State of New Jersey v. Ronald Rutan ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2659-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONALD RUTAN,
Defendant-Appellant.
Submitted November 7, 2024 – Decided November 26, 2024
Before Judges Rose and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
92-03-0447.
Jennifer N. Selletti, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on
the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Ian C. Kennedy, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Ronald Rutan appeals from the March 24, 2023 order of the
Law Division denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
I.
On New Year's Eve in 1991, defendant and his codefendant escaped
from a maximum-security prison in Connecticut. They committed a carjacking
outside the prison and fled, eventually hiding out in a hotel in Nanuet, New
York, a short distance from the New Jersey border. On January 7 and 9, 1992,
the pair crossed into Bergen County and committed several armed robberies.
Defendant was captured about a week later.
A grand jury indicted defendant, charging him with: (1) five counts of
first-degree robbery, N.J.S.A. 2C:15-1; (2) two counts of third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and (3)
two counts of fourth-degree possession of a knife under circumstances not
manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d). In March 1996, a
jury found defendant guilty on all counts in the indictment.
The trial court sentenced defendant to an extended term as a persistent
offender, N.J.S.A. 2C:44-3(a), for an armed robbery in Rutherford, and
imposed an aggregate one-hundred-year term of imprisonment with a forty-six-
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year period of parole ineligibility. The controlling sentences were a sixty -year
term of imprisonment with a twenty-six-year period of parole ineligibility for
the Rutherford armed robbery, a consecutive twenty-year term of
incarceration, with a ten-year period of parole ineligibility for an armed
robbery in Montvale, and a consecutive twenty-year term of incarceration,
with a ten-year period of parole ineligibility for an armed robbery in
Waldwick. Defendant's sentence was imposed consecutively to the sentence
he was serving in Connecticut when he escaped.
We affirmed defendant's convictions. State v. Rutan, No. A-5587-95
(App. Div. Apr. 23, 1998). However, we remanded for resentencing, directing
the trial court to explain its reasoning for imposing consecutive sentences on
the New Jersey convictions and to reduce the period of parole ineligibility on
the Rutherford armed robbery to twenty-five years. Id. slip op. at 15. The
Supreme Court denied defendant's petition for certification. State v. Rutan,
155 N.J. 587 (1998).
Resentencing did not take place until November 18, 2016, because
defendant was serving his Connecticut prison sentence. The court resentenced
defendant to a sixty-year term of incarceration with a twenty-five-year period
of parole ineligibility on the Rutherford armed robbery, consecutively to a
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fifteen-year sentence with a seven-year period of parole ineligibility on the
Waldwick armed robbery. The court ran the prison terms on the remaining
robbery counts concurrently to the sentence on the Rutherford armed robbery
and concurrently to each other. The court did not address the statutory
aggravating and mitigating factors, provide reasons for imposing an extended
term for the Rutherford armed robbery, or apply State v. Yarbough, 100 N.J.
627 (1985).
On October 30, 2018, we again remanded to the sentencing court to
provide a more detailed statement of reasons for the sentence, including
findings on the aggravating and mitigating factors, as well as reasons for
imposing an extended term. State v. Rutan, No. A-2784-17 (App. Div. Oct.
30, 2018).
On December 14, 2018, the court resentenced defendant. The court
imposed the same aggregate sentence that it imposed in 2016 and provided
more detailed findings with respect to the aggravating and mitigating factors
and its reasons for imposing an extended term for the Rutherford armed
robbery. The court again failed to apply Yarbough.
On October 23, 2019, we concluded the court did not provide adequate
findings to support imposition of consecutive terms. State v. Rutan, No. A-
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3172-18 (App. Div. Oct. 23, 2019). We therefore remanded the matter for
resentencing for the third time.
On January 22, 2020, the court again sentenced defendant to an
aggregate sixty-five-year term of incarceration with a twenty-seven-year
period of parole ineligibility. The court issued a detailed written opinion
setting forth its reasons for the sentence.
We affirmed defendant's sentence. State v. Rutan, No. A-4298-19 (App.
Div. Feb. 8, 2021). The Supreme Court denied defendant's petition for
certification. State v. Rutan, 248 N.J. 259 (2021).
