STATE OF NEW JERSEY VS. JONATHAN F. RAMOS-PIEDRAHITA(13-12-1002, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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:
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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
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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:
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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.
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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.
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