STATE OF NEW JERSEY v. RALPH RASLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3886-06T43886-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RALPH RASLER,

Defendant-Appellant.

___________________________________

 

Submitted January 22, 2009 - Decided

Before Judges Stern and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-11-1268-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ralph Rasler appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

In January 2003, Rasler was found guilty on five counts of a twelve-count indictment arising out of the kidnapping and sexual assault of a nine-year-old boy. He was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree sexual assault, N.J.S.A. 2C:14-2(b); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He was acquitted on counts related to aggravated sexual assault, terroristic threats, and weapons possession. One count involving possession of a weapon was dismissed at the end of the State's case.

In May 2003, Rasler was sentenced to forty years in state prison with a twenty-five year parole ineligibility term on the kidnapping charge, a concurrent term of seven years with a three-and-one-half-year parole ineligibility term on the sexual assault charge, and a concurrent four-year term on the criminal restraint charge. We affirmed his conviction on direct appeal. State v. Rasler, No. A-6124-02 (App. Div. Sept. 7, 2005). We declined to consider his allegations of ineffective assistance of counsel at that time, observing that the issue is best addressed on PCR. The Supreme Court denied certification. State v. Rasler, 185 N.J. 392 (2005).

Rasler filed a PCR petition pro se, and was subsequently assigned counsel. Judge James F. Mulvihill heard argument on the petition on December 15, 2006, at which time he gave an oral decision with respect to some of Rasler's contentions. Having determined that testimony from Rasler's trial counsel on the issue of his pretrial consultations with Rasler was necessary for a complete disposition of the petition, Judge Mulvihill held a hearing for that purpose on February 8, 2007. After hearing trial counsel's testimony, Judge Mulvihill gave an oral opinion denying the petition and entered an appropriate order on the same date. This appeal followed.

Rasler raises the following issues on this appeal:

POINT ONE

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE TIME BAR OF RULE 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO APPELLANT'S CASE.

C. DEFENDANT IS ENTITLED TO POST CONVICTION RELIEF AS HIS TRIAL ATTORNEY FAILED TO ADEQUATELY INVESTIGATE HIS MATTER.

D. DEFENDANT IS ENTITLED TO POST CONVICTION RELIEF AS HIS TRIAL ATTORNEY FAILED TO ADEQUATELY CONSULT WITH HIM REGARDING HIS MATTER.

Rasler argues that Judge Mulvihill should have held a full evidentiary hearing with respect to his allegations of ineffective assistance of counsel, relying on State v. Preciose, 129 N.J. 451, 462 (1992) ("Thus, trial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief.").

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient; and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In State v. Johnson, 365 N.J. Super. 27, 34 (2003), certif. denied, 179 N.J. 372 (2004), we noted that "[i]t is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial."

In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds by State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

The question becomes whether Rasler has articulated a prima facie case of ineffective assistance of counsel that would warrant a fuller evidentiary hearing than the one actually held. Judge Mulvihill determined that the issue of whether trial counsel conferred with Rasler in a meaningful manner before trial required an evidentiary hearing. Trial counsel's testimony was clearly inconsistent with the assertions in Rasler's petition. In fact, trial counsel's uncontradicted testimony confirmed that there were numerous consultations prior to trial.

Q [Prosecutor]. I take it from what you're saying it's not like you met on the eve of trial for the first time?

A [Trial Counsel]. No.

Q. If you can give your best memory I guess of how many times you met out at the Workhouse.

A. Six, seven.

Q. Over here in the courthouse what would you say?

A. Seven or eight.

Q. And they would be for court events?

A. Yes.

Q. Did you feel based on your experience both as a prosecutor and as a criminal defense attorney, did you feel you met enough on the day of trial, up to the trial and the day that it stated?

A. Yes.

Q. Based specifically on feedback that you got from your client did it appear to you that he was satisfied that you were ready to go on a trial?

A. Yes.

Q. In these seven or eight meetings here and five, six, seven meetings out there, are we talking you met for like a total of thirty-five minutes or are we talking you met for like a total of ten or twelve or fifteen hours?

