STATE OF NEW JERSEY v. MARTY D ROSS

NOT FOR PUBLICATION WITHOUT THE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-3992-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARTY D. ROSS,

Defendant-Appellant.

_____________________________

December 15, 2016

Submitted September 14, 2016 Decided

Before Judges Carroll and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-10-2303.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Marty Ross appeals from the July 11, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. After a careful review of the record, we affirm substantially for the reasons set forth in the comprehensive written decision of Judge John R. Tassini.

Following a jury trial, defendant was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(b); two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); third-degree terroristic threats, N.J.S.A. 2C:12-3(b); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3)-(4); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3); and third-degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3). By way of a judgment of conviction entered on April 13, 2007, the court granted the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). After appropriate merger of certain counts, the court imposed an aggregate sentence of seventy years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appealed and we reversed the first-degree kidnapping conviction because of an erroneous jury instruction. State v. Ross, No. A-4762-06 (App. Div. July 10, 2009). At the parties' request, we molded the verdict to the lesser included offense of second-degree kidnapping to reflect the evidence presented and the court's instructions to the jury. Ibid. We vacated the sentence and remanded for the trial court to amend the judgment of conviction to reflect the molded verdict and re-sentence defendant accordingly. Ibid. The Supreme Court denied defendant's petition for certification. State v. Ross, 200 N.J. 505 (2009).

On December 23, 2009, defendant was resentenced to an aggregate sentence of seventy years, with an eighty-five percent period of parole ineligibility pursuant to NERA. Defendant appealed his resentence. We heard the appeal on our Excessive Sentence Oral Argument Calendar pursuant to Rule 2:9-11 and, on June 28, 2011, affirmed his sentence. State v. Ross, No. A-6257-09 (App. Div. June 28, 2011). On January 30, 2012, the Supreme Court denied his petition for certification.1 State v. Ross, 209 N.J. 231 (2012).

The facts underlying defendant's convictions are set forth in our 2009 opinion and need not be repeated here at length. Briefly, defendant abducted a seventeen-year-old girl off the street at knifepoint and took her to a motel room in Neptune where he forced her to smoke crack cocaine, and sexually assaulted her on multiple occasions over a prolonged period of time. Eventually, defendant drove the victim to an apartment where his cousin was staying with some friends, picking up his fiancée along the way from a different motel. Upon arrival, defendant started arguing with his fiancée who did not believe his explanation that the victim was his cousin and instead accused him of infidelity.

Defendant ultimately left the apartment with his fiancée, leaving the victim behind. At that point, the victim reported the kidnapping and the rape to the men in the apartment who loaned her a telephone to contact the police. Subsequently, defendant was located at his fiancée's motel room and arrested on an unrelated warrant. A search of the motel room revealed crack cocaine and an orange razor knife matching the victim's description of the weapon used. After waiving his Miranda2 rights, defendant claimed that he smoked and had consensual sex in a motel room with a prostitute he had picked up on the street.

While his appeal was pending, defendant filed a PCR petition, which was dismissed without prejudice at his request on November 29, 2010. See R. 3:22-6A(2). Defendant submitted another PCR petition dated March 14, 2013, which was filed on May 29, 2013.3 In the petition, defendant argued that there were no issues that were precluded from being raised in a PCR hearing; that he was denied the effective assistance of trial counsel in that counsel failed to properly investigate or adequately prepare a defense for trial; that he was denied the effective assistance of appellate counsel; and that the accumulation of errors demand that he be retried. The State opposed defendant's PCR, arguing that it was filed long after the prescribed time limitations and was thereby time barred. The State also asserted that the petition was substantively unsupported.

On July 11, 2014, following oral argument, Judge Tassini denied defendant's petition without granting an evidentiary hearing. In a twenty-page written decision, Judge Tassini first addressed the procedural bar and concluded that using either the five-year time bar after the entry of the judgment of conviction under R. 3:22-12(a)(1),4 or the ninety-day time bar after the date of the judgment on direct appeal under R. 3:22-12(a)(3),5 "defendant failed to file a timely petition for PCR." The judge explained that five years from the entry of the judgment of conviction was April 13, 2012, and ninety days after the Supreme Court denied defendant's petition for certification was May 2, 2012, rendering defendant's May 29, 2013 petition well beyond the time limitations prescribed in the court rules.

The time may be relaxed only by satisfying the limited exception provided in Rule 3:22-12(a)(1) permitting a late filing if the petitioner "alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." Such a claim must be made in the verified petition, which must allege facts sufficient to support it. State v. Cann, 342 N.J. Super. 93, 102 (App. Div.), certif. denied, 170 N.J. 208 (2001); see R. 3:22-8. Here, defendant's petition failed to allege any facts to support a claim of excusable neglect. "If the petitioner does not allege sufficient facts, the Rule bars the claim." State v. Goodwin, 173 N.J. 583, 594 (2002) (quoting State v. Mitchell, 126 N.J. 565, 576 (1992)). Nevertheless, Judge Tassini substantively addressed each of defendant's claims of ineffective assistance of counsel.

Regarding the Miranda issue, the judge stated

The defendant belatedly raises a Miranda-related assertion that is virtually identical and substantially equivalent to the Miranda issue he raised pre-trial. During the pre-trial Miranda hearing, the defendant based his argument on his allegation that he believed he was going to be asked questions about a relatively minor domestic violence warrant and not the kidnapping and sexual assault of [the victim]. In this PCR, defendant again asserts involuntary waiver of Miranda rights based on his allegation that he was unaware of the kidnapping and sexual assault investigation. The issue is substantially equivalent if not identical to the Miranda issue previously adjudicated, and therefore, is barred from being adjudicated on this PCR. Further, this issue does not fall within the "very limited exception" [where] a resurrected claim "raises a legitimate and important constitutional question" calling for the relaxation of the rules. [State v. Franklin, 184 N.J. 516, 528 (2005)]. The defendant attempts to re-litigate the Miranda issue that he previously lost by cloaking it in the phrase of ineffective assistance of counsel. Accordingly, the defendant's argument has no merit and is barred from adjudication in this PCR.

Next, the judge analyzed and rejected defendant's arguments that he was denied effective assistance of counsel by trial counsel's: (1) failure to adequately prepare, (2) failure to file a motion to suppress evidence seized during the warrantless search of the motel room, (3) failure to request that juror numbers six and seven be excused, (4) failure to obtain an immediate curative instruction to redress the victim's testimony that defendant told her that he "did not want to be locked up again," (5) failure to argue that the victim fabricated the allegations in order to retaliate against defendant because of his engagement to his girlfriend, and (6) failure to ensure that the court gave a limiting instruction regarding Detective Bonanno's testimony.

Regarding trial counsel's purported ineffectiveness by failing to file a suppression motion, the judge determined that there was no reasonable probability that the motion would have succeeded because the "uncontradicted trial record" showed that defendant's fiancée "had moved to New Jersey to join him, and resided in the motel room for about twenty days before the search. Accordingly, [she] had authority to consent to the search."

Regarding juror numbers six and seven, the judge found

The trial record shows that the jury was acceptable to the defense. Nonetheless, the defendant now argues that trial counsel wrongfully failed to request that the court excuse jurors 6 and 7.

Juror 6 stated that she had an acquaintance in the [Monmouth County Prosecutor's Office], but she also stated that it would not prevent her from being fair and impartial in this particular case. Juror 7 stated that he was the former teacher and coach of Detective Richard Chapman of the [Monmouth County Prosecutor's Office], but he also stated that the prior relationship would not impact his decision one way or another. Juror 7 also stated that he would be leaving for two (2) months in the near future, but that he did not mind being on the jury. Given the record, these jurors were unbiased as contemplated by New Jersey law. Nonetheless, the defendant now asserts that these jurors demonstrate ineffectiveness of his trial counsel. There is no reasonable basis to find that the jurors could not fairly judge and evaluate the facts of defendant's case. Accordingly, the defendant has not supported his assertion of ineffective assistance.

Regarding the curative instruction in response to the victim's testimony, the judge stated

The victim testified, on December 7, 2006, that the defendant stated that he "did not want to be locked up again." On the next trial date, December 12, 2006, the defense counsel raised the matter with the trial court and the trial court instructed the jury that the testimony should have no part in their verdict. The defendant argues that, because his trial counsel did not obtain an immediate instruction from the trial judge and because the judge's instruction was five days after the testimony, he was prejudiced by inadmissible and prejudicial evidence of prior crimes. However, it is presumed that the jury will follow the instructions given, regardless of when given.

Regarding trial counsel's attack of the victim's credibility, the judge noted

In defense counsel's summation, he stated as a central theme that the victim had consensual sex with defendant and that when the victim learned of the defendant's engagement . . . the victim retaliated and made the abduction and rape allegations. Nonetheless, the defendant falsely represents that his trial counsel failed to argue that the victim wanted to be with him and that her jealousy resulted in her retaliation and fabrication of the offenses. As the State points out, the defendant's claim has no basis in fact.

In addressing Detective Bonanno's testimony, the judge explained

The defendant first alleges that despite the trial judge's request that his counsel remind him about a limiting instruction regarding Detective Bonanno's testimony, his counsel failed to ensure that such an instruction was given.

The State submits that there is no basis in the trial record to support defendant's allegation. The transcript of trial from December 7, 2006, shows that the [c]ourt addressed an objection by defense counsel regarding Detective [Bonanno's] testimony. The [c]ourt indicated that it was inclined to issue a limiting instruction at defendant's request. The transcript of the trial dated December 12, 2006, shows that the court did, in fact, revisit this matter. On December 12, 2006, during colloquy, the [c]ourt decided not to give any cautionary instruction. Based upon the representations of the assistant prosecutor, the [c]ourt found that the detective's testimony did have a basis in fact. That is, contrary to defendant's argument, the [c]ourt readdressed this matter, reversed its prior inclination, and ultimately ruled against defendant. Accordingly, the defendant has not supported his assertion of ineffective assistance.

The judge rejected defendant's argument that the cumulative impact of the alleged trial errors rose to the level of ineffective assistance of counsel to warrant granting PCR, and concluded that defendant could not "show that he did not have effective assistance of counsel or that errors during the trial, individually or in the aggregate, deprived him of a fair trial."

Further, the judge rejected defendant's assertion that he was denied effective assistance of appellate counsel. Noting that defendant challenged the effective assistance of appellate counsel by essentially relying on the same arguments advanced in relation to trial counsel, the judge determined that "the result must be the same." The judge observed that "appellate counsel's success in obtaining reversal . . . of the defendant's conviction for first-degree kidnapping . . . demonstrates that attorney's effective assistance."

Upon determining that an evidentiary hearing was not required because defendant failed to demonstrate a prima facie case of ineffective assistance of counsel, the judge entered an order denying defendant's petition and this appeal followed. In his counseled brief, defendant argues

POINT I DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED.

POINT II THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO EXERCISE NECESSARY CHALLENGES TO EXCUSE PROSPECTIVE JURORS.

In his pro se supplemental brief, defendant argues

POINT I TRIAL, APPELLATE AND PCR COUNSEL'S COLLECTIVE AND INDIVIDUAL ACTIONS/INACTIONS FELL OUTSIDE COMPETENT ASSISTANCE, WERE INEFFECTIVE AND SAID INCOMPETENCE AND DEFICIENT PERFORMANCES CAUSED THE DEFENDANT TO SUFFER PREJUDICE THEREBY. (NOT RAISED BELOW).

POINT II BOTH TRIAL AND PCR COUNSEL FAILED TO CHALLENGE VALIDITY OF ALLEGED OUTSTANDING ARREST WARRANT. (PARTIALLY RAISED BELOW).

POINT III ALL COUNSEL FAILED TO CHALLENGE TRUTH OF OFFICERS' ASSERTIONS.

POINT IV PETITIONER/MARTY ROSS WAS PREJUDICED AT TRIAL BY IRRELEVANT BAD ACTS OF OTHER-CRIMES EVIDENCE THAT SUGGESTED HE HAD COMMITTED OTHER CRIMES; THE TRIAL COURT ABUSED [ITS] DISCRETION BY [] WAITING SIX DAYS TO ATTEMPT TO CURE THIS MAJOR VIOLATION; AND INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT V TRIAL COUNSEL (AND PCR COUNSEL FAILED TO ADDRESS) FAILED TO CROSS-EXAMINE VICTIM-WITNESS, REGARDING MATERIAL COMPONENTS OF HER TESTIMONY, WHICH CONSISTED OF NUMEROUS INCONSISTENCIES.

POINT VI THE DEFENDANTS' [SIC] UNDERLYING CLAIM FOR SUPPRESSION OF THE EVIDENCE WAS MERITORIOUS AND THERE IS A REASONABLE PROBABILITY THAT THE VERDICT WOULD HAVE BEEN DIFFERENT ABSENT THE EXCLUDABLE EVIDENCE.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Tassini in his cogent and thorough written decision. We add only the following limited comments.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-part test of establishing that: (1) counsel's performance was deficient, and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment of the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698; accord, Fritz, supra, 105 N.J. at 58.

Whether an evidentiary hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. R. 3:22-10; State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-10(b) states, in pertinent part

A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial or appellate counsel under the Strickland/Fritz test. Like Judge Tassini, we find no merit to any of defendant's substantive claims, even if his petition was not procedurally barred. We also agree with Judge Tassini's determination that an evidentiary hearing was not warranted.

Affirmed.

1 The filing date of the Supreme Court's order denying defendant's petition for certification is February 2, 2012.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 A March 20, 2012, PCR petition filed by defendant was dismissed on November 15, 2012, for procedural deficiencies.

4 R. 3:22-12(a)(1) provides

Except as provided in paragraphs (a)(2), (a)(3), and (a)(4) of this rule, no petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.

5 R. 3:22-12(a)(3) provides

A petition dismissed without prejudice pursuant to R. 3:22-6A(2) because a direct appeal, including a petition for certification, is pending, shall be treated as a first petition for purposes of these rules if refiled within 90 days of the date of the judgment on direct appeal, including consideration of a petition for certification, or within five years after the date of the entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged.