STATE OF NEW JERSEY VS. RAHEEM A. PAMPLIN (07-12-4002 AND 08-01-0126, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-1968-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAHEEM A. PAMPLIN, a/k/a
RASHEEM MCAIR and TREMPLIN
PAMPLIN,
Defendant-Appellant.
_________________________________
Submitted April 12, 2018 – Decided July 12, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
07-12-4002 and 08-01-0126.
Joseph E. Krakora, Public Defender, attorney
for appellant (Charles P. Savoth, III,
Designated Counsel, on the briefs).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Matthew
E. Hanley, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from the October 21, 2016 order of the
trial court denying his petition for post-conviction relief (PCR)
without granting an evidentiary hearing. He argues he established
"a prima facie case of ineffective assistance of counsel" "under
the two-pronged test set forth in Strickland [v. Washington, 466
U.S. 668, 687 (1984)]" based on "his trial counsel's failure to
file a severance motion and consolidation motion" for his three
indictments prior to his first trial. He asserts that because his
co-defendant "refused to enter into a plea deal," a motion to
sever "would have saved [him] from trial, while a consolidation
motion would have reduced his overall sentence or increased his
chances of negotiating a better plea deal overall." We disagree
and affirm.
We glean the following facts from the record. On December
11, 2007, an Essex County grand jury returned Indictment No. 07-
12-4002 (the first indictment), charging defendant and co-
defendant Quadir Graham with third-degree conspiracy, N.J.S.A.
2C:5-2 (count one); third-degree possession of a controlled
dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count two); third-
degree possession of a controlled dangerous substance with intent
to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count three); and
third-degree possession of a controlled dangerous substance with
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intent to distribute within 1000 feet of a school zone, N.J.S.A.
2C:35-7 (count four).
The following year, on January 11, 2008, another Essex County
grand jury returned Indictment No. 08-01-0126 (the second
indictment), charging defendant with third-degree possession of a
controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count
one); third-degree possession of a controlled dangerous substance
with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count
two); and third-degree possession of a controlled dangerous
substance with intent to distribute within 1000 feet of a school
zone, N.J.S.A. 2C:35-7 (count three).
While the Essex County indictments were pending, on December
23, 2008, a Bergen County grand jury returned Indictment No. 08-
12-2231 (the third indictment), charging defendant with second-
degree possession of a controlled dangerous substance with intent
to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(2) (count one); second-
degree employing a juvenile in a drug distribution scheme, N.J.S.A.
2C:35-6 (count two); second-degree possession of a firearm during
a drug offense, N.J.S.A. 2C:39-4.1(a) (count three); and second-
degree possession of a firearm for an unlawful purpose, N.J.S.A.
2C:39-4(a) (count four).
On March 5, 2009, following a jury trial on the first
indictment, defendant was convicted on count two, and the jury
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hung on the remaining counts. On April 13, 2009, defendant entered
a negotiated guilty plea to count two of the second indictment
pursuant to a plea agreement wherein the State agreed to dismiss
the remaining charges in both the first and second indictments.
On September 23, 2009, prior to sentencing on the first two
indictments, defendant was tried in absentia by a jury and found
guilty on all counts in the third indictment. On March 26, 2010,
defendant was sentenced on the third indictment to an aggregate
extended term sentence of thirty-six years with thirteen-and-one-
half-years of parole ineligibility. Thereafter, on September 13,
2011, defendant was sentenced to a four-year term of imprisonment
each on the first and second indictments, to run concurrent with
each other and concurrent with the third indictment.
Defendant's convictions and sentences on the first and second
indictments were affirmed on appeal in our unpublished opinion,
State v. Pamplin, No. A-1582-12 (App. Div. Sept. 22, 2014), which
we incorporate by reference. As to the third indictment, we
affirmed the convictions but remanded for resentencing in our
unpublished opinion, State v. Pamplin, No. A-1008-10 (App. Div.
Sept. 4, 2012), which we also incorporate by reference. We later
affirmed the aggregate twenty-seven-year term of imprisonment with
thirteen-and-one-half years of parole ineligibility imposed at the
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resentencing hearing on our Excessive Sentence Oral Argument
calendar, R. 2:9-11, by order filed August 29, 2013.
Defendant filed a petition for PCR on the third indictment
alleging, among other things, that his trial counsel was
ineffective for failing "to move to [c]onsolidate Bergen [County]
charges with Essex [County] matters resulting in a higher aggregate
sentence and extended term." The PCR court rejected all of
defendant's arguments without granting an evidentiary hearing, and
we affirmed in an unpublished opinion. State v. Pamplin, No. A-
3581-14 (App. Div. Aug. 25, 2017).
On June 16, 2015, defendant filed a timely pro se petition
for PCR on the first and second indictments, which is the subject
of this appeal. Defendant alleged that his trial counsel was
ineffective for failing to file a "motion for [c]onsolidation
pursuant to [Rule] 3:25A-1, of [his] multi[-]county
indictments/offenses, resulting in higher overall sentence(s)."
Defendant's assigned PCR counsel filed a supplemental PCR petition
and supporting brief, arguing that trial counsel "failed to
consolidate [d]efendant's Bergen County matter with the Essex
County matter even after [d]efendant requested that it be done."
According to PCR counsel, defendant was prejudiced because it
placed defendant "in a poor position to negotiate pleas in both
cases." PCR counsel also submitted a supporting affidavit in
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which defendant averred that he requested his trial counsel to
file a motion to consolidate, but he failed to do so. Defendant
also stated that trial counsel "failed to discuss any motions with
[him] and did not file a [m]otion to [s]uppress or a [m]otion for
[s]everance."
On October 21, 2016, following oral argument, the PCR court
rejected defendant's arguments and denied the petition, concluding
defendant failed to satisfy the Strickland test to warrant PCR
relief or an evidentiary hearing. Specifically, as to trial
counsel's failure to file a consolidation motion, relying on State
v. Rountree, 388 N.J. Super. 190, 213 (App. Div. 2006), the court
acknowledged that defendant satisfied the first Strickland prong.
However, the court found that the second Strickland prong had not
been met because, had a consolidation motion "been filed[,] it
would [not] have affected [defendant's] ability to resolve the
issue by plea agreement" so "that the result would have been
different." To support its finding, the court pointed out that
defendant "ha[d] not shown that he was prevented from obtaining a
plea in the Bergen County matter," and "the sentence in Essex
County was run concurrent to the sentence in Bergen County."
Turning to defendant's claim that his trial counsel was
ineffective for failing to file a severance motion, citing State
v. Robinson, 253 N.J. Super. 346, 364 (App. Div. 1992), the PCR
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court noted that while Rule 3:15-2(b) provided relief from
prejudicial joinder, there was "a general preference to try co-
defendants jointly," and under State v. Brown, 170 N.J. 138, 160
(2001), "[d]anger by association [was] not enough to support a
motion to sever." The court determined there was "nothing . . . in
[the] record that indicate[d] the severance was . . . reasonable,
and the motion should have been filed" and found no prejudice from
trial counsel's failure to file a severance motion. The court
entered a memorializing order on the same date and this appeal
followed.
On appeal, defendant raises the following single point for
our consideration:
IT WAS AN ABUSE OF DISCRETION FOR THE PCR COURT
TO DENY DEFENDANT AN EVIDENTIARY HEARING.
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999). Rather, trial courts should
grant evidentiary hearings only if the defendant has presented a
prima facie claim of ineffective assistance, material issues of
disputed fact lie outside the record, and resolution of the issues
necessitate a hearing. R. 3:22-10(b); State v. Porter, 216 N.J.
343, 355 (2013). "Rule 3:22-10 recognizes judicial discretion to
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conduct such hearings." State v. Preciose, 129 N.J. 451, 462
(1992).
A PCR court deciding whether to grant an evidentiary hearing
"should view the facts in the light most favorable to a defendant
to determine whether a defendant has established a prima facie
claim." Id. at 463.
To establish a prima facie claim of
ineffective assistance of counsel, a defendant
must demonstrate the reasonable likelihood of
succeeding under the test set forth in
[Strickland, 466 U.S. at 694], and United
States v. Cronic, 466 U.S. 648 (1984), which
[our Supreme Court] adopted in State v. Fritz,
105 N.J. 42, 58 (1987).
[Ibid.]
Under the Strickland standard, a defendant must make a two-
part showing, State v. O'Neil, 219 N.J. 598, 610 (2014), by
demonstrating that trial counsel's performance was both deficient
and prejudicial. State v. Martini, 160 N.J. 248, 264 (1999). The
performance of counsel is "deficient" if it falls "below an
objective standard of reasonableness" measured by "prevailing
professional norms." Strickland, 466 U.S. at 687-88. This
standard of "reasonable competence," Fritz, 105 N.J. at 60, "does
not require the best of attorneys," State v. Davis, 116 N.J. 341,
351 (1989), and the defendant must overcome a "strong presumption
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that counsel rendered reasonable professional assistance." State
v. Parker, 212 N.J. 269, 279 (2012).
"[A] defendant must also establish that the ineffectiveness
of his attorney prejudiced his defense" by showing "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 279-
80 (quoting Strickland, 466 U.S. at 694). "A 'reasonable
probability' simply means a 'probability sufficient to undermine
confidence in the outcome' of the proceeding." O'Neil, 219 N.J.
at 611 (quoting Strickland, 466 U.S. at 694).
"Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable." Fritz, 105
N.J. at 52 (alteration in original) (quoting Strickland, 466 U.S.
at 687). Defendant bears the burden of proving both prongs of an
ineffective assistance of counsel claim by a preponderance of the
evidence. State v. Gaitan, 209 N.J. 339, 350 (2012).
Applying these principles, we conclude that the PCR court
properly denied defendant's petition without granting an
evidentiary hearing. Assuming that a motion for consolidation
would have been granted as authorized by State v. Pillot, 115 N.J.
558, 568 (1989), as the PCR court noted, defendant presented no
evidence of a plea offer or that he was prevented from accepting
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a plea offer in the Bergen County case for any reason other than
his own conduct. Indeed, defendant failed to appear for trial on
the Bergen County indictment and was tried in absentia. Further,
other than "bald assertions," which are insufficient for PCR,
Cummings, 321 N.J. Super. at 170, defendant presented no evidence
that he would have received a more favorable overall plea offer
if the cases had been consolidated. The Bergen County case was
clearly the most serious of the three, and defendant received
significantly less severe concurrent sentences in the Essex County
cases despite going to trial on the first indictment.1
"Defendant's ineffective-assistance arguments therefore fail to
meet the second Strickland prong, that is, failure to consolidate
did not likely make a difference." Rountree, 388 N.J. Super. at
213.
As to trial counsel's failure to file a motion to sever, it
is well established that "[i]t is not ineffective assistance of
1
We note that ordinarily, in circumstances as those presented to
defendant in the first indictment, it is unlikely that the State
would have rebuffed defendant's offer to enter a negotiated guilty
plea conditioned upon incriminating his recalcitrant co-defendant
at trial. See, e.g., State v. Jaffe, 220 N.J. 114, 116 (2014)
(State accepted defendant's guilty plea to one offense if he agreed
to testify against his co-defendants in exchange for a reduced
sentence); State v. Dalziel, 182 N.J. 494, 498 (2005) (prosecutor
accepted defendant's negotiated guilty plea to one offense and
truthful testimony against co-defendant in exchange for dismissal
of all other charges).
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counsel for defense counsel not to file a meritless motion." State
v. O'Neal, 190 N.J. 601, 619 (2007). As we explained in
defendant's direct appeal of his first and second indictments,
defendant's conviction on the first indictment stemmed from police
observing defendant and co-defendant Graham engaged in a hand-to-
hand drug sale to an unidentified buyer, during which defendant
"act[ed] as a lookout for Graham" and after which police recovered
"fifteen decks of what was . . . later confirmed as heroin" and
"$518 from defendant" in a search incident to his arrest. Pamplin,
No. A-1582-12, slip op. at 2, 9. As the PCR court noted, where
"much of the same evidence is needed to prosecute each defendant,
a joint trial is preferable." State v. Sanchez, 143 N.J. 273, 281
(1996) (quoting State v. Brown, 118 N.J. 595, 605 (1990)).
Inasmuch as a severance motion would not have been successful,
defendant's trial attorney was not ineffective because he failed
to file one. Moreover, given the concurrent sentences on the
Essex County indictments, defendant cannot show the requisite
prejudice to warrant PCR or an evidentiary hearing.
Affirmed.
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