On May 9, 2022, defendant filed a PCR petition. He argued his trial and
appellate counsel were ineffective because they failed to: (1) object to the
resentencing court's reliance on a presentencing report prepared by
Connecticut for his sentencing in that State; (2) argue in support of mitigating
factor ten, N.J.S.A. 2C:44-1(b)(10) ("[t]he defendant is particularly likely to
respond affirmatively to probationary treatment . . . ."), that defendant was
paroled by Connecticut during the eighteen-year period his resentencing was
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pending; and (3) argue that an updated New Jersey presentencing report be
prepared prior to his third resentencing. 1
On March 24, 2023, the PCR court issued an oral opinion denying
defendant's petition. 2 The PCR court found that defendant did not establish
counsel's failure to request an updated presentence report fell below an
objective standard of reasonableness, given that Rule 3:21-2 does not require a
new presentence report prior to resentencing. The PCR court noted that at the
third resentencing, the resentencing court stated defendant was being
considered as he "stood before the court" at that time. In addition, the PCR
court found that defendant failed to demonstrate an updated presentence report
would have materially changed the sentence he received, which was
significantly lower than the sentence originally imposed. The PCR court
rejected defendant's remaining arguments as vague, conclusory, and
speculative. A March 24, 2023 order memorialized the PCR court's decision.
This appeal followed. Defendant raises the following argument:
[DEFENDANT] IS ENTITLED TO RELIEF OR AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
[TRIAL AND APPELLATE] COUNSEL
1
Defendant filed a PCR petition in 2015. The court dismissed that petition
without prejudice because defendant's resentencing was then pending.
2
The PCR judge was not the judge who resentenced defendant.
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RENDERED INEFFECTIVE ASSISTANCE BY
FAILING TO ADVOCATE ADEQUATELY AT
SENTENCING.
II.
Under Rule 3:22-2(a), a defendant is entitled to PCR if there was a
"[s]ubstantial denial in the conviction proceedings of defendant's rights under
the Constitution of the United States or the Constitution or laws of the State of
New Jersey . . . ." "A petitioner must establish the right to such relief by a
preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459
(1992). "To sustain that burden, specific facts" which "would provide the
court with an adequate basis on which to rest its decision" must be articulated.
State v. Mitchell, 126 N.J. 565, 579 (1992).
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the
right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610
(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.
Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance
of counsel, the defendant must meet the two-part test established by Strickland
and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.
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Under Strickland, a defendant first must show that his or her attorney
made errors "so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687.
Counsel's performance is deficient if it "[falls] below an objective standard of
reasonableness." Id. at 688.
A defendant also must show that counsel's "deficient performance
prejudiced the defense[,]" id. at 687, because "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceed ing would
have been different[,]" id. at 694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome" of the trial. Ibid. "[A]
court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89, 261 (1997). "If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed."
Strickland, 466 U.S. at 697.
We review a judge's decision to not hold an evidentiary hearing on a
PCR petition for abuse of discretion. State v. Brewster, 429 N.J. Super. 387,
401 (App. Div. 2013) (citing Marshall, 148 N.J. at 157-58). Where the PCR
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court has not conducted an evidentiary hearing, we review its legal and factual
determinations de novo. State v. Aburoumi, 464 N.J. Super. 326, 338 (App.
Div. 2020); see also State v. Nash, 212 N.J. 518, 540-41 (2013).
A hearing is required only when: (1) a defendant establishes a prima
facie case in support of PCR; (2) the court determines that there are disputed
issues of material fact that cannot be resolved by review of the existing record;
and (3) the court determines that an evidentiary hearing is required to resolve
the claims asserted. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-
10(b)). "A prima facie case is established when a defendant demonstrates 'a
reasonable likelihood that his or her claim, viewing the facts alleged in the
light most favorable to the defendant, will ultimately succeed on the merits.'"
Id. at 355 (quoting R. 3:22-10(b)).
"[T]o establish a prima facie claim, a petitioner must do more than make
bald assertions that he was denied the effective assistance of counsel." Ibid.(quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). A
PCR petition must be "accompanied by an affidavit or certification by
defendant, or by others, setting forth with particularity[,]" State v. Jones, 219
N.J. 298, 312 (2014), "facts sufficient to demonstrate counsel's alleged
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substandard performance[,]" Porter, 216 N.J. at 355 (quoting Cummings, 321
N.J. Super. at 170); see also R. 3:22-10(c).
Having reviewed defendant's arguments in light of the record and
applicable legal principles, we affirm the March 24, 2023 order. Defendant 's
counsel secured a significant reduction in the sentence originally imposed. In
addition, the resentencing court considered defendant as he stood before the
court and found he made no showing that an updated sentencing report would
have contained information not already before the court that would have
resulted in an even further reduction in his sentence. Finally, defendant was
subject to mandatory incarceration, rendering mitigating factor ten
inapplicable. See State v. Washington, 408 N.J. Super. 564, 581 (App. Div.
2009). Thus, defendant raised no claims that would change the outcome of his
resentencing hearing. Defendant cannot demonstrate that if his trial and
appellant counsel had not made the errors he alleges they made he would have
received a shorter sentence for his armed robbery spree.
Affirmed.
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