STATE OF NEW JERSEY v. JAMES RIPPY

NOT FOR PUBLICATION WITHOUT THE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-4616-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAMES RIPPY,

     Defendant-Appellant.
___________________________

              Submitted October 26, 2017 – Decided November 20, 2017

              Before Judges Simonelli and Haas.

              On appeal from the Superior Court of New
              Jersey, Law Division, Middlesex County,
              Indictment   Nos.   02-09-1179, 08-03-0493,
              08-06-1064 and 08-06-1065.

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

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (David M. Liston,
              Assistant Prosecutor, of counsel and on the
              brief).

        Defendant James Rippy appeals from the February 19, 2016 Law

Division order, which denied his petition for post-conviction

relief (PCR) without an evidentiary hearing.                We affirm.
       Defendant was charged under Indictment No. 02-09-1179 with

second-degree burglary, 
N.J.S.A. 2C:18-2; first-degree robbery,


N.J.S.A.    2C:15-1;    second-degree     aggravated     assault,      
N.J.S.A.

2C:12-1(b)(2),     second-degree      possession    of    a   weapon    for    an

unlawful purpose, 
N.J.S.A. 2C:39-4(d); and fourth-degree unlawful

possession of a weapon, 
N.J.S.A. 2C:39-5(d).             The charges stemmed

from   defendant's     and   co-defendant   David   Rivera's     assault      and

robbery of the victim in the victim's apartment.

       Defendant was tried in absentia and convicted on all charges.

The trial court imposed a twenty-year term of imprisonment 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 his conviction and sentence.          We reversed and remanded

for a new trial.       State v. Rippy, No. A-6069-07 (App. Div. Dec.

14, 2010).

       On remand, defendant pled guilty under Indictment No. 02-09-

1179 to first-degree robbery. He also pled guilty under Indictment

No. 08-06-1064 to second-degree burglary, 
N.J.S.A. 2C:18-2; under

Indictment No. 08-06-1065 to first-degree robbery, 
N.J.S.A. 2C:15-

1;   and   under   Indictment   No.   08-03-0493    to    third-degree      bail

jumping, 
N.J.S.A. 2C:29-7.       In accordance with the plea agreement,

the court sentenced defendant to twenty-year terms of imprisonment

for each of the two first-degree robberies subject to NERA, a ten-


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year term for second-degree burglary, and a four-year term for

bail jumping.     The sentences were to be served concurrently with

one another.

     Defendant    appealed   and    the     State   cross-appealed.       Both

parties challenged the award of jail credits, and defendant also

argued that his sentence was excessive.             We affirmed in part and

remanded for resentencing limited to the calculation of jail and

gap time credits.    State v. Rippy, 
431 N.J. Super. 338, 356 (App.

Div. 2013).     Our Supreme Court denied defendant's petition for

certification.    State v. Rippy, 
217 N.J. 284 (2014).

     Defendant filed a PCR petition, arguing, in part, that trial

counsel in all of the indictments rendered ineffective assistance

by not challenging his identification based on the failure of the

police   to     follow   newly     issued     guidelines    regarding      the

administration of a photo array.             Defendant also argued that

counsel failed to file a motion to suppress a handgun found in a

gym bag in a hotel room he was sharing with his uncle, and advise

him of his right to return to New Jersey under the Interstate

Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15.

     In a February 19, 2016 order and written opinion, the PCR

judge denied the petition.       The judge found there was no evidence

the police ever conducted a photo array, and we never mentioned a

photo array in either of our opinions in defendant's prior appeals.


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     The PCR judge determined a motion to suppress would have been

futile.   The judge found that defendant's uncle rented the hotel

room they were sharing, the uncle consented to the search and

signed a consent form, and the uncle never disclaimed ownership

of the gym bag.     Lastly, the judge found defendant failed to

explain what right he had under the IAD or provide specific facts

pertaining to those rights.   The judge also found defendant failed

to demonstrate he would have opted to continue to trial had he

known of his IAD rights.    This appeal followed.

     On appeal, defendant raises the following contention:

     POINT I:     THE TRIAL COURT ERRED IN DENYING
                  THE DEFENDANT'S PETITION FOR [PCR]
                  WITHOUT     AFFORDING     HIM    AN
                  EVIDENTIARY    HEARING   TO   FULLY
                  ADDRESS HIS CONTENTION THAT HE
                  FAILED TO RECEIVE ADEQUATE LEGAL
                  REPRESENTATION      FROM      TRIAL
                  COUNSEL.

     The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing.    State v. Cummings, 
321 N.J.

Super. 154, 170 (App. Div.), certif. denied, 
162 N.J. 199 (1999).

Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a

prima facie claim of ineffective assistance, material issues of

disputed facts lie outside the record, and resolution of the issues

necessitates a hearing.    R. 3:22-10(b); State v. Porter, 
216 N.J.
 343, 354-55 (2013).    We review a judge's decision to deny a PCR

                                  4                          A-4616-15T2
petition without an evidentiary hearing for abuse of discretion.

State v. Preciose, 
129 N.J. 451, 462 (1992).

    To establish a prima facie claim of ineffective assistance

of counsel, the defendant

         must satisfy two prongs.      First, he must
         demonstrate that counsel made errors "so
         serious that counsel was not functioning as
         the 'counsel' guaranteed the defendant by the
         Sixth Amendment. An attorney's representation
         is deficient when it "[falls] below an
         objective standard of reasonableness."

              Second, a defendant "must show that the
         deficient    performance    prejudiced    the
         defense." A defendant will be prejudiced when
         counsel's errors are sufficiently serious to
         deny him "a fair trial."        The prejudice
         standard is met if there is "a reasonable
         probability    that,   but    for   counsel's
         unprofessional errors, the result of the
         proceeding would have been different."      A
         "reasonable probability" simply means a
         "probability    sufficient     to   undermine
         confidence in the outcome" of the proceeding.

         [State v. O'Neil, 
219 N.J. 598, 611 (quoting
         Strickland v. Washington, 
466 U.S. 668, 687-
         88, 
104 S. Ct. 2052, 2064, 
80 L. Ed. 2d 674,
         693, 698 (1984)).]

When a guilty plea is involved,

         [the Court has] explained that '[t]o set aside
         a guilty plea based on ineffective assistance
         of counsel, a defendant must show that (i)
         counsel's assistance was not "within the range
         of competence demanded of attorneys in
         criminal cases;" and (ii) "that there is a
         reasonable probability that, but for counsel's
         errors, [the defendant] would not have pled
         guilty and would have insisted on going to
         trial."'

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          [State v. Nuñez-Valdéz, 
200 N.J. 129, 139
          (2009) (last two alterations in original)
          (quoting State v. DiFrisco, 
137 N.J. 434, 457
          (1994)).]

     "[I]n order to establish a prima facie claim, [the defendant]

must do more that make bald assertions that he was denied the

effective assistance of counsel.        He must allege facts sufficient

to   demonstrate    counsel's     alleged      substandard   performance."

Cummings, supra, 
321 N.J. Super. at 170.              The defendant must

establish, by a preponderance of the credible evidence, that he

is entitled to the required relief.         State v. Nash, 
212 N.J. 518,

541 (2013).

     We have considered defendant's contention in light of the

record and applicable legal principles and conclude it is without

sufficient merit to warrant discussion in a written opinion.              R.

2:11-3(e)(2).    We discern no abuse of discretion in the denial of

defendant's   PCR   petition    without   an   evidentiary   hearing,   and

affirm substantially for the reasons set forth in the PCR judge's

written opinion.     We are satisfied that defendant received the

effective assistance of counsel on all indictments.

     Affirmed.




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