STATE OF NEW JERSEY v. MIGUEL RAMOS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5180-06T25180-06T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIGUEL RAMOS,

Defendant-Appellant.

_______________________________

 

Argued: April 21, 2008 - Decided:

Before Judges Collester and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 97-07-03146.

Anthony J. Fusco, Jr., argued the cause for appellant (Fusco & Macaluso, attorneys for appellant; Mr. Fusco, of counsel; Paulette L. Pitt, on the brief).

Sara A. Friedman, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Friedman, of counsel and on the brief).

PER CURIAM

Defendant Miguel Ramos appeals from a May 4, 2007, order denying defendant's second application for post-conviction relief (PCR). Because we conclude that the relief sought in this second PCR petition was procedurally barred by Rule 3:22, we affirm.

On June 27, 1997, defendant was indicted and charged with first-degree robbery contrary to N.J.S.A. 2C:15-1, third-degree unlawful possession of a handgun contrary to N.J.S.A. 2C:39-5(b) and second-degree possession of a handgun for an unlawful purpose contrary to N.J.S.A. 2C:39-4(a). After a four-day trial, the jury found defendant guilty of first-degree robbery and not guilty of the weapons offenses. On November 20, 1998, defendant was sentenced to a twenty-year term of imprisonment with a ten-year period of parole ineligibility. That sentence was to run consecutively to a sentence imposed on an unrelated indictment.

Defendant appealed his conviction and raised the following issues:

POINT I - THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL UPON THE INTRODUCTION OF PREJUDICIAL AND IMPERMISSIBLE EVIDENCE.

POINT II - THE TRIAL COURT IMPROPERLY APPLIED THE GRAVES ACT.

POINT III - THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV - THE SENTENCE METED OUT IS GROSSLY EXCESSIVE.

POINT V - THE STATE'S CROSS EXAMINATION OF DEFENDANT CONSTITUTED PROSECUTORIAL MISCON-DUCT WHICH AMOUNTS TO PLAIN ERROR. [RAISED PRO SE.]

POINT VI - THE TRIAL COURT'S INSTRUCTION TO THE JURY ON ACCOMPLICE LIABILITY WAS PREJUDICIAL AND MISLEADING WHICH SERVED TO CONFUSE THE JURY. [RAISED PRO SE.]

POINT VII - THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION ARTICLE I PARAGRAPH 10 BY COUNSEL'S FAILURE TO SEEK SANITIZATION OF WITNESS['S] SIMILAR PRIOR CONVICTIONS(S). [RAISED PRO SE.]

We concluded that points one through four and six were without sufficient merit to warrant discussion in a written opinion, citing Rule 2:11-3(e)(2). State v. Ramos, No. A-2668-98 (App. Div. May 31, 2000) (slip op. at 3). As to the remaining points, we noted that trial counsel had not found the prosecutor's questions offensive and the entire examination was relatively brief. Id. (slip op. at 5). We concluded that any error was harmless beyond a reasonable doubt. Ibid. We also concluded that defendant's claim of ineffective assistance of counsel lacked merit. Ibid.

Three years later, defendant filed his first petition for post-conviction relief on July 10, 2003. At that time he raised two issues relating to jury selection. First he contended that the prosecutor's use of its peremptory challenges to strike African-Americans from the jury denied him equal protection of law under the State and Federal Constitutions. He also argued that counsel was constitutionally ineffective for not moving for a mistrial when the prosecutor excluded African-Americans from the jury. The PCR judge heard oral argument on that petition on March 2, 2005, and denied it on April 1, 2005. The trial record revealed that trial counsel noted on the record that the prosecutor had removed twelve African-Americans with its peremptory challenges but trial counsel went on to say, "I'm not making a [Gilmore] motion, we have a jury, but I think the record should reflect." The prosecutor then immediately disputed any Gilmore violation, noting that he excused an Hispanic male, a white female and a white male and stated that the African-American jurors were excused because they either had relatives or friends who had prior convictions involving murder.

The first PCR judge concluded that the time to file a PCR application had expired under Rule 3:22-12. The judge further concluded that the Gilmore issue could and should have been raised on direct appeal, thus barring consideration of the issue under Rule 3:22-4. The judge then went on to comment that the petition lacked merit under the two-prong test of ineffective assistance of counsel adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Specifically, the judge concluded that "defense counsel's election not to make a motion rested largely in his recognition that he could not establish that the State exercised its peremptory challenges in a constitutionally inappropriate way." No appeal was taken from that determination.

Defendant's second PCR petition was filed on August 11, 2006, almost eight years after sentence was imposed on the underlying conviction. In the petition before us, defendant claims that three jurors were allowed to serve on the jury who had either been victims of a robbery or who had friends that were robbery victims. He asserts that his trial attorney was ineffective in failing to exclude them from the jury.

The first of the three jurors who are the subject of this PCR petition, Edward Sims, stated that twenty-five years before trial he had worked at a service station where a co-worker at the gas pumps was robbed at gunpoint. The juror reassured the court there was nothing about this experience that would prevent him from being a fair and impartial juror in the case.

The second juror, Loretta White Standing, advised the court that she was mugged in East Orange eleven years before the trial, that she apprehended the person and directed the police to the mugger. She also stated that she elected not to prosecute him and averred there was nothing about this experience that would prevent her from being fair and impartial in deciding the case.

Last, juror Louise Bahto, stated that about four years before the trial a co-worker at a university where she worked had been hijacked and shot. She knew that the perpetrator had been caught and tried but did not know whether he had been convicted. This juror said that she would hope that there was nothing about this crime that would prevent her from being fair and impartial. When questioned further she stated that she did not suspect that there would be anything that would prevent her from being able to be fair and impartial. Although defense counsel did not question the first two jurors, he did further probe any potential bias on the part of juror Bahto, after which defense counsel asked that she be excused for cause. The court refused concluding that there was nothing that would warrant removing the juror.

Although defense counsel sought to have his client brought from a prison in Connecticut to attend the PCR hearing, the second PCR judge declined that request, concluding that defendant would not be prejudiced by his absence at the proceeding.

The second PCR judge issued a written opinion in which he concluded that petitioner was not entitled to a plenary hearing because he had not made out a prima facie case of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and Fritz, supra, 105 N.J. at 58. Although discussing the procedural bars to relief, the trial judge did not rest his decision on the ground that the petition was procedurally barred.

On appeal, defendant raises the following issues:

Point I - PETITIONER DEMONSTRATED INEFFECTIVE ASSISTANCE OF COUNSEL DURING JURY SELECTION. THE TRIAL COURT ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF.

A. Standard of Review

B. Defense Counsel's Failure to Remove Three Jurors with Proximity to Robberies Or Robbery Victims Destroyed Their Impartiality as Jurors. Petitioner Demonstrated the Ineffective Assistance Of His Counsel.

Point II - THE TRIAL COURT'S REFUSAL TO REMOVE JUROR LOUISE BAHTO FOR CAUSE VIOLATED PETITIONER'S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL BY IMPARTIAL JURORS. THE TRIAL COURT ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF ON THIS BASIS.

A. Standard of Review

B. The Trial Court Erred in Refusing to Excuse Juror Bahto for Cause. The Remedy is a New Trial.

Point III - THE TRIAL COURT'S REFUSAL TO ALLOW MR. RAMOS TO BE PRESENT FOR ORAL ARGUMENT ON THE PETITION FOR POST-CONVICTION RELIEF WAS AN ABUSE OF DISCRETION.

Post-conviction relief under Rule 3:22 does not relieve a party from the obligation to raise meritorious issues on direct appeal. State v. McQuaid, 147 N.J. 464, 484 (1997); State v. Marshall, 148 N.J. 89, 146-47, cert. denied, 552 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. Cerbo, 78 N.J. 595, 605 (1979). When an issue could have been raised on direct appeal but was not, it will not be considered on post-conviction relief. R. 3:22-4; State v. Mitchell, 126 N.J. 565, 583 (1992); State v. Moore, 273 N.J. Super. 118, 126 (App. Div.), certif. denied, 137 N.J. 311 (1994).

Here, as in Mitchell, all of the information required to raise the issues before us now were available prior to the direct appeal. Mitchell, supra, 126 N.J. at 585. The jurors to whom objection is currently made were selected on October 21, 1998, and the transcript of the jury selection was transcribed October 25, 1999, about six months before the appeal from the direct conviction was submitted to the Appellate panel for decision. The availability of this transcript in 1999 precludes reliance on exception (a) to the bar of Rule 3:22-4. That exception permits consideration of an issue when it "could not reasonably have been raised in a prior proceeding." R. 3:22-4(a). There is nothing before us that would support relief from the bar of Rule 3:22-4 based on exception (b), which allows consideration of a time-barred petition where a refusal to consider the petition would deny defendant fundamental fairness in a constitutional sense. R. 3:22-4(b); State v. D.D.M., 140 N.J. 83, 101 (1995); Mitchell, supra, 126 N.J. at 587.

Defendant has not established a serious infringement of his constitutional rights and is thus not entitled to relief from the bar of the rule under subsection (c). R. 3:22-4(c). As a consequence we need not and do not address the substantive merit of defendant's ineffective assistance of counsel claims.

Finally, after carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issue raised by defendant respecting the PCR judge's determination not to writ him out of prison in Connecticut to attend argument on his PCR petition is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). The issue was committed to the sound discretion of the PCR judge and we find no abuse of that discretion.

 
Affirmed.

Appropriate fines and penalties were also imposed.

State v. Gilmore, 103 N.J. 508 (1986).

(continued)

(continued)

9

A-5180-06T2

June 26, 2008