Opinion
DOCKET NO. A-0382-10T2
02-13-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROY L. RAMBO, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip V. Lago, Designated Counsel, on the brief). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Tara Kirkendall, Assistant Prosecutor, of counsel and on the brief). Appellant filed pro se supplemental briefs.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Accurso.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 02-12-0472.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip V. Lago, Designated Counsel, on the brief).
Richard T. Burke, Warren County Prosecutor, attorney for respondent (Tara Kirkendall, Assistant Prosecutor, of counsel and on the brief).
Appellant filed pro se supplemental briefs. PER CURIAM
Defendant Roy L. Rambo, Jr. appeals from the August 10, 2010 Law Division order, which denied his petition for post-conviction relief (PCR). We affirm.
On August 16, 2002, defendant was charged with murdering his wife, and a related weapons offense. On August 23, 2002, the parties' only son filed a probate action in the Chancery Division, seeking to freeze his parents' assets pursuant to the so-called "Slayer Statute," N.J.S.A. 3B:7-1 to -7. In an August 28, 2002 order, the Chancery court granted the relief requested.
In 2002, the year the murder occurred, the Slayer Statute was codified under N.J.S.A. 3B:7-1. The Legislature repealed this version of the statute effective February 27, 2005, and replaced it with N.J.S.A. 3B:7-1.1.
Defendant subsequently filed a motion in the probate matter for an order permitting the release of funds that were rightly his to use to retain an attorney to represent him in the criminal matter. The Chancery court denied the motion. The court determined that Jacobson v. Jacobson, 151 N.J. Super. 62 (App. Div. 1997), on which defendant relied, did not apply because it pre-dated N.J.S.A. 3B:7-1. Citing to the statute and In re Estate of Karas, 192 N.J. Super. 107, 111-13 (Law Div. 1983), aff'd as modified, 197 N.J. Super. 642 (App. Div. 1984), certif. denied, 101 N.J. 228 (1985), the court reasoned that defendant would not be entitled to funds if convicted of intentionally killing his wife. The court determined that the right to retain counsel of choice was "not absolute and must give way . . . [to] the fair and proper administration of [the Slayer Statute]." The court concluded that all funds would be held in trust pending the outcome of the criminal matter. The court entered an order on November 7, 2003 memorializing its decision. Defendant appealed, but the appeal was dismissed for failure to prosecute.
On March 6, 2009, we denied defendant's motion to vacate the dismissal and reinstate the appeal.
Following a jury trial in the criminal matter, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), (2), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. On April 22, 2005, the court sentenced defendant to a forty-year term of imprisonment with thirty years of parole ineligibility. The court directed that the eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, would attach to the ten years remaining on defendant's sentence after he had served the initial thirty-year mandatory minimum term.
Defendant appealed his conviction and sentence. He asserted that the Chancery court's erroneous application of the Slayer Statute to freeze his assets deprived him of his federal and State constitutional rights to retain counsel of his choice. We declined to address this argument, finding the issue was not properly before us. State v. Rambo, 401 N.J. Super. 506, 520, 524 (App. Div.), certif. denied, 197 N.J. 258 (2008), cert. denied, 556 U.S. 1225, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009). We affirmed the conviction, but remanded for re-sentencing to apply NERA to the entire forty-year sentence. Id. at 527.
On March 30, 2009, defendant filed a pro se PCR petition. He argued that the Chancery court misinterpreted and wrongly applied the Slayer Statute and committed numerous other errors that deprived him of his federal and State constitutional rights to counsel of his choice; and the Slayer Act as applied to him violated his federal and State constitutional rights. He also argued that the appointed public defender who represented him pre-trial rendered ineffective assistance by failing to file a motion to transfer the probate matter to the Law Division, thus depriving him of his assets and right to use the assets to retain counsel of his choice. He also claimed that a defective verdict sheet denied him a fair trial.
Defendant represented himself during the trial.
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PCR counsel was subsequently appointed to represent defendant on the PCR petition. Counsel filed a brief, arguing the petition was not time-barred under Rule 3:22, and defendant provided prima facie proof of ineffective assistance of counsel warranting an evidentiary hearing.
On February 23, 2010, defendant filed a pro se motion for bail pending the outcome of his PCR petition, and a pro se motion to dismiss the indictment with prejudice based on the deprivation of his constitutional right to counsel of his choice. In an April 23, 2010 order and oral decision, the court denied the bail motion, concluding there was no authority permitting bail pending a PCR petition. The court also denied defendant's motion to dismiss the indictment, concluding defendant should have filed it pre-trial. The court also found there was no basis to dismiss the indictment.
The Chancery matter was still pending at the time defendant filed his PCR petition and motions in the criminal matter. On May 17, 2010, the Chancery court entered a final order, which ended the probate litigation. Defendant appealed. He asserted that the Slayer Statute was ambiguous; the Chancery court erroneously and unconstitutionally applied the statute by enjoining him from using his share of the marital assets; the Chancery court erred by failing to defer to the Law Division; and the Slayer Statute deprived him of his federal and State constitutional rights to counsel of his choice.
Two months later, in an August 10, 2010 order and written opinion on defendant's PCR petition, the criminal court concluded defendant's arguments relating to the Chancery court's decision were not properly before it. The court also determined that Rule 3:22-5 barred defendant's defective verdict sheet argument, which had been adjudicated on the merits in defendant's direct appeal.
Addressing defendant's ineffective assistance of counsel claim, the court found that because Rule 4:3-1(a)(2) required probate matters to be filed in the Chancery Division, a motion to transfer that matter to the Law Division would likely have been denied. The court also found that it lacked jurisdiction over the Chancery court's decision, and defendant's ineffective assistance claim based on that decision was premature. This appeal followed.
On appeal, appellate counsel raises the following arguments:
+-----------------------------------------------------------------------------+ ¦POINT ¦THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED ¦ ¦I ¦INEFFECTIVE ASSISTANCE OF PRE-TRIAL COUNSEL. ¦ +------+----------------------------------------------------------------------¦ ¦POINT ¦THE LOWER COURT ORDER MUST BE REVERSED SINCE THE INDICTMENT SHOULD ¦ ¦II ¦HAVE BEEN DISMISSED. ¦ +------+----------------------------------------------------------------------¦ ¦POINT ¦THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS. ¦ ¦III ¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦POINT¦THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE ¦ ¦IV ¦DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER [RULE] 3:22-5. ¦ +-----+-----------------------------------------------------------------------¦ ¦POINT¦THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN ¦ ¦V ¦EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE ¦ ¦ ¦REVERSED. ¦ +-----------------------------------------------------------------------------+ In a pro se supplemental brief, defendant raises the following arguments:
POINT I
THE PCR COURT ERRED BY DENYING [PCR] BECAUSE DR. RAMBO MADE A PRIMA FACIE SHOWING THAT THE CHANCERY COURT WRONGFULLY INFRINGED ON HIS RIGHT TO RETAIN CRIMINAL[]DEFENSE COUNSEL OF HIS CHOICE AS GUARANTEED BY THE [U.S. CONST., AMENDS. VI AND XIV; N.J. CONST., ART. 1, PARS. 1, 10.]
POINT II
THE PCR COURT FAILED TO PROPERLY APPLY THE AUTOMATIC "PRESUMPTION OF PREJUDICE" STANDARD LINKED TO A COUNSEL OF CHOICE VIOLATION; INSTEAD IT APPLIED THE SECOND PRONG OF THE INEFFECTIVE ASSISTANCE OF COUNSEL STA[N]DARD, WHICH REQUIRES THE DEFENDANT TO PROVE THE PREJUDICE.
POINT III
WHERE THE PCR COURT WAS PROVIDED WITH A COPY OF THE FINAL CHANCERY DECISION, AND ALSO WAS INFORMED THAT AN APPEAL FROM THAT ORDER HAD BEEN FILED, THE PCR COURT ERRED BY FINDING THAT THE CHANCERY MATTER HAD NOT BEEN FINALIZED. THEREFORE MATERIAL EVIDENCE SHOWING THAT DR. RAMBO HAD BEEN DEPRIVED OF SUFFICIENT ASSETS NEEDED TO EXERCISE HIS
SIXTH AMENDMENT RIGHT TO RETAIN COUNSEL OF HIS CHOOSING WAS NOT PROPERLY CONSIDERED.
POINT IV
THE PCR COURT ERRED BY ITS FAILURE TO FIND THAT DR. RAMBO WAS UNEQUIVOCALLY DENIED DUE PROCESS AND EQUAL PROTECTION UNDER THE LAW AS GUARANTEED BY THE [U.S. CONST., AMEND. XIV; N.J. CONST., ART. 1, PAR. 1.]
POINT V
THE PCR COURT IMPROPERLY APPLIED THE STANDARDS FOR [PCR], AND THEREBY DEPRIVED DR. RAMBO OF THE OPPORTUNITY TO COLLATERALLY ATTACK HIS CONVICTION.
POINT VI
THE PCR COURT ERRED BY FAILING TO ASSUME JURISDICTION OVER THE DEFENDANT'S ASSET ISSUES.
POINT VII
PCR COUNSEL, [], PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN THE PCR BRIEF BY:
A. MERELY LISTING THE GROUNDS RAISED IN THE DEFENDANT'S PRO SE VERIFIED PETITION;THIS DEFICIENT PERFORMANCE DOES NOT SATISFY THE CONDUCT REQUIRED BY [STATE v. RUE] FOR PCR COUNSEL, OR THE [STRICKLAND-FRITZ] STANDARDS FOR EFFECTIVE ASSISTANCE OF COUNSEL. FURTHERMORE, PCR COUNSEL'S DEFICIENT CONDUCT VIOLATED [RULE] 3:22-6(d), WHICH REQUIRES A REMAND AND ASSIGNMENT OF COMPETENT PCR COUNSEL BEFORE A DIFFERENT TRIAL COURT. (NOT RAISED BELOW).
B. COPYING A FEW PARAGRAPHS FROM THE PROCEDURAL HISTORY FROM THE DIRECT APPEAL BRIEFS;
C. "CUTTING AND PASTING" THREE BOILER [] PLATE POINT HEADINGS AND LEGAL ARGUMENT; AND/OR
D. CITING NO FACTS OR CASE LAW IN SUPPORT OF THE CLAIMS ADVANCED BY THE DEFENDANT.
POINT [VIII]
DR. RAMBO REITERATES ALL CONSTITUTIONAL CLAIMS ADVANCED IN COUNSEL'S BRIEF, IN THE PRO SE SUPPLEMENTAL BRIEF, IN THE MOTIONS TO DISMISS AND FOR NOMINAL BAIL, AND DURING ORAL ARGUMENTS OF THIS MATTER, AS IF SET FORTH HEREIN AT LENGTH.
POINT [IX]
THE WAIVER OF COUNSEL WAS NOT VOLUNTARY BECAUSE DR. RAMBO WAS FORCED TO FOREGO APPOINTED COUNSEL IN ORDER TO ASSERT HIS RIGHT TO COUNSEL OF HIS CHOICE.
POINT [X]
BECAUSE THE COUNSEL OF CHOICE CLAIM WILL LIKELY EMERGE FOR A THIRD TIME ON REMAND FOR A NEW TRIAL, THIS COURT SHOULD EXERCISE ORIGINAL JURISDICTION TO RESOLVE THE JURISDICTIONAL CONTROVERSY FOR APPLICATION OF THE SLAYER'S ACT. FURTHERMORE, IN THE INTEREST[] OF JUSTICE, FUNDAMENTAL FAIRNESS, AND TO PRESERVE JUDICIAL AND TAXPAYER RESOURCES, THIS COURT SHOULD CRAFT THE APPROPRIATE REMEDY AS A MATTER OF FIRST IMPRESSION IN THIS STATE. THE COURT SHOULD THEN ORDER THE TRIAL COURT TO IMMEDIATELY IMPLEMENT THOSE REMEDIES, INCLUDING DISMISSAL OF THE INDICTMENT WITH PREJUDICE AND/OR NOMINAL BAIL.
Following the filing of this appeal, on June 4, 2012, we rendered our opinion in defendant's appeal of the probate matter. In re Estate of Linda Ann Rambo, No. A-5308-09 (App. Div.), certif. denied, 212 N.J. 430 (2012). We affirmed substantially for the reasons expressed by the Chancery court. (slip op. at 9). We reasoned that "[a]s the Court made clear in Neiman v. Hurff, 11 N.J. 55, 60-62 (1952), the common law doctrine codified in [the Slayer Statute] is 'so essential to the observance of morality and justice [that it] has been universally recognized in the laws of civilized communities for centuries and is as old as equity.'" We concluded that defendant "was not denied competent counsel in his criminal case. To permit defendant to use the proceeds of the marital estate to pay the cost of private counsel would be a perversion of justice and in direct violation of the public policy expressed by the Legislature in N.J.S.A. 3B:7-5." (slip op. at 10-11). We also determined that defendant's remaining arguments, including those attacking the Chancery court's decision as a denial of his constitutional right to counsel of his choice, "lack[ed] sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E)." (slip op. at 11).
We decline to address defendant's arguments in this appeal relating to the Chancery court's decision. The Chancery court's decision is not properly before us, and defendant's argument relating to that decision were adjudicated on the merits in In re Estate of Linda Ann Rambo.
Nor will we address defendant's argument relating to the indictment and defective verdict sheet. Defendant should have raised these arguments on direct appeal. R. 3:22-4. In addition, defendant's challenge to the indictment was untimely, and he showed no defect in the indictment. R. 3:10-2(c) and (d); State v. Hogan, 144 N.J. 216, 228-29 (1996). Defendant also cites no authority permitting bail pending the outcome of a PCR petition. We, thus, limit our review to defendant's ineffective assistance of counsel claim.
A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel bears the heavy burden of proving (1) "'that counsel's performance was deficient[,]'" and (2) "'that the deficient performance prejudiced the defense[,]'" meaning "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Prejudice is shown by proof creating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Defendant cannot prove either prong of the Strickland test. This court has determined that defendant was not permitted to use the proceeds of the marital estate to pay the cost of private counsel in this matter. In re Estate of Linda Ann Rambo (slip op. at 10-11). Accordingly, we conclude that pretrial counsel was not ineffective for failing to file a motion to transfer the probate matter to the Law Division. Id. 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Worlock, 117 N.J. 596, 625 (1990) (holding that "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel").
We also conclude that defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comment.
PCR counsel did not render ineffective assistance by filing an insufficient PCR brief. Counsel was not required to advance arguments on claims raised by defendant that were clearly without merit. State v. Webster, 187 N.J. 254, 257 (2006); R. 3:22-6(d).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION