FAILURE TO ALLEGE INDISPENSABLE CULPABLE MENTAL STATE AS ELEMENT OF OFFENSE RENDERS COUNT 3 FUNDAMENTALLY DEFECTIVE AND THE SENTENCE ILLEGAL.

C. PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO SUPPLEMENT PCR MOTION WITH THE CLAIM THAT DEFENDANT WAS DENIED DUE PROCESS WHEN THE PUBLIC DEFENDER WITHDREW [FROM] HIS FIRST APPEAL, AND NO RECORD EXISTS OF ANY COURT INVESTIGATING WHETHER DEFENDANT HAS MADE A KNOWING AND VOLUNTARY WAIVER OF COUNSEL, BECAUSE, NOT SUBJECT TO PROCEDURAL DEFAULT.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se and we are satisfied that none of them is of any merit. R. 2:11-3(e)(2). We explain our reasons why.

By way of background, in 1986, defendant was indicted, tried and convicted of attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(1) (count one); attempted endangerment of the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a) (count two); and attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b) (count three). The court merged the attempted sexual assault and attempted endangering into the attempted aggravated sexual assault and sentenced defendant to an extended term, imposing a sentence of 20 years in prison subject to a parole ineligibility period of 10 years.

On direct appeal, we reversed defendant's conviction of attempted aggravated sexual assault on the basis of insufficiency of evidence. State v. Riley, No. A-1009-86T4 (App. Div. Dec. 11, 1987) (slip op. at 8-9). We affirmed, however, defendant's conviction of attempted sexual assault, into which lesser included offenses of which he was also convicted had been merged. Ibid. We also vacated the sentence, a twenty-year term subject to a ten-year parole ineligibility period, which had been imposed for the attempted aggravated sexual assault, and remanded for resentencing. Ibid. We pointed out, however, that since both attempted aggravated sexual assault and attempted sexual assault are second-degree crimes, the original sentence could, on reconsideration, nevertheless, be imposed. Ibid. Defendant's petition for certification to the Supreme Court was denied. State v. Riley, 110 N.J. 308 (1988).

The facts underlying defendant's second-degree attempted sexual assault conviction were detailed in our opinion on direct appeal:

The gravamen of the State's case was defendant's attempted seduction of an 11-year-old girl, B.M. Defendant, a 52-year-old municipal sanitation worker, serviced the street on which B.M. lived and was apparently attracted to her by his frequent observation of her in and around her home. On January 22, 1986, defendant made his first of a number of telephone calls to B.M.'s home. The call was made in the afternoon after school hours. B.M. and a friend of hers were alone in the house. That call was followed by several others that day and the next and were all of erotic content. During these calls defendant also told B.M. that if she wanted to contact him, she should leave a note under the lid of the garbage can. Sometime thereafter B.M.'s friend, in B.M.'s presence, called defendant to ask him to stop annoying them and to tell him that they were only 12 years old. Several days later B.M.'s friend told her own parents about these calls. The local police were informed and became involved, obtaining the cooperation of both B.M. and her parents. Their first step was to have B.M. write a note to defendant as he had requested. The note, taped to the lid of the garbage can, simply asked him to call her between 3:30 and 5:00 p.m. The next day defendant called, explained to B.M. that he had been on vacation since his last call, and repeated his sexually explicit monologue. That telephone call was taped by the police with the county prosecutor's consent. Two days later B.M., again on police instruction, placed another note on the garbage can lid, this one stating that she could not write a love letter as he had requested her to do because she did not know how but that, "I want to learn if you want to teach me." Defendant picked up the note on the following day, February 7, 1986, on which the climactic events took place.

Shortly after defendant picked up B.M.'s second note, he telephoned her. This was about 10:00 a.m. In that call, which was also taped, defendant repeated his sexual desires at great length. B.M., coached by the police, invited him to come to her home as she was then alone. He questioned her carefully to be sure she had not told anyone about their communications and to be sure that everyone else was out of the house. He then told her that he would be there in several minutes, would park his truck so that it could not be seen, and would enter the house through the back door which she should unlock for him. He also told her that he would be carrying a box in order to appear to be making a delivery in the event he were seen. He ended the conversation with more of his erotic talk, telling B.M. to wait for him in the living room. He arrived fifteen minutes later, carrying an empty shoe box. He entered the house by way of the unlocked door and was arrested in the hallway between the kitchen and living room by the waiting police. He had B.M.'s two notes on his person. He was charged by the grand jury with the crimes of which he was convicted.

[State v. Riley, supra, No. A-1009-86T4 (slip op. at 2-3).]

