STATE OF NEW JERSEY VS. JONATHAN F. RAMOS-PIEDRAHITA(13-12-1002, UNION COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 18, 2017
• Docket: A-5384-14T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3584-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD GREEN,

Defendant-Appellant. ___________________________________

Submitted November 29, 2016 – Decided March 17, 2017

Before Judges Fisher and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-01-0228.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Leonard Victor Jones, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Richard Green appeals from the Law Division's order

denying, without an evidentiary hearing, his petition for post- conviction relief (PCR). Defendant was convicted, after a jury

trial, of felony murder, N.J.S.A. 2C:11-3(a)(3), second-degree

armed robbery, N.J.S.A. 2C:15-1(a)(1), second-degree possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and

third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).

We affirmed, except to remand to correct the judgment of

conviction, and the Supreme Court denied certification. State v.

Green, No. A-0680-09 (App. Div. June 27, 2012), certif. denied,

213 N.J. 568 (2013).

We reviewed the facts in our prior opinion. State v. Green,

supra, slip op. at 2-5. Suffice it to say here that defendant and

his friend Tony Keets set out to rob Manuel Perez at gunpoint.

Defendant stated in a Mirandized statement the State offered at

trial that Keets accidentally shot Perez after defendant struck

Perez in the back of the head and propelled him into Keets. Several

witnesses testified they saw or heard defendant or Keets before

or after the shooting. Defendant did not testify or call any

witnesses. His attorney argued that the police coerced his

confession and that defendant did not rob Perez because he was

merely collecting money owed to him.

In his amended PCR petition, defendant raised four grounds

for relief:

2 A-3584-14T2 Point I: Trial Counsel Failed To Adequately Confer With Petitioner About Defense Strategy; As a Result, Exculpatory Testimony Was Not Produced And State Witnesses Were Not Properly Cross-Examined.

Point II: Trial Counsel Failed To Effectively Present Petitioner's Defense, Which Was That He Did Not Confess To Aiding And Abetting A Robbery, That The Statement Was Actually An Agreement For Petitioner's Cooperation In The Murder Investigation, And That There Was No Proof Of A Robbery To Support A Felony Murder Charge.

Point III: Charging Petitioner As An Accomplice To A Principal (Keets) In A Felony Murder Who Was Never Charged Was Grossly Unfair And Denied Petitioner Equal Protection Of The Law.

Point IV: Mr. Green Has Demonstrated By A Preponderance Of The Evidence His Right To A Vacation Of The Guilty Verdict And Sentence; At A Minimum, He Has Made A Case For An Evidentiary Hearing To Resolve The Issues Of Ineffective Assistance Of Counsel And Denial Of Due Process Of Law.

In a pro se submission, which is not included in the record

before us, defendant apparently added that trial counsel failed

to call a specific witness, Joanna Soler, with allegedly helpful

testimony. He also argued that the State's theory of the case was

not supported by the crime scene; instead it relied on defendant's

own statement, which he contended was untrue.

Judge Stuart Peim, who presided over the trial, denied

defendant's petition in a thorough written opinion. The trial

3 A-3584-14T2 court applied the well-settled two-prong test for determining

ineffective assistance of counsel. See Strickland v. Washington,

466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064-65, 2068, 80 L.

Ed. 2d 674, 693-94, 698 (1984); State v. Fritz, 105 N.J. 42, 57-

58 (1987).

The judge focused on specific arguments defendant apparently

made in his pro se submissions as well as those made in his

counseled brief. Judge Peim noted that Soler had given conflicting

statements to police, she was unavailable to testify at trial, and

defendant failed to set forth what Soler's testimony would have

been. Thus, defendant did not establish that counsel was

ineffective because counsel failed to call her. The court also

rejected defendant's contention that trial counsel was ineffective

by failing to follow suggestions for cross-examining a detective

who took defendant's statement. The court concluded, contrary to

defendant's assertion, that defense counsel aggressively and

thoroughly cross-examined the detective based on alleged

inconsistencies between his grand jury and trial testimony. The

court further noted that defendant failed to specify any other

inconsistency that would have changed the case's outcome if it had

been probed.

On appeal, defendant has pared down his previous arguments

to a single issue:

4 A-3584-14T2 THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO CONSULT ADEQUATELY WITH HIM.

Defendant contends the PCR court focused unduly on the decision

not to call Soler and trial counsel's cross-examination of the

detective. He argues the PCR misconstrued the thrust of

defendant's claim, which was that defense counsel failed to confer

adequately with him regarding what he contends was a complex case.

Defendant's argument lacks merit. As the trial court did not

conduct an evidentiary hearing, "we may exercise de novo review

over the factual inferences the trial court has drawn from the

documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373

(App. Div. 2014) (citing State v. Harris, 181 N.J. 391, 420-21

(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.

2d 898 (2005)). We also review issues of law de novo. Harris,

supra, 181 N.J. at 419.

We recognize that adequate preparation is the hallmark of

effective counsel. "[C]ounsel has a duty to make 'reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary.' A failure to do so will

render the lawyer's performance deficient." State v. Savage, 120

N.J. 594, 618 (1990) (internal citation omitted) (quoting

Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed.

5 A-3584-14T2 2d at 695). However, "a petitioner must do more than make bald

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

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif.

denied, 162 N.J. 199 (1999). "[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." Ibid. A

court need not hold a hearing if "the defendant's allegations are

too vague, conclusory, or speculative to warrant" one. State v.

Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct.

140, 139 L. Ed. 2d 88 (1997); see also R. 3:22-10(e)(2).

Defendant has provided no competent evidence of how many

times he met with his trial counsel, what they talked about, or

what trial counsel would have done had he conferred more frequently

or at greater length. In short, defendant offers only a bald

assertion of ineffectiveness.

Affirmed.

6 A-3584-14T2