STATE OF NEW JERSEY v. JAVIER RAMIREZ

NOT FOR PUBLICATION WITHOUT THE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.

JAVIER RAMIREZ,

Defendant-Appellant.

________________________________

Submitted May 6, 2014 Decided June 6, 2014

Before Judges Sabatino and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-10-0976.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Javier Ramirez appeals the trial court's denial of his petition for post-conviction relief ("PCR") without an evidentiary hearing. We affirm.

Defendant was convicted at a 2005 jury trial of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), as a lesser included offense on count one of his indictment, and second-degree attempted sexual assault, N.J.S.A. 2C:5-1, on count four. The jury found defendant not guilty on two other charges presented at trial, specifically counts two (terroristic threats) and three (criminal restraint). The trial court sentenced defendant to a ten-year term with an eighty-five percent period of parole ineligibility on count four, and a concurrent eighteen-month sentence on count one. We upheld defendant's conviction on direct appeal, except for a remand to have the trial court clarify the basis for the ten-year sentence. State v. Ramirez, No. A-4521-05 (App. Div. Oct. 17, 2007). The Supreme Court denied certification. 194 N.J. 270 (2008).

The State's proofs that resulted in defendant's conviction are set forth in detail in our October 2007 unpublished opinion, and only need to be summarized here. Defendant, who was thirty years old at the time of his offenses, wanted to have sex with the eighteen-year-old female victim, a friend of the family. He took her out in his car, and they smoked a marijuana blunt together and had a few drinks at a bar. They left the bar, and defendant parked his car on the side of the road. He then pulled down his pants and her pants and forced himself on top of her, striking her when she resisted him. The victim continued to resist him. As a diversionary measure, she offered to perform fellatio on him, which defendant accepted. The victim then managed to flee from the car and run away to safety.

In his PCR application, defendant contended that both his trial counsel and his counsel on direct appeal were constitutionally ineffective in not pursuing a defense of renunciation of criminal purpose, N.J.S.A. 2C:5-1(d), on count four. After hearing oral argument on that claim, the trial court dismissed the petition, in a written opinion issued by the same judge who had presided over defendant's trial.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

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

B. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HIS FAILURE TO PRESENT THE DEFENSE OF RENUNCIATION WITH RESPECT TO THE CHARGE OF ATTEMPTED SEXUAL ASSAULT ARISING OUT OF COUNT IV, AND TO REQUEST THE TRIAL COURT SO INSTRUCT THE JURY.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.

Defendant claims in his brief that he stopped trying to force the victim to have intercourse with her once she gave him oral sex. He contends that renunciation could have been a viable theory at trial, since the jury acquitted him on count one, which had charged him with second-degree sexual assault involving an act of penetration, N.J.S.A. 2C:14-2(c)(1), and instead found him guilty of the lesser-included offense of criminal sexual contact. He surmises that the jury did not believe portions of the victim's account, which, he contends, may have provided him with a chance for acquittal on count four if renunciation had been argued by his counsel and charged to the jury by the judge. The PCR judge rejected this far-fetched supposition, and so do we.1

We agree with the trial judge that there was no realistic chance that a defense of renunciation would have succeeded in this case. Such a defense requires that the situation manifest "a complete and voluntary renunciation of [the defendant's] criminal purpose." N.J.S.A. 2C:5-1(d); see also State v. Alston, 311 N.J. Super. 113, 121 (App. Div. 1998). "To be complete the abandonment [of the criminal conduct] must be permanent, not temporary or contingent." Alston, supra, 311 N.J. Super. at 121-22. In addition, to satisfy the element of voluntariness, the abandonment "must reflect a change in the defendant's purpose or a change of mind that is not influenced by outside circumstances." Id. at 121. Neither permanency nor voluntariness is indicated here.

As the trial judge aptly observed, defendant "stopped his forceful advances only after the victim relented to performing oral sex in an effort to placate the [d]efendant's aggression." The victim's suggestion that she perform fellatio on defendant functioned as a stalling device, and did not completely cause defendant to voluntarily and permanently abandon his clear ultimate objective to force the victim to have vaginal intercourse.

The jury's acquittal on count one of the charge of sexual assault and the guilty verdict on the lesser included offense of criminal sexual contact does not signify disbelief in the victim's account that she engaged in the oral sex to divert defendant from his violent attempts to force her to have intercourse. The lesser included offense verdict on count one is consistent with the State's position that such oral sex did occur, even if that particular act did not occur as the result of coercion or physical force amounting to an assault. The circumstances on the whole simply would not have supported a defense of abandonment, even if it had been asserted.

We discern no necessity for the trial court to have conducted an evidentiary hearing on defendant's PCR petition. Defendant did not present a prima facie case of his counsel's ineffectiveness to warrant such a hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992). There is no reasonable basis to conclude that either defendant's trial or appellate counsel were deficient in their professional efforts, or that they caused defendant any likely prejudice. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987). Indeed, trial counsel succeeded in fending off several counts charged in the indictment, and thereby reduced defendant's sentencing exposure.

1 The PCR judge separately ruled that defendant's petition was procedurally barred under Rule 3:22-4. Because we are readily convinced that the petition was substantively deficient, we need not address the procedural issue.