STATE OF NEW JERSEY VS. RAMON RIVERA-FIGUEROA (12-05-0856, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3649-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAMON RIVERA-FIGUEROA,
Defendant-Appellant.
_______________________________
Submitted October 10, 2017 - Decided November 9, 2017
Before Judges Messano and Accurso.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 12-05-0856.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County
Prosecutor, attorney for respondent (Joie
Piderit, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant Ramon Rivera-Figueroa appeals from the denial of
his petition for post-conviction relief (PCR), contending he
established a prima facie case of ineffective assistance of
counsel requiring an evidentiary hearing. Because the trial
judge correctly determined the evidence insufficient to sustain
defendant's burden, we affirm.
Following a robbery committed with a co-defendant in which
the victim was struck in the head with a gun and stabbed several
times with a screwdriver, a grand jury indicted defendant on
charges of first-degree robbery, N.J.S.A. 2C:15-1; second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A.
2C:58-4; second-degree possession of a weapon for unlawful
purposes, N.J.S.A. 2C:39-4a; fourth-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5d; third-degree possession of a
weapon for unlawful purposes, N.J.S.A. 2C:39-4d; second-degree
aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree
aggravated assault, N.J.S.A. 2C:12-1b(4); third-degree
aggravated assault, N.J.S.A. 2C:12-1b(2); fourth-degree
prohibited devices, N.J.S.A. 2C:39-3f; second-degree conspiracy,
N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; and third-degree
possession of a controlled dangerous substance, N.J.S.A. 2C:35-
10a(1).
Defendant pled guilty to first-degree robbery in exchange
for the State's agreement to recommend a sentence in the second-
degree range, subject to the periods of parole ineligibility and
supervision required by the No Early Release Act (NERA),
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N.J.S.A. 2C:43-7.2, and to dismiss the remaining charges. Judge
Pincus took defendant's plea and subsequently sentenced him to a
seven-year NERA term. Defendant appealed his sentence, which we
reviewed on a sentencing calendar, R. 2:9-11, and affirmed.
In his petition for post-conviction relief, defendant
claimed his plea counsel misled him as to his sentence exposure
by telling him "because of [his] lack of a prior record and
because of the four young children that [he] support[ed], that
the mitigating factors would be found in [his] favor," and he
"would be receiving a five year state prison sentence." Based
on his counsel's advice, defendant claimed he understood his
"open" plea would "allow the Judge to sentence [him] to five
years in prison, despite the State's objection." He further
claimed his counsel was ineffective for failing to investigate
and consider all defenses and by failing to argue all mitigating
factors at sentencing.
After hearing argument by assigned counsel, Judge Pincus
issued a comprehensive written opinion denying the petition on
the basis that defendant had failed to establish a prima facie
claim for relief. State v. Preciose, 129 N.J. 451, 462-64
(1992). The judge noted defendant had represented at the plea
hearing that he understood the plea agreement and the
consequences of his "open" plea. She nevertheless reviewed the
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plea forms with defendant and advised him that he "would be
sentenced in the second-degree range of five to ten years
subject to NERA instead of facing the maximum sentence of twenty
years subject to NERA for a first-degree charge." She found "no
suggestion by Petitioner that he expected to receive a sentence
of only five years subject to NERA" and "nothing to suggest that
trial counsel did not properly advise Petitioner of the plea
agreement and potential sentencing consequences as a result of
the plea agreement."
As to defendant's claim that his counsel failed to argue
all mitigating factors, the court found trial counsel "strongly
advocated for mitigating factors" and submitted "a detailed
sentencing memorandum . . . in which [he] argued for the lowest
sentence available in the second-degree range, five years
subject to NERA." The judge made clear she would not have found
the mitigating factors defendant claimed his trial counsel
should have argued, and she dismissed his claim that counsel had
failed to investigate defenses as a bald assertion unsupported
by any certification attesting to the facts such investigation
would have revealed. See State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999), certif. denied, 162 N.J. 199 (1999);
see also State v. Jones, 219 N.J. 298, 311-12 (2014).
On appeal, defendant presents the following arguments:
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POINT I.
THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED AND THE MATTER REMANDED
FOR AN EVIDENTIARY HEARING BECAUSE THE PCR
COURT'S FINDINGS, WHICH WERE BASED ON THE
PLEA VOIR DIRE, THE PRESUMPTION OF TRIAL
COUNSEL COMPETENCY, AND THE FAVORABLE PLEA
BARGAIN, WERE INCONSISTENT WITH PRIMA FACIE
INEFFECTIVE ASSISTANCE OF COUNSEL STANDARDS.
POINT II.
THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED BECAUSE IT VIOLATED
DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.
We reject those arguments as without sufficient merit to
warrant discussion in a written opinion, R. 2:11-3(e)(2), and
affirm the denial of defendant's petition substantially for the
reasons set forth in Judge Pincus's February 19, 2016 cogent and
well-reasoned written opinion.
Affirmed.
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