STATE OF NEW JERSEY VS. PETER RALLIS (13-03-0502, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5356-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PETER RALLIS,
Defendant-Appellant.
____________________________
Argued May 22, 2019 – Decided June 7, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 13-03-
0502.
Jessica A. Wilson argued the cause for appellant
(Kalavruzos, Mumola, Hartman & Lento, LLC,
attorneys; Edward C. Bertucio, of counsel and on the
briefs; Elyse S. Schindel and Jessica A. Wilson, on the
briefs).
Ian D. Brater, Assistant Prosecutor, argued the cause
for respondent (Christopher J. Gramiccioni, Monmouth
County Prosecutor, attorney; Ian D. Brater, on the
brief).
PER CURIAM
Defendant Peter Rallis appeals from a June 18, 2018 order denying his
post-conviction relief (PCR) petition. We affirm for the reasons set forth in the
thorough and well-reasoned decision of Judge Paul X. Escandon.
We take the following facts from the record. In January 2012, a
confidential informant (CI) contacted a member of the Monmouth County
Prosecutor's Office Narcotics Strike Force with information that a Holmdel
Township resident named "Pete" was involved in a large-scale cocaine
distribution operation. The CI provided the color, make, model, and license
plate of the suspect's vehicle, which motor vehicle records revealed was
registered to defendant's residence. The CI arranged four drug buys between an
undercover detective and defendant. Task force members observed defendant
exit his residence with envelopes containing cocaine, which he placed inside an
SUV adjacent to the residence, and then remove cash the detective had placed
in the vehicle to fund the drug buys.
As a result, the task force obtained and executed a no-knock search
warrant for defendant's residence. The search warrant yielded nearly twelve
ounces of cocaine, $12,212 in cash, a digital scale, an electric money counter, a
ledger of narcotics sales, and other contraband.
A-5356-17T3
2
Defendant and his wife, who was present when the warrant was executed,
were subsequently indicted on multiple drug possession and possession with
intent to distribute charges. Defendant filed a motion to suppress the evidence
seized alleging the judge who issued the warrant was biased, to compel the State
to divulge the identity of the CI, for a hearing, and for other relief. The trial
judge granted the request to divulge the identity of the CI. After doing so, the
State dismissed the first nine counts of the indictment related to the drug buys
and non-warrant related evidence.
Defendant renewed his request for discovery and a hearing related to the
warrant judge's impartiality, but then withdrew the motions. The trial judge
denied defendant's motion to suppress. As a result, pursuant to a negotiated
plea, defendant pled guilty to first-degree possession of a controlled dangerous
substance with the intent to distribute, N.J.S.A. 2C:35-5(b)(1), and was
sentenced to a ten-year term of incarceration with forty-two months of parole
ineligibility. The State dismissed all charges against defendant's wife.
Defendant appealed from his conviction and we affirmed. State v. Rallis,
No. A-5629-13 (App. Div. May 23, 2016). In the prior appeal, defendant raised
an argument similar to an argument set forth in his PCR petition. He claimed
the judge who issued the warrant should have recused himself because his
A-5356-17T3
3
brother worked for the prosecutor's office, which sought the warrant, and
therefore the trial judge should have suppressed the evidence. We concluded
there was "no evidence of actual bias or partiality by the warrant judge" to justify
recusal. Id. at 13-14. We further concluded the totality of the circumstances
did not require suppression of the evidence because "there was ample support
for the warrant." Id. at 22-23.
In the PCR petition related to this appeal, defendant challenged his plea
and claimed: 1) he had a colorable claim of innocence on due process and
statutory entrapment grounds; 2) his prior counsel obtained exculpatory
information from the CI, which counsel did not share with the State; 3) he was
coerced into accepting the plea bargain; and 4) the State would not be prejudiced
if the plea were withdrawn.
The non-plea related grounds for defendant's petition asserted his counsel
was ineffective because he: 1) pressured defendant into accepting a guilty plea
without using the information provided by the CI to achieve a better result; 2)
engaged in unethical conduct by urging defendant to retain a disbarred attorney
to prepare the appeal and to sell one of counsel's motorcycles for money; 3) did
not challenge the execution of the search warrant; 4) did not assert a meritorious
defense of due process and statutory entrapment based on conversations between
A-5356-17T3
4
the CI and defendant; and 5) as part of the motion to suppress, failed to argue
for the warrant judge's disqualification from any case involving defendant.
Judge Escandon issued a twenty-two page written decision, which denied
defendant's petition without an evidentiary hearing. The judge found
defendant's claims regarding disqualification of the warrant judge and validity
of the search warrant were previously rejected on appeal and procedurally barred
pursuant to Rule 3:22-5. The judge denied defendant's ineffective assistance of
counsel argument finding "[t]he issues regarding the [CI] and the other
potentially exculpatory [evidence] are purely speculative because a rational
defendant would not have rejected this plea." Likewise, the judge concluded
defendant's claim he had an entrapment defense failed because "[t]he prior
counts that related more specifically to controlled buys and the CI were dropped
as part of the plea agreement."
The judge concluded defendant could not claim an ethical violation on the
part of his counsel because he never retained the disbarred attorney. Moreover,
the judge found no evidence of a causal connection between the alleged conduct
and defendant's guilty plea.
A-5356-17T3
5
Judge Escandon rejected defendant's arguments for withdrawal of the
plea. Addressing the State v. Slater1 factors, he concluded "[t]here is no
evidence in this record to support any claim of innocence." Moreover, he found
plea counsel acted appropriately and professionally, . . .
reviewed the case with defendant on several occasions
and the plea and supplemental form with defendant.
Defendant had ample time to discuss waiving his
constitutional rights with plea counsel. Defense
counsel reviewed the discovery, indictment, and
accusations. [P]lea counsel . . . discussed the penal
consequences of the plea.
The judge noted the favorable nature of defendant's plea, namely, that he
received the minimum sentence and dismissal of the charges against his wife.
This appeal followed.
In his initial brief on appeal, defendant argues as follows:
POINT I – THE TRIAL COURT ERRED IN
DENYING APPELLANT'S MOTION TO
WITHDRAW HIS GUILTY PLEA/PETITION FOR
POST-CONVICTION RELIEF.
POINT II – AN EVIDENTIARY HEARING SHOULD
BE GRANTED PURSUANT TO STATE V. HOENS.2
In his reply brief, defendant raises the following additional points:
1
198 N.J. 145 (2007).
2
No. A-4208-15 (App. Div. May 4, 2017).
A-5356-17T3
6
A. APPELLANT IS ENTITLED TO POST-
CONVICTION RELIEF PURSUANT TO
3
STRICKLAND V. WASHINGTON.
B. APPELLANT IS ENTITLED TO WITHDRAW
HIS GUILTY PLEA PURSUANT TO STATE V.
SLATER.
I.
When the PCR court does not hold an evidentiary hearing, we "conduct a
de novo review[.]" State v. Harris, 181 N.J. 391, 421 (2004). To show
ineffective assistance of counsel, a defendant must satisfy the two-pronged test
of Strickland, 466 U.S. at 687, adopted by our Supreme Court in State v. Fritz,
105 N.J. 42, 67 (1987). "The defendant must demonstrate first that counsel's
performance was deficient, i.e., that 'counsel made errors so serious that counsel
was not functioning as the "counsel" guaranteed the defendant by the Sixth
Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland,
466 U.S. at 687). The "defendant must overcome a strong presumption that
counsel rendered reasonable professional assistance." Ibid. (citing Strickland,
466 U.S. at 689). Second, "a defendant must also establish that the
ineffectiveness of his attorney prejudiced his defense. 'The defendant must
show that there is a reasonable probability that, but for counsel's unprofessional
3
466 U.S. 668 (1984).
A-5356-17T3
7
errors, the result of the proceeding would have been different.'" Id. at 279-80
(quoting Strickland, 466 U.S. at 694).
A PCR court need not grant an evidentiary hearing unless "a defendant
has presented a prima facie [case] in support of post-conviction relief." State v.
Marshall, 148 N.J. 89, 158 (1997) (alteration in original) (quoting State v.
Preciose, 129 N.J. 451, 462 (1992)). "To establish such a prima facie case, the
defendant must demonstrate a reasonable likelihood that his or her claim will
ultimately succeed on the merits." Ibid. (citing Preciose, 129 N.J. at 463). The
court must view the facts "in the light most favorable to defendant." Ibid. (citing
Preciose, 129 N.J. at 462-63).
Where a defendant challenges the validity of a plea, the court should
consider and balance four factors in evaluating motions
to withdraw a guilty plea: (1) whether the defendant has
asserted a colorable claim of innocence; (2) the nature
and strength of defendant's reasons for withdrawal; (3)
the existence of a plea bargain; and (4) whether
withdrawal would result in unfair prejudice to the State
or unfair advantage to the accused.
[Slater, 198 N.J. at 157-58.]
Having considered defendant's claims under the aforementioned
standards, we affirm for the reasons set forth in Judge Escandon's decision. Rule
3:22-5 clearly barred defendant's arguments regarding the warrant and the judge
A-5356-17T3
8
who granted it. Notwithstanding, he presented no credible evidence of a prima
facie case of ineffective assistance of counsel or a basis to vacate his plea on
such grounds.
Affirmed.
A-5356-17T3
9