STATE OF NEW JERSEY v. JULIO RAMOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIO RAMOS, a/k/a JULIO A.

RAMOS, a/k/a JULIO RAMOS

HERNANDEZ, a/k/a JULIO A.

RAMOS HERNANDEZ, a/k/a ANGEL P.

HERNANDEZ,

Defendant-Appellant.

________________________________

Submitted May 5, 2014 Decided May 22, 2014

Before Judges Parrillo and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-10-2509.

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Joshua D. Detzky, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Julio Ramos appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Following a day-long surveillance and several intercepted telephone calls conducted by law enforcement officers from the Monmouth County Prosecutor's Office in conjunction with the Drug Enforcement Administration, defendant was apprehended in a Range Rover vehicle. After being informed of the pending narcotics investigation, defendant provided written consent to a search of his vehicle, which uncovered fifteen kilograms of cocaine. Defendant also provided consent to search his residence, where $4,540.00, a Ruger-model handgun, a digital scale and over a one-half ounce of crack cocaine were recovered.

Defendant was indicted on nine counts of various drug and weapons-related offenses. Pursuant to a negotiated agreement, defendant pled guilty to one count of second-degree conspiracy, N.J.S.A. 2C:5-2, and one count of first-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(1), in exchange for the State's dismissal of the balance of the indictment and recommendation of a twelve-year custodial term with a fifty-four month period of parole ineligibility. At the plea hearing, defendant admitted that from approximately January 19, 2007 to May 30, 2007, he conspired with multiple individuals to distribute cocaine in Essex, Monmouth and Union counties. Satisfied that the guilty plea was entered freely and knowingly, the court accepted the plea. Defendant was then sentenced in accordance with the negotiated agreement and under the Brimage guidelines.1

Defendant did not file a direct appeal. Instead he filed a timely PCR petition in which he alleged plea counsel was ineffective for failing to file a motion to suppress and for coercing defendant into pleading guilty. Following argument, the PCR court denied defendant's petition. In a five-page letter opinion accompanying his August 27, 2012 order, Judge Mullaney explained his reasoning:

Here, the searches of the vehicle and [defendant's] home were conducted pursuant to a signed consent to search form. Established case law is clear that where a defendant is read a consent form and the defendant signs said form, consent is voluntary and knowing, and therefore, valid. With no evidence of coercion, the reading and signing of a consent to search form provides sufficient evidence of voluntariness and knowledge of one's rights to validate a warrantless search. Coercion requires a showing of police misconduct or misrepresentation. Here, [defendant] fails to provide one scintilla of evidence of any police coercion.

Further, [defendant] fails to provide any shred of proof or argument supporting his claim that counsel threatened him into taking this plea agreement. Rather, the transcript is clear that at both his plea and sentencing[,] he speaks to his satisfaction with counsel. [Defendant] sets forth no argument as to why he now has a sudden change of heart.

[(citations omitted).]

On appeal, defendant argues:

SINCE THE DEFENDANT MADE OUT A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, AN EVIDENTIARY HEARING WAS REQUIRED.

It is 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 but for counsel's deficiency, he would not have pled guilty and would have insisted on going to trial. State v. Gaitan, 209 N.J. 339, 351 (2012), cert. denied, U.S. ____, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); see also Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 208-10 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); State v. Fritz, 105 N.J. 42, 58-59 (1987). Moreover, a defendant asserting a claim of ineffective assistance of counsel based on his attorney's failure to file a suppression motion must not only satisfy both prongs of the Strickland test, but also must prove that the motion to suppress would have been granted had it been filed. State v. Goodwin, 173 N.J. 583, 597 (2002); State v. Fisher, 156 N.J. 494, 501 (1998).

In this regard, an evidentiary hearing should not be granted unless the defendant establishes a prima facie claim in support of his PCR petition. State v. Preciose, 129 N.J. 451, 462-63 (1992). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); State v. Marshall, 148 N.J. 89, 158 (explaining that where a defendant's allegations are "too vague, conclusory, or speculative[,]" an evidentiary hearing need not be granted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); see also R. 3:22-10(c).

Governed by these standards, we are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test. Simply stated, defendant has failed to advance any basis, legal or factual, to support the filing of a suppression motion, much less demonstrate its success. Defendant's belated claim that he was "coerced" into giving his consent to search is a bald assertion unsupported in the record and therefore insufficient to satisfy his burden of establishing a prima facie claim. Similarly unfounded is defendant's bare allegation that plea counsel "pressured and threatened [him] to take the plea offer," a claim not only belied by the sworn plea colloquy but also by the extremely favorable plea agreement struck by counsel, significantly limiting defendant's sentencing exposure. Consequently, we affirm substantially for the reasons stated in Judge Mullaney's August 27, 2012 written opinion.

Affirmed.

1 State v. Brimage, 153 N.J. 1 (1998).