THE COURT: We're talking about?

[Prosecutor]: Here and there.

THE COURT: All together.

A. (Continuing) I'd say probably closer to the latter, probably closer to fifteen hours.

Q. Maybe I'm repeating myself. I apologize. In that time when the gavel actually came down, it's time to go, you were ready?

A. Yes.

[Prosecutor]: I don't have any other questioning. Thank you.

[PCR Counsel]: Just very briefly.

Q [PCR Counsel]. . . . [I]n those fifteen hours six or seven times in the Correctional Center and seven or eight times at the courthouse I assume your meetings were a dialogue between yourself and Mr. Rasler, correct?

A [Trial Counsel]. Yes.

Q. Did you find his communication helpful for the preparation of the trial?

A. Yes.

[PCR Counsel]: Judge, nothing further.

Trial counsel's testimony also made it clear that there were questions of strategy with respect to how the defense approached the trial. For example, Rasler contends that his trial counsel never investigated the issue of whether he was taken to the hospital after his arrest. That issue was raised by Judge Mulvihill during the evidentiary hearing.

Q [The Court]. And how would you characterize Mr. Rasler as a client?

A [Trial Counsel]. I believe Mr. Rasler was cooperative. I tried to explain to him how I look at the case by way of certain things. When he had certain suggestions or certain things to say about it we went over those.

Q. Do you remember that he made suggestions?

A. Yes.

Q. And you considered those?

A. Yes. In fact some of them were used during the course of the trial.

Q. Was there any point where you had an impasse with him if you recall over some issue.

A. I don't think it was an impasse. I can tell the Court specifically one instance I can recall. I don't know if it violates his privilege.

[PCR Counsel]: I'm not sure on this. I think privilege is waived for purposes of this.

THE COURT: You understand the privilege is waived . . . , Mr. Rasler?

MR. RASLER: Sure.

THE COURT: Privilege is waived.

A. (Continuing) When Mr. Rasler was arrested he had a wound and the discovery indicated that he was taken to I believe it was Raritan Bay Medical Center and he was attended to and then brought back to the Correctional Facility where I believe he may have gotten some additional medical treatment. Mr. Rasler had indicated to me, my recollection, that he was never taken to a hospital but I had the reports that would indicate that he was taken to the hospital. We discussed that and I indicated to him that that is something we should leave alone, the fact that he was not since I had the reports that indicated that he was and there was no way that I could find or could figure out to disprove the fact that he had gone to the medical center so that was one of the areas that I recall specifically and I think we left that alone during the course of the trial.

Q. Was he satisfied with your suggestion?

A. I believe at that point in time he was.

As previously stated, trial counsel's strategic and tactical decisions will not ordinarily provide the basis for a finding of ineffective assistance of counsel, even if they are miscalculations. Fitz, supra, 105 N.J. at 54; see also State v. Castagna, 187 N.J. 293, 314-15 (2006).

We are satisfied that Judge Mulvihill held an appropriate hearing under the circumstances of this case. We conclude that the other issues raised on appeal are without merit and affirm as to them essentially for the reasons set forth in Judge Mulvihill's two oral decisions. R. 2:11-3(e)(2).

Affirmed.

The endangering counts were merged with the kidnapping and sexual assault counts.

It was Judge Mulvihill who decided that Rasler's trial counsel should be brought in to testify. On the day of the hearing, he asked who would call him. The prosecutor responded: "I guess I will."

Although Rasler now contends that he was not permitted to testify in response to the testimony of his trial counsel, the record reflects that he was not offered as a witness at the hearing on February 8, 2007. When asked by Judge Mulvihill if he wished to be heard, Rasler's PCR counsel stated:

At this point I'll submit. I think the Court has made a pretty broad record on this. I know we're here for the limited purpose of this one issue. I think, frankly, [trial counsel's] testimony speaks for itself so I'll submit, judge.

(continued)

(continued)

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A-3886-06T4

RECORD IMPOUNDED

March 31, 2009