STATE OF NEW JERSEY v. RAHEEM A. PAMPLIN

NOT FOR PUBLICATION WITHOUT THE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-1968-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RAHEEM A. PAMPLIN, a/k/a
RASHEEM MCAIR and TREMPLIN
PAMPLIN,

     Defendant-Appellant.
_________________________________

              Submitted April 12, 2018 – Decided July 12, 2018

              Before Judges Rothstadt and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment Nos.
              07-12-4002 and 08-01-0126.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Charles P. Savoth, III,
              Designated Counsel, on the briefs).

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Matthew
              E.    Hanley,   Special    Deputy    Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM
     Defendant appeals from the October 21, 2016 order of the

trial court denying his petition for post-conviction relief (PCR)

without granting an evidentiary hearing.       He argues he established

"a prima facie case of ineffective assistance of counsel" "under

the two-pronged test set forth in Strickland [v. Washington, 
466 U.S. 668, 687 (1984)]" based on "his trial counsel's failure to

file a severance motion and consolidation motion" for his three

indictments prior to his first trial.       He asserts that because his

co-defendant "refused to enter into a plea deal," a motion to

sever "would have saved [him] from trial, while a consolidation

motion would have reduced his overall sentence or increased his

chances of negotiating a better plea deal overall."             We disagree

and affirm.

     We glean the following facts from the record.              On December

11, 2007, an Essex County grand jury returned Indictment No. 07-

12-4002    (the    first   indictment),   charging   defendant     and   co-

defendant Quadir Graham with third-degree conspiracy, 
N.J.S.A.

2C:5-2    (count   one);   third-degree   possession   of   a    controlled

dangerous substance, 
N.J.S.A. 2C:35-10(a)(1) (count two); third-

degree possession of a controlled dangerous substance with intent

to distribute, 
N.J.S.A. 2C:35-5(a)(1), (b)(3) (count three); and

third-degree possession of a controlled dangerous substance with



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intent to distribute within 1000 feet of a school zone, 
N.J.S.A.

2C:35-7 (count four).

     The following year, on January 11, 2008, another Essex County

grand     jury    returned   Indictment      No.    08-01-0126     (the      second

indictment), charging defendant with third-degree possession of a

controlled dangerous substance, 
N.J.S.A. 2C:35-10(a)(1) (count

one); third-degree possession of a controlled dangerous substance

with intent to distribute, 
N.J.S.A. 2C:35-5(a)(1), (b)(3) (count

two);   and      third-degree    possession   of     a    controlled   dangerous

substance with intent to distribute within 1000 feet of a school

zone, 
N.J.S.A. 2C:35-7 (count three).

     While the Essex County indictments were pending, on December

23, 2008, a Bergen County grand jury returned Indictment No. 08-

12-2231 (the third indictment), charging defendant with second-

degree possession of a controlled dangerous substance with intent

to distribute, 
N.J.S.A. 2C:35-5(a)(1), (b)(2) (count one); second-

degree employing a juvenile in a drug distribution scheme, 
N.J.S.A.

2C:35-6 (count two); second-degree possession of a firearm during

a drug offense, 
N.J.S.A. 2C:39-4.1(a) (count three); and second-

degree possession of a firearm for an unlawful purpose, 
N.J.S.A.

2C:39-4(a) (count four).

     On    March    5,   2009,   following    a    jury   trial   on   the   first

indictment, defendant was convicted on count two, and the jury

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hung on the remaining counts. On April 13, 2009, defendant entered

a negotiated guilty plea to count two of the second indictment

pursuant to a plea agreement wherein the State agreed to dismiss

the remaining charges in both the first and second indictments.

On September 23, 2009, prior to sentencing on the first two

indictments, defendant was tried in absentia by a jury and found

guilty on all counts in the third indictment.   On March 26, 2010,

defendant was sentenced on the third indictment to an aggregate

extended term sentence of thirty-six years with thirteen-and-one-

half-years of parole ineligibility.   Thereafter, on September 13,

2011, defendant was sentenced to a four-year term of imprisonment

each on the first and second indictments, to run concurrent with

each other and concurrent with the third indictment.

     Defendant's convictions and sentences on the first and second

indictments were affirmed on appeal in our unpublished opinion,

State v. Pamplin, No. A-1582-12 (App. Div. Sept. 22, 2014), which

we incorporate by reference.     As to the third indictment, we

affirmed the convictions but remanded for resentencing in our

unpublished opinion, State v. Pamplin, No. A-1008-10 (App. Div.

Sept. 4, 2012), which we also incorporate by reference.   We later

affirmed the aggregate twenty-seven-year term of imprisonment with

thirteen-and-one-half years of parole ineligibility imposed at the



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resentencing      hearing   on   our   Excessive       Sentence      Oral   Argument

calendar, R. 2:9-11, by order filed August 29, 2013.

      Defendant filed a petition for PCR on the third indictment

alleging,    among    other      things,    that       his   trial     counsel    was

ineffective for failing "to move to [c]onsolidate Bergen [County]

charges with Essex [County] matters resulting in a higher aggregate

sentence and extended term."               The PCR court rejected all of

defendant's arguments without granting an evidentiary hearing, and

we affirmed in an unpublished opinion.                 State v. Pamplin, No. A-

3581-14 (App. Div. Aug. 25, 2017).

      On June 16, 2015, defendant filed a timely pro se petition

for PCR on the first and second indictments, which is the subject

of this appeal.        Defendant alleged that his trial counsel was

ineffective for failing to file a "motion for [c]onsolidation

pursuant     to      [Rule]      3:25A-1,         of     [his]       multi[-]county

indictments/offenses, resulting in higher overall sentence(s)."

Defendant's assigned PCR counsel filed a supplemental PCR petition

and   supporting     brief,   arguing      that    trial     counsel    "failed     to

consolidate [d]efendant's Bergen County matter with the Essex

County matter even after [d]efendant requested that it be done."

According to PCR counsel, defendant was prejudiced because it

placed defