STATE OF NEW JERSEY VS. RICKY W. SESSOMS (09-05-1233, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-0957-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICKY W. SESSOMS,
Defendant-Appellant.
_________________________________
Submitted April 5, 2017 – Decided May 23, 2017
Before Judges Alvarez and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
09-05-1233.
Joseph E. Krakora, Public Defender, attorney
for appellant (Suzannah Brown, Designated
Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (Melinda A. Harrigan,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant, Ricky Sessoms, appeals from the June 1, 2015 order
denying his petition for post-conviction relief (PCR) and
declining to conduct an evidentiary hearing. Defendant is serving
an aggregate sentence of eight-years imprisonment with a five-year
parole disqualifier arising out of the sentences imposed on
September 23, 2011. More particularly, defendant was sentenced
to two counts of the indictment to which he pled guilty, Count
Seven, second-degree certain persons not to have weapons, N.J.S.A.
2C:39-7, for which he was sentenced to five-years imprisonment
with a mandatory five-year parole disqualifier, and Count Three,
third-degree possession with intent to distribute a controlled
dangerous substance, namely, marijuana, within 1,000 feet of
school property, N.J.S.A. 2C:35-7, on which he was sentenced to
an extended term pursuant to N.J.S.A. 2C:43-6f, of eight-years
imprisonment with a four-year parole disqualifier.
Defendant did not file a direct appeal. On October 15, 2013,
he filed a pro se PCR petition. He was subsequently assigned
counsel who filed a new verified petition and brief. After oral
argument, the court issued its order denying the petition and
declining to conduct an evidentiary hearing.
Defendant now appeals, arguing:
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POINT I
THE LOWER COURT ERRED IN DENYING MR. SESSOMS'
PETITION FOR POST-CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING.
POINT II
THE PCR COURT ERRED IN DENYING MR. SESSOMS'S
CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE AT
SENTENCING.
We reject these arguments and affirm.
The charges against defendant arose out of an investigation
into drug activity in Atlantic City. On March 25, 2009, the
Atlantic City Police Department executed a search warrant at
defendant's home and found approximately fourteen ounces of
marijuana and .38 caliber handgun. Defendant's wife was alone at
home when the search occurred. Defendant was at work. The police
went to defendant's place of employment, informed him of the
results of their search, and placed him under arrest. The police
administered Miranda1 warnings to defendant. Defendant
volunteered to the police that the "stuff" found in his home was
his, that his wife did not know about it, had nothing to do with
it, and that she should not be implicated. He said he would give
a statement to that effect.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
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When they arrived at the police station, however, defendant
said he wanted to speak to his attorney first. The police honored
defendant's position and provided him with his cell phone so he
could call his attorney. Apparently the attorney was in court and
unavailable to speak to defendant. Defendant was placed in a
holding cell.
Because defendant declined to give a recorded statement, the
police did arrest defendant's wife and brought her to the
stationhouse. Further events transpired, including some
interaction between defendant and his wife. In the end, after
being re-administered his Miranda rights and waiving them,
defendant did give an inculpatory statement.
Defendant filed a motion seeking to suppress the statement
he gave to the police. After an evidentiary hearing, Judge Charles
Middlesworth, Jr. issued a comprehensive Memorandum of Decision
on September 11, 2009, denying the motion.2
Subsequently, through counsel, defendant negotiated a plea
agreement, by which he would plead guilty to the two counts we
previously mentioned for an aggregate sentence of eight-years
2
We have not been provided with a transcript of the Miranda
hearing. The information regarding the search, the arrest of
defendant and his wife, and the events that occurred at the
stationhouse are derived from Judge Middlesworth's written opinion
of September 11, 2009, denying defendant's Miranda motion.
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imprisonment with a five-year parole disqualifier. The remaining
five counts of the indictment would be dismissed. Defendant's
overall exposure on these charges was thirty-years imprisonment.
Defendant had two prior indictable convictions, both for drug
offenses. One of them, for possession of cocaine with intent to
distribute, resulted in a five-year state prison sentence. The
other, for conspiracy to possess marijuana with intent to
distribute, resulted in a probationary sentence, subject to three-
hundred-sixty-four days incarceration in the county jail.
Defendant entered his guilty plea before Judge Middlesworth
on December 7, 2010. He was sentenced, in accordance with the
plea agreement, by Judge Mark H. Sandson on September 23, 2011.
I.
In his first point, defendant contends that his trial attorney
was constitutionally ineffective at the plea hearing for failing
to preserve defendant's right to appeal the denial of his Miranda
motion. Defendant argues that he presented sufficient evidence
to establish a prima facie case of ineffective assistance of
counsel in this regard, and that he should have been afforded an
evidentiary hearing.
Rule 3:22-2 lists the cognizable grounds for PCR, including
the "[s]ubstantial denial in the conviction proceedings of
defendant's rights under the Constitution of the United Sates or
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the Constitution or laws of the State of New Jersey." Both
Constitutions guarantee the accused "the right to the effective
assistance of counsel" in criminal proceedings against them.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,
2063, 90 L. Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42,
58 (1987) (adopting Strickland's ineffective assistance standard).
To establish a claim under the Strickland/Fritz test, a
defendant must satisfy two prongs. First, he must demonstrate
that his counsel made errors so serious that counsel was not
functioning in accordance with the constitutionally guaranteed
standard; second, defendant must show that but for the deficient
conduct, a reasonable probability exists that the result of the
proceeding would have been different. State v. O'Neil, 219 N.J.
598, 611 (2014). In the context of asserted ineffective assistance
at a plea proceeding, the second prong focuses on whether the
asserted ineffective performance affected the outcome of the plea
process, namely, defendant must show that a reasonable probability
exists that, but for counsel's errors, he would not have pled
guilty and would have insisted on going to trial. Hill v.
Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370-71, 88 L. Ed.
2d 203, 209-11 (1985).
Evidentiary hearings may be granted on a PCR petition if the
defendant establishes a prima facie case of ineffective assistance
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of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). Such
hearings are only required if resolution of disputed issues are
"necessary to resolve the claims for relief." R. 3:22-10(b).
Hearings shall not be granted if they "will not aid the court's
analysis of the defendant's entitlement to post-conviction
relief," or "if the defendant's allegations are too vague,
conclusory or speculative." R. 3:22-10(e)(1) and (2). In order
to establish a prima facie case, a defendant must demonstrate a
reasonable likelihood that he or she will ultimately succeed on
the merits. State v. Marshall, 148 N.J. 89, 158, cert. denied,
522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Judge Sandson, who presided over the PCR proceeding,
concluded that defendant failed to make the required prima facie
showing. He initially found that while defendant now claims he
wanted to appeal the denial of his Miranda motion, there is no
evidence supporting the contention. Further, he found that
defendant presented no evidence that defendant ever informed his
attorney of his desire to appeal the denial of the Miranda motion.
Our review of the record confirms this assessment.
"Generally, a defendant who pleads guilty is prohibited from
raising, on appeal, the contention that the State violated his
constitutional rights prior to the plea." State v. Crawley, 149
N.J. 310, 316 (1997); see also Tollett v. Henderson, 411 U.S. 258,
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267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973). Three
exceptions to the waiver of a defendant's right to appeal have
been codified in New Jersey's court rules. State v. Knight, 183
N.J. 449, 471 (2005). Relevant to this appeal is Rule 3:9-3(f),
which allows a defendant to "enter a conditional plea of guilty
reserving on the record the right to appeal from the adverse
determination of any specified pretrial motion."
The standard plea form makes provision for this exception.
Question 4e asks: "Do you further understand that by pleading
guilty you are waiving your right to appeal the denial of all
other pretrial motions except the following:," which is followed
by three long blank lines. Defendant circled "No" following the
question. However, nothing was filled in on the lines.
In the PCR proceeding, defendant contended that his negative
answer was an indication that he intended to appeal denial of the
Miranda motion. However, that would have required filling in the
relevant information on one of the blanks. Had that been done,
the prosecutor might well have refused to join in the plea
agreement. Typically, reservation of such a right would be a
major factor in the negotiations and would have to be expressly
contained in the plea form and placed upon the record in the plea
colloquy with the clear assent of both parties.
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Defendant further points out that, at the time of his
sentencing, he indicated on the "Notice of Right to Appeal" form
that he wished to appeal. He contends that this further evidenced
his intent to appeal denial of his Miranda motion. However, that
document refers generally to an intent to appeal from defendant's
judgment of conviction. It contains no indication of his wish to
appeal from the denial of his Miranda motion. Further, that
document was completed many months after defendant's plea.
Importantly, in the plea colloquy, defendant acknowledged
that he went over all the questions with his attorney and
understood them, and that he was not promised anything that was
not written down in the plea forms.
Defendant has very generally stated that he believes his
attorney must have known that he intended to appeal denial of the
Miranda motion. However, he has filed no evidence to support that
contention, such as an affidavit or certification stating that he
told his attorney he had such an intention. Such bald assertions,
unsupported by an affidavit or certification specifying particular
facts are not sufficient to demonstrate counsel's alleged
substandard performance. State v. Cummings, 321 N.J. Super. 154,
170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). Merely
raising allegations of ineffective assistance, without competent
evidence sufficient to make the required prima facie showing, does
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not entitle a defendant to an evidentiary hearing. Id. at 170.
The first prong of the Strickland/Fritz test was not established
here.
As we have stated, the second prong, in the context of a
guilty plea, requires a showing that, but for the asserted
ineffective assistance of counsel, defendant would not have pled
guilty. Defendant makes that bald and generalized assertion in
his PCR submission. However, it is backed up by no facts to
support it.
Indeed, he acknowledged at the time of the plea and continues
to acknowledge that, if he goes to trial, he is exposing himself
to the possibility of up to thirty-years imprisonment, with parole
disqualifiers required on a number of the offenses. But we need
not merely infer that defendant does not really want to go to
trial, for he has expressly said so. At oral argument in the PCR
proceeding, he said this to the judge:
And although -- I mean if you -- if I may, I'm
saying, you know, all I'm trying to do is get
a renegotiated plea of a five with a three,
you know, with all my credits, if possible
from your Honor.
Defendant has expressed, in his own words, why the second prong
cannot be met.
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II.
In his second point, defendant argues that his trial counsel
was constitutionally deficient at his sentencing hearing because
he failed to call to the attention of the court certain mitigating
factors. Particularly, he argues that his counsel should have
urged the court to find the applicability of mitigating factors
under N.J.S.A. 2C:44-1b(7) and (9), namely, that "[t]he defendant
has no history of prior delinquency or criminal activity or has
lead a law-abiding life for a substantial period of time before
the commission of the present offense," and that "[t]he character
and attitude of the defendant indicate that he is unlikely to
commit another offense." He seeks a remand for a new sentencing
hearing.
Judge Sandson rejected this argument, and so do we. As we
have stated, defendant had two prior indictable convictions, both
for drug offenses. His drug activity in this case was, by his
admission, an ongoing course of drug activity, not a single
aberrant event. Defendant was also listed on the Domestic Violence
registry. At sentencing, the judge found three aggravating factors
to apply, namely, N.J.S.A. 2C:44-1a(3), the risk that defendant
would commit another offense, (6) the extent of defendant's prior
criminal record and the seriousness of his prior offenses, and (9)
11 A-0957-15T3
the need for deterrence. He found no mitigating factors, and
found a preponderance of aggravating factors.
Had the mitigating factors defendant now proposes been urged,
it is very doubtful that the judge would have found them
applicable. If he did, he would have likely accorded them very
minimal weight. The aggravating factors would have still
outweighed mitigating factors, and the sentence would not have
changed. This was a plea bargained sentence and no basis has been
shown for a probability that the result would have been different
had counsel done what defendant now says he should have done
differently at the sentencing hearing.
Affirmed.
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