STATE OF NEW JERSEY VS. ERIC CLEMENTE RANGEL (07-12-1534, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-4781-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIC CLEMENTE RANGEL,
a/k/a HUGO OLIVARES,
Defendant-Appellant.
_________________________
Submitted June 18, 2019 – Decided July 12, 2019
Before Judges Koblitz and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 07-12-1534.
Joseph E. Krakora, Public Defender, attorney for
appellant (Al Glimis, Designated Counsel, on the
brief).
Fredric M. Knapp, Morris County Prosecutor, attorney
for respondent (John K. McNamara, Jr., Chief Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant appeals from the January 10, 2018 order denying his motion
for post-conviction relief (PCR) after oral argument and without a plenary
hearing. Defendant, who was found by police brutally sexually assaulting a high
school senior in April 2007, and subsequently convicted at trial, claims his trial
counsel was ineffective for not providing him with copies of some of the
discovery, which he now says might have convinced him to accept the plea
agreement offered by the State. He also alleges trial counsel was ineffective by
failing to have the defense expert interview the victim. After reviewing the
record in light of the contentions advanced on appeal, we affirm.
Our Supreme Court reviewed in detail the strong evidence produced by
the State during trial. State v. Rangel, 213 N.J. 500, 503-04 (2013). After
significant appellate history, defendant remains convicted of second-degree
sexual assault, N.J.S.A. 2C:14-2(c)(1); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1); and fourth-degree obstruction of justice, N.J.S.A.
2C:29-1. He is serving an aggregate sentence of seventeen years in prison,
subject to the eighty-five percent parole disqualifier of the No Early Release
Act, N.J.S.A. 2C:43-7.2 (NERA), followed by three years of parole supervision.
Defendant raises the following issues on appeal:
POINT I: THE PCR COURT ABUSED ITS
DISCRETION BY DENYING DEFENDANT'S PCR
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PETITION AND REFUSING TO HOLD AN
EVIDENTIARY HEARING WHERE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE THAT HIS
TRIAL COUNSEL'S REPRESENTATION WAS
DEFICIENT UNDER STRICKLAND BECAUSE
COUNSEL FAILED TO PROVIDE PETITIONER
WITH DISCOVERY AND FAILED TO HAVE P.F.
INTERVIEWED BY THE DEFENSE EXPERT,
CAUSING PETITIONER TO NOT BE FULLY
INFORMED WHEN HE DECIDED TO PROCEED TO
TRIAL AND RESULTING IN PETITIONER'S
CONVICTIONS FOR MULTIPLE OFFENSES.
A. FAILURE TO PROVIDE DISCOVERY TO
DEFENDANT.
B. TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO HAVE P.F. INTERVIEWED BY DR.
VERDON.
Where the PCR court does not conduct an evidentiary hearing, we review
the PCR judge's determination de novo. State v. Jackson, 454 N.J. Super. 284,
291 (App. Div. 2018). A PCR petitioner carries the burden to establish the
grounds for relief by a preponderance of the credible evidence. State v.
Goodwin, 173 N.J. 583, 593 (2002). To sustain that burden, the petitioner must
allege and articulate 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).
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We apply the Strickland-Fritz1 standard to a defendant's claims of
ineffective assistance by both trial and appellate counsel. State v. Gaither, 396
N.J. Super. 508, 513 (App. Div. 2007). The defendant must demonstrate that
his counsel's representation "fell below an objective standard of
reasonableness," and "the defense was prejudiced by counsel's action or
inaction." Ibid. There must be a reasonable probability that without the
unprofessional errors the result would have been different. Id. at 514; see also
State v Chew, 179 N.J. 186, 203-04 (2004).
"In order for a claim of ineffective assistance of counsel to entitle a PCR
petitioner to an evidentiary hearing, 'bald assertions' are not enough -- rather,
the defendant 'must allege facts sufficient to demonstrate counsel's alleged
substandard performance.'" State v. Jones, 219 N.J. 298, 311-12 (2014) (quoting
State v. Porter, 216 N.J. 343, 355 (2013)).
Defendant claims that had his attorney furnished him with a complete
copy of discovery prior to trial, he would have accepted the State's pre-trial offer
of a maximum exposure of nine years in prison with NERA in exchange for a
guilty plea. Defendant alleged through counsel at the PCR hearing that, prior to
1
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Fritz, 105
N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).
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trial, he did not receive a copy of the 9-1-1 tape of the victim's call to the police
or the grand jury transcript, nor see the victim's clothes or photographs of her
taken after the assault. He did not deny knowing about the existence of these
pieces of evidence, which were discussed at pretrial hearings. He also did not
deny receiving all other discovery, including the police reports and medical
records of the victim, whose nose was broken during the assault. Defendant's
"bald assertion" that possession of those pieces of evidence would have
convinced him to plead guilty, when he was well aware that the police pulled
him off the victim after she called them to the scene, is unconvincing and does
not necessitate an evidentiary hearing. See Jones, 219 N.J. at 311-12.
Defendant's other claim, that his expert witness should have interviewed
the victim, is speculative. The victim was attacked as she was returning from a
birthday party. Her urine tested positive for alcohol and cannabis metabolites
at the hospital. Dr. Verdon, the defense expert witness, testified only at a Rule
104 hearing. He testified that the cannabis metabolites in the victim's urine
could indicate that she was unable to accurately perceive and recall the assault,
depending on when she ingested the cannabis. The trial judge admitted the
evidence through medical personnel that the victim tested positive for alcohol,
but not the cannabis evidence. This pre-trial evidentiary ruling was not raised
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as an issue on direct appeal. See R. 3:22-4 (barring any ground for post-
conviction relief "not raised . . . in any appeal" unless the issue "could not have
reasonably have been raised," preclusion "would result in fundamental
injustice," or "denial of relief would be contrary to a new rule of constitutional
law"). The victim told medical personnel she had been drinking, so her
impairment was not contested. At trial, defense counsel cross-examined her
extensively about this issue as well as conflicts in her prior statements.
No certification from the expert or the victim was proffered by defendant
at the PCR hearing. Defendant speculated that had the expert been permitted to
interview the victim, the expert would have determined when she ingested
cannabis, and would have been allowed to so testify, which then would have
caused the jury to reach a different verdict. The jury knew the victim had been
drinking at a party. Given the overwhelming evidence of defendant's guilt, and
the speculative nature of the cannabis evidence, we see no need for a hearing as
to this claim.
The PCR judge properly dismissed defendant's claims of ineffective
assistance of counsel as "bald assertions" absent any basis in logic or fact.
Affirmed.
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