RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0115-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RIGOBERTO RAMIREZ, a/k/a RIGOBERTO RANIREZ,
Defendant-Appellant. ____________________________
Submitted October 22, 2019 – Decided November 6, 2019
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-06-0946.
Joseph A. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).
Mark Musella, Bergen County Prosecutor, attorney for respondent (Nicole Paton, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Rigoberto Ramirez, a/k/a Ranirez Rigoberto, appeals from the
June 20, 2018 Law Division order denying his petition for post-conviction relief
(PCR) without an evidentiary hearing. We affirm.
I.
We derive the following facts from the record. Sometime between June
1, 2012, and August 28, 2012, defendant performed an act of sexual penetration
with a boy under the age of thirteen by putting his penis in the child's mouth for
defendant's sexual gratification. On August 28, 2012, defendant touched the
penis of a boy under the age of thirteen with the purpose to humiliate and
degrade the boy.
A Bergen County Grand Jury charged defendant in Superseding
Indictment No. 13-06-0946-I with three counts of second-degree sexual assault,
contrary to N.J.S.A. 2C:14-2(b) (counts one, two, and six); three counts of first-
degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1) (counts
three, four, and five); third-degree endangering the welfare of a child, contrary
to N.J.S.A. 2C:24-4(a) (count seven); fourth-degree endangering the welfare of
a child, contrary to N.J.S.A. 2C:24-4(a) (count eight); and fourth-degree
possession of child pornography, contrary to N.J.S.A. 2C:24-4(b)(5)(b) (count
nine).
A-0115-18T4 2 On January 27, 2014, defendant pled guilty to second-degree sexual
assault (count one), and first-degree aggravated sexual assault (count three).
Defendant was advised by the plea judge that he was required to undergo a
psychological evaluation. An Avenel evaluation dated June 4, 2014, determined
that defendant was a repetitive, compulsive sex offender.
In accordance with the plea agreement, on July 11, 2014, defendant was
sentenced to eight years of imprisonment at the Adult Diagnostic and Treatment
Center (ADTC), subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2, and a three-year period of parole ineligibility. Defendant was also subject
to Megan's Law, N.J.S.A. 2C:7-1, a Nicole's Law restraining order, N.J.S.A.
2C:44-8, Parole Supervision for Life (PSL), N.J.S.A. 2C:43-6.4, DNA testing,
fines, penalties, and restitution. Defendant did not file a direct appeal of his
conviction or sentence.
On August 30, 2017, defendant filed a pro se petition for PCR, arguing
his plea attorney and sentencing attorney both rendered ineffective assistance:
(1) by failing to argue that PSL is illegal because it violates the separation of
powers doctrine; (2) defense counsel did not warn defendant that Megan's Law
registration requirement starts anew upon the commission of any other crime,
and not just a sexual-related offense; (3) both counsel failed to advise defendant
A-0115-18T4 3 of his right to a plenary hearing to challenge the Avenel report; (4) both counsel
failed to disclose all of the conditions of mandatory PSL; and (5) his petition for
PCR was not barred under Rule 3:22-4.
The PCR court assigned counsel, who filed a supporting brief. PCR
counsel supplemented defendant's petition by arguing: (1) he was denied
effective assistance because at sentencing, his counsel failed to argue
aggravating and mitigating factors; (2) defendant was denied due process under
the Fifth and Fourteenth Amendments of the United States Constitution; and (3)
defendant was entitled to an evidentiary hearing.
Despite what was placed on the record, defendant argued he was not
advised he could challenge the ADTC findings, confront witnesses, or present
rebuttal evidence. Oral argument was conducted by the PCR judge on May 24,
2018, and an order denying PCR was entered on June 20, 2018.
The PCR court rejected defendant's arguments and found that prior to
establishing the factual basis of the plea, defendant was informed he had to
undergo a psychological evaluation "to determine whether his conduct was
characterized by a pattern of repetitive and compulsive behavior." Defendant
was told by the plea judge that he could challenge the findings made by the
Department of Corrections (DOC) if he was found to be a "repetitive and
A-0115-18T4 4 compulsive" offender, as indicated on the supplemental plea form. Question
four stated: "Do you understand you will be able to challenge the findings of the
DOC in a hearing and at that hearing you will have the right to confront the
witnesses against you and to cross-examine them and then present evidence on
your own behalf?" Defendant circled "Yes" next to the question on the form.
In his decision, the PCR court found the plea judge advised defendant that
if he was found to be repetitive and compulsive, he would be sentenced to the
ADTC, he would have to register with certain agencies, and he would be subject
to PSL. The PCR court found no basis to order an evidentiary hearing.
This appeal ensued, with defendant presenting the following argu ment:
POINT ONE
THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING BECAUSE TESTIMONY IS NEEDED REGARDING THE SUBSTANCE OF THE LEGAL ADVICE PLEA AND SENTENCE COUNSEL PROVIDED TO HIM REGARDING HIS ABILITY TO CHALLENGE THE FINDINGS AND CONCLUSIONS OF THE ADTC EVALUATION.
Following review of this argument, in light of the record and applicable
law, we affirm.
A-0115-18T4 5 II.
"A petitioner must establish the right to [post-conviction] relief by a
preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459
(1992). To sustain that burden, the petitioner must set forth specific facts that
"provide the court with an adequate basis on which to rest its decision." State
v. Mitchell, 126 N.J. 565, 579 (1992).
A defendant must prove two elements to establish a PCR claim that trial
counsel was constitutionally ineffective: first, that "counsel's performance was
deficient[,]" that is, "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment";
second, that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 687, 696 (1984); accord State v. Fritz,
105 N.J. 42, 52, 60-161 (1987). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." State v. Harris, 181 N.J.
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RECORD IMPOUNDED
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-0115-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RIGOBERTO RAMIREZ, a/k/a RIGOBERTO RANIREZ,
Defendant-Appellant. ____________________________
Submitted October 22, 2019 – Decided November 6, 2019
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-06-0946.
Joseph A. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).
Mark Musella, Bergen County Prosecutor, attorney for respondent (Nicole Paton, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Rigoberto Ramirez, a/k/a Ranirez Rigoberto, appeals from the
June 20, 2018 Law Division order denying his petition for post-conviction relief
(PCR) without an evidentiary hearing. We affirm.
I.
We derive the following facts from the record. Sometime between June
1, 2012, and August 28, 2012, defendant performed an act of sexual penetration
with a boy under the age of thirteen by putting his penis in the child's mouth for
defendant's sexual gratification. On August 28, 2012, defendant touched the
penis of a boy under the age of thirteen with the purpose to humiliate and
degrade the boy.
A Bergen County Grand Jury charged defendant in Superseding
Indictment No. 13-06-0946-I with three counts of second-degree sexual assault,
contrary to N.J.S.A. 2C:14-2(b) (counts one, two, and six); three counts of first-
degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1) (counts
three, four, and five); third-degree endangering the welfare of a child, contrary
to N.J.S.A. 2C:24-4(a) (count seven); fourth-degree endangering the welfare of
a child, contrary to N.J.S.A. 2C:24-4(a) (count eight); and fourth-degree
possession of child pornography, contrary to N.J.S.A. 2C:24-4(b)(5)(b) (count
nine).
A-0115-18T4 2 On January 27, 2014, defendant pled guilty to second-degree sexual
assault (count one), and first-degree aggravated sexual assault (count three).
Defendant was advised by the plea judge that he was required to undergo a
psychological evaluation. An Avenel evaluation dated June 4, 2014, determined
that defendant was a repetitive, compulsive sex offender.
In accordance with the plea agreement, on July 11, 2014, defendant was
sentenced to eight years of imprisonment at the Adult Diagnostic and Treatment
Center (ADTC), subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2, and a three-year period of parole ineligibility. Defendant was also subject
to Megan's Law, N.J.S.A. 2C:7-1, a Nicole's Law restraining order, N.J.S.A.
2C:44-8, Parole Supervision for Life (PSL), N.J.S.A. 2C:43-6.4, DNA testing,
fines, penalties, and restitution. Defendant did not file a direct appeal of his
conviction or sentence.
On August 30, 2017, defendant filed a pro se petition for PCR, arguing
his plea attorney and sentencing attorney both rendered ineffective assistance:
(1) by failing to argue that PSL is illegal because it violates the separation of
powers doctrine; (2) defense counsel did not warn defendant that Megan's Law
registration requirement starts anew upon the commission of any other crime,
and not just a sexual-related offense; (3) both counsel failed to advise defendant
A-0115-18T4 3 of his right to a plenary hearing to challenge the Avenel report; (4) both counsel
failed to disclose all of the conditions of mandatory PSL; and (5) his petition for
PCR was not barred under Rule 3:22-4.
The PCR court assigned counsel, who filed a supporting brief. PCR
counsel supplemented defendant's petition by arguing: (1) he was denied
effective assistance because at sentencing, his counsel failed to argue
aggravating and mitigating factors; (2) defendant was denied due process under
the Fifth and Fourteenth Amendments of the United States Constitution; and (3)
defendant was entitled to an evidentiary hearing.
Despite what was placed on the record, defendant argued he was not
advised he could challenge the ADTC findings, confront witnesses, or present
rebuttal evidence. Oral argument was conducted by the PCR judge on May 24,
2018, and an order denying PCR was entered on June 20, 2018.
The PCR court rejected defendant's arguments and found that prior to
establishing the factual basis of the plea, defendant was informed he had to
undergo a psychological evaluation "to determine whether his conduct was
characterized by a pattern of repetitive and compulsive behavior." Defendant
was told by the plea judge that he could challenge the findings made by the
Department of Corrections (DOC) if he was found to be a "repetitive and
A-0115-18T4 4 compulsive" offender, as indicated on the supplemental plea form. Question
four stated: "Do you understand you will be able to challenge the findings of the
DOC in a hearing and at that hearing you will have the right to confront the
witnesses against you and to cross-examine them and then present evidence on
your own behalf?" Defendant circled "Yes" next to the question on the form.
In his decision, the PCR court found the plea judge advised defendant that
if he was found to be repetitive and compulsive, he would be sentenced to the
ADTC, he would have to register with certain agencies, and he would be subject
to PSL. The PCR court found no basis to order an evidentiary hearing.
This appeal ensued, with defendant presenting the following argu ment:
POINT ONE
THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING BECAUSE TESTIMONY IS NEEDED REGARDING THE SUBSTANCE OF THE LEGAL ADVICE PLEA AND SENTENCE COUNSEL PROVIDED TO HIM REGARDING HIS ABILITY TO CHALLENGE THE FINDINGS AND CONCLUSIONS OF THE ADTC EVALUATION.
Following review of this argument, in light of the record and applicable
law, we affirm.
A-0115-18T4 5 II.
"A petitioner must establish the right to [post-conviction] relief by a
preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459
(1992). To sustain that burden, the petitioner must set forth specific facts that
"provide the court with an adequate basis on which to rest its decision." State
v. Mitchell, 126 N.J. 565, 579 (1992).
A defendant must prove two elements to establish a PCR claim that trial
counsel was constitutionally ineffective: first, that "counsel's performance was
deficient[,]" that is, "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment";
second, that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 687, 696 (1984); accord State v. Fritz,
105 N.J. 42, 52, 60-161 (1987). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." State v. Harris, 181 N.J.
391, 432 (2004) (quoting Strickland, 466 U.S. at 694).
To prove the first element, a defendant must "overcome a strong
presumption that counsel exercised reasonable professional judgment and sound
trial strategy in fulfilling his responsibilities." State v. Nash, 212 N.J. 518, 542
A-0115-18T4 6 (2013) (internal quotation marks omitted) (quoting State v. Hess, 207 N.J. 123,
147 (2011)). To prove the second element, a defendant must demonstrate "how
specific errors of counsel undermined the reliability of the finding of guilt."
United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).
We defer to the motion judge's findings so long as they are "supported by
sufficient credible evidence in the record." Nash, 212 N.J. at 540; see State v.
Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed
only if they are so clearly mistaken that the interest of justice demand
intervention and correction.") (internal quotation marks and citation omitted).
Legal conclusions which flow from those facts, however, are reviewed de novo.
Nash, 212 N.J. at 540-41.
Turning to defendant's argument, he maintains his plea and sentence
counsel both failed to advise him he could challenge the findings and
conclusions of the ADTC evaluation. Here, the record belies defendant's
contentions. At the plea hearing, the judge questioned defendant as follows:
The Court: Do you understand you'll be able to challenge the [DOC's] findings and confront witnesses against you and cross-examine them and present evidence on your own behalf if you don't agree with their findings? Do you understand that?
[]Defendant: Yeah.
A-0115-18T4 7 As stated previously, defendant also affirmatively circled "yes" to
question four on the supplemental plea form confirming his understanding that
he could challenge the DOC findings. The issue was fully and properly
considered by the plea judge. We have no basis to intervene.
Equally unavailing is defendant's claim that his sentencing counsel did not
argue mitigating factors six, N.J.S.A. 2C:44-1(b)(6) (defendant has
compensated or will compensate the victim for his conduct for the damage or
injury that he sustained, or will participate in a program of community service);
nine, N.J.S.A. 2C:44-1(b)(9) (the character and attitude of the defendant indicate
he is unlikely to commit another offense); ten, N.J.S.A. 2C:44-1(b)(10)
(defendant is particularly likely to respond affirmatively to probationary
treatment); and twelve, N.J.S.A. 2C:44-1(b)(12) (the willingness of defendant
to cooperate with law enforcement authorities). The PCR court found
sentencing counsel argued mitigating factors six, seven 1 and ten, and the other
factors were inapplicable. We agree.
"[T]he failure to present mitigating evidence or argue for mitigating
factors" can be ineffective assistance of counsel where "mitigation evidence was
1 N.J.S.A. 2C:44-1(b)(7) (The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense.) A-0115-18T4 8 withheld from the sentencing court." Hess, 207 N.J. at 153-544. Here, however,
"[t]he record before us contains no indication of any similar withholding from
the trial court of information that could bear on the court's sentencing analysis."
State v. Friedman, 209 N.J. 102, 121 (2012). Defendant fails to identify rational
mitigating evidence that sentencing counsel should have advanced.
Sentencing counsel argued mitigating factors six, seven and ten weighed
in defendant's favor but the sentencing judge found only mitigating factor seven
applied in part because defendant was to pay restitution to the victim upon his
release.
Addressing mitigating factors ten and twelve, the PCR judge found the
factors "not applicable" because defendant pled guilty to second-degree sexual
assault and first-degree aggravated sexual assault, which carry sentences
ranging from five to ten years and ten to twenty years respectively. Defendant
was sentenced in the second-degree on both counts to eight years imprisonment
subject to NERA. As to mitigating factor twelve, defendant's acceptance of the
plea deal was not in cooperation with law enforcement and he did not identify
another perpetrator or assist in solving another crime under State v. Read, 397
N.J. Super. 598, 613 (App. Div. 2008). Therefore, he ruled there was no factual
basis to argue the two mitigating factors. Because defendant has not proffered
A-0115-18T4 9 any evidence to support any additional mitigating factors, he has not
demonstrated an entitlement to PCR relief.
III.
Defendant further argues the PCR judge abused his discretion by denying
an evidentiary hearing, asserting the existence of genuine issues of material fact.
PCR courts are not required to conduct evidentiary hearings unless the defendant
establishes a prima facie case and "there are material issues of disputed fact that
cannot be resolved by reference to the existing record . . . ." R. 3:22-10(b). "To
establish such a prima facie case, the defendant must demonstrate a reasonable
likelihood that his or her claim will ultimately succeed on the merits." State v.
Marshall, 148 N.J. 89, 158 (1997). Speculative assertions are insufficient to
establish a prima facie case of ineffective assistance of counsel. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
The record amply supports the PCR judge's findings and conclusions.
Defendant has not shown "there is 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. He was unable to demonstrate the required
prejudice. Having failed to establish a prima facie case, defendant was not
A-0115-18T4 10 entitled to an evidentiary hearing. Preciose, 129 N.J. at 462. Accordingly, the
PCR court did not abuse its discretion in denying an evidentiary hearing.
To the extent we have not addressed any arguments raised by plaintiff, we
have deemed such arguments lacking in sufficient merit to warrant comment in
a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-0115-18T4 11