Following our remand, defendant was resentenced on the attempted sexual assault to the term originally imposed on the attempted aggravated sexual assault. On appeal, we concluded that the Law Division had mistakenly exercised its sentencing discretion by considering inapplicable aggravating factors, and therefore again remanded for resentencing. State v. Riley, No. A-0171-88T4 (App. Div. Jan. 16, 1991). Again the Law Division imposed the same sentence, this time reciting aggravating factors consistent with our opinion and considering the mitigating factors urged by defendant. Again defendant appealed. We considered this third appeal on our Excessive Sentence Oral Argument calendar pursuant to R. 2:9-11. We affirmed. State v. Riley, No. A-0455-91T4 (App. Div. Mar. 23, 1992).

Apart from these direct appeals, defendant has pursued numerous collateral attacks on his 1986 conviction in both federal and state courts. As to the former, defendant filed a habeas corpus petition in 1988 that was denied, as were all subsequent appeals and applications for reconsideration thereof. In 1994, a second petition for a writ of habeas corpus was dismissed by the federal district court, citing "abuse of writ" and lack of jurisdiction. Thereafter, motions for reconsideration and appeals were consistently denied, including the denial of three petitions for writ of certiorari by the United States Supreme Court in 1994, 2001 and 2006. Riley v. New Jersey, 127 S. Ct. 514, 166 L. Ed.2d 383 (2006); Riley v. New Jersey, 534 U.S. 925, 122 S. Ct. 281, 151 L. Ed.2d 206 (2001); Riley v. New Jersey, 513 U.S. 906, 115 S. Ct. 271, 130 L. Ed.2d 189 (1994).

In February 1989, the United States District Court for the District of New Jersey, after reviewing the constitutionality of defendant's indictment upon defendant's challenge that it "lacked the 'critical facts' and 'essential elements' necessary for him to adequately prepare his defense[,]" concluded that the indictment was constitutional and stated:

The indictment recites the place where the crimes were committed and the timing thereof. The victim has been identified, including her age. [Defendant's] conduct is described in clear terms - "sexual penetration," "sexual conduct which would impair or debauch the morals of a child", "sexual contact". The indictment contains the elements of the various offenses and it is clear that it reasonably apprised [defendant] of the nature of the charges against him.

[Riley v. Schiedemental, No. 88-3956 (D. N.J. Feb. 16, 1989).]

In State court, prior to the instant application, defendant filed four unsuccessful PCR petitions since he was first convicted in 1986. In his first application dated February 27, 1991, defendant asserted that his conviction under count three of the indictment was invalid under State v. Schenk, 186 N.J. Super. 236 (Law Div. 1982), certif. denied, 101 N.J. 298 (1985). This petition was denied by the Law Division on November 21, 1991; affirmed by this court, State v. Riley, No. A-2429-91T4 (App. Div. Oct. 21, 1993) (slip op. at 1).); and denied certification by the Supreme Court on January 25, 1994.

Defendant's second PCR petition, dated January 5, 1996, argued that defendant's conduct did not constitute a "substantial step" towards sexual contact with B.M., thereby failing to state an offense which amounted to a nonwaivable jurisdictional defect. Defendant's second PCR was denied by the Law Division on August 16, 1996; affirmed by this court on April 22, 1997; and denied certification by the Supreme Court on September 23, 1997.

Defendant's third PCR petition, dated January 27, 1998, contended that his conviction under count three was illegal pursuant to State v. Cuni, 303 N.J. Super. 584 (App. Div. 1997), aff'd, 159 N.J. 584 (1999). The petition was denied by the Law Division on April 13, 1998; affirmed by this court on October 11, 2000; and denied certification by the Supreme Court on January 23, 2001.

Defendant's fourth PCR petition, filed April 15, 2002, proffered that his conviction under count three was constitutionally defective for failure to state a claim under N.J.S.A. 2C:5-1 and 2C:14-2(b). In addition, defendant alleged that the substantive elements of the offense were not sufficiently alleged in the indictment. Defendant's fourth PCR was denied by the Law Division on April 2, 2004.

In an order dated August 5, 2005, we referred defendant's appeal of the order denying his fourth PCR petition to the Public Defender's Office since the Public Defender represented him on that application and there was another pending appeal on the same indictment. However, in an order dated October 13, 2004, we relieved the attorney of record and permitted defendant to prosecute the appeal pro se. On the same date, defendant filed a motion for waiver of counsel hearing, but it was later withdrawn. In an order dated November 22, 2004, on remand from the Appellate Division, the Law Division submitted that defendant's motion to prosecute his appeal pro se be withdrawn and the matter be returned to the Appellate Division. We affirmed in State v. Riley, Nos. A-5971-03T4, A-5912-03T4 (App. Div. Jan. 30, 2006) (slip op. at 4), and the Court denied certification on April 4, 2006 in State v. Riley, 186 N.J. 604 (2006).

Defendant's fifth and current PCR petition, filed February 9, 2007, argued that his sentence is illegal and the indictment should be dismissed, pursuant to N.J. Const. art. I,