Opinion
DOCKET NO. A-2635-14T1
06-22-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL J. RAMSEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (James L. McConnell, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-10-0853. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (James L. McConnell, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Michael J. Ramsey appeals from the September 26, 2014 Law Division order, which denied his petition for post-conviction relief (PCR) grounded on the ineffective assistance of counsel (IAC). For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.
Following a jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2), and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). At sentencing, the trial judge imposed a term of life imprisonment with thirty years of parole ineligibility.
Defendant appealed his conviction and sentence. We affirmed the conviction, but remanded to correct the period of parole ineligibility in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. State v. Ramsey, 415 N.J. Super. 257, 272 (App. Div. 2010). Our Supreme Court denied certification. 205 N.J. 77 (2011). On February 25, 2011, the judge resentenced defendant to life imprisonment subject to an eighty-five percent period of parole ineligible pursuant to NERA, or approximately sixty years of parole ineligibility instead of thirty.
On April 4, 2011, defendant filed a PCR petition, initially arguing that trial counsel rendered ineffective assistance by failing to: (1) investigate, prepare and present an alibi defense at trial; (2) file any pre-trial identification motions when witnesses identified someone other than defendant as the shooter; (3) object to the State's error when it introduced a misleading photograph during trial of defendant from another prior arrest to resemble clothing in the description; (4) investigate or hire experts to explain the make and model of the car; and (5) alert the court of or use defendant's mental history in his defense. Defendant later added that trial counsel rendered ineffective assistance during plea negotiations by misadvising him that his maximum sentence on the murder charge would be life imprisonment with a maximum thirty-year period of parole ineligibility, and misadvising him about the deportation consequences of a guilty plea.
On July 15 and 16, 2014, the PCR judge held an evidentiary hearing only on defendant's added claim of IAC during plea negotiations. The State conceded that during plea negotiations, the trial judge, defense counsel, and the prosecutor all mistakenly believed that defendant only faced a thirty-year period of parole ineligibility on the murder charge. There was conflicting testimony as to defendant's immigration status and why he opted to go to trial. On July 15, defendant testified that he believed he was a United States citizen, but was advised after his arrest that he had an immigration detainer. He said he considered a plea deal, but opted for trial after trial counsel advised him that he would be deported if he pled guilty. Defendant later testified that he opted for trial to prove his innocence. He also testified that after sentencing, he received information from United States Immigration and Custom Enforcement that suggested he was a United States citizen, and thus, counsel misadvised him of the deportation consequences of a guilty plea.
On July 15, trial counsel confirmed that he advised defendant he would be deported if he pled guilty. Counsel also testified that deportation was not the issue and defendant maintained his innocence and opted for trial. On July 16, however, counsel testified that although defendant maintained his innocence,
[i]t was more of that ambiguity that you sometimes have where they won't say that they did it, but they leave it open enough so that you get the impression that if the offer was right, maybe they would say that they did it to put a plea through.
So, yes, his position always would be that, you know, I didn't do this, but he would entertain some interest in what the offer was. Obviously, if he said, you know, "I would take a 15" — and I usually made it clear that you would have to say you're guilty to take any deal.
So, the answer was, his official position was always that, no, I didn't do it, but he would listen to offers. So I guess that's the best way to say it.
The PCR judge never rendered an opinion. Instead, a different judge rendered a written opinion on July 15, 2014, based on his "careful review of the record and oral testimony presented by counsel on July 15, 2014." The judge made factual findings as to each of defendant's five initial claims of IAC and concluded they were "merely bald assertions, none of which would have had an impact on the result of the trial"
Relying on State v. Taccetta, 200 N.J. 183 (2009), the judge concluded there was no Strickland prejudice because defendant professed his innocence. The judge found that "[a] review of the present record and previous transcripts reveals that [defendant] did profess his innocence[;]" however, the judge did not specify where this appeared in the record or what transcripts he reviewed. Nor did the judge address the ambiguous testimony about defendant's claim of innocence and made no factual findings on defendant's claims that trial counsel misadvised him about the period of parole ineligibility and deportation consequences of a guilty plea. This appeal followed.
On appeal, defendant raises the following contentions:
The [c]ourt should reverse the trial court's denial of defendant's petition for post-conviction relief.
A. The denial of defendant's PCR claims was improper because the judge who heard the witnesses and evidence at the evidentiary hearing [] did not render the decision.
B. Defendant established ineffective assistance of counsel in the court below.
C. Remand is warranted for further consideration and an evidentiary hearing on defendant's [five initial] ineffective assistance of counsel claims raised in his petition for post-conviction relief.
To establish a prima facie claim of ineffective assistance of counsel, the defendant must show that: (1) counsel's performance was deficient; and (2) the deficiency prejudiced the defense. State v. Nash, 212 N.J. 518, 542 (2013); see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. State v. Fritz, 105 N.J. 42, 58 (1987). "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).
"[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. State v. Preciose, 129 N.J. 451, 462 (1992). However, the standard of review in PCR cases where the court held an evidentiary hearing is:
a deferential standard; [this court] will uphold the PCR court's findings that are supported by sufficient credible evidence in the record. Indeed, [a]n appellate court's reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he has observed firsthand. However, a PCR court's interpretation of the law is afforded no deference, and is reviewed de novo. [F]or mixed questions of law and fact, [an appellate court] give[s] deference . . . to the supported factual findings of the trial court, but review[s] de novo the lower court's application of any legal rules to such factual findings.
[State v. Pierre, 223 N.J. 560, 576-77 (2015) (citations omitted).]
We have considered defendant's contention in Argument C. in light of the record and applicable legal principals and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm on this issue substantially for the reasons expressed by the second judge in his July 15, 2014 written opinion.
We also find no merit in defendant's contention in Argument A., but reverse and remand as to his contention in Argument B. It is not improper for one judge to preside over a hearing and another judge to issue a decision, so long as the deciding judge "make[s] specific fact findings as required by Rule 1:7-4(a) and state[s] his or her conclusions of law." State v. Thompson, 405 N.J. Super. 163, 172 (App. Div. 2009), certif. denied, 209 N.J. 232 (2012). "Anything less is a disservice to the litigants, the attorneys, and the appellate court." Ibid. (citations omitted).
Although we take no issue with the second judge rendering an opinion, it appears that the judge did so on an incomplete record. The judge also did not address the ambiguous testimony about defendant's claim of innocence, and made no factual findings as to whether trial counsel was ineffective during plea negotiations and whether but for counsel's deficiencies, defendant would have pled guilty and suffered prejudice as a result of going to trial. Accordingly, we reverse on this issue and remand for the court to make the required factual findings based on the entire record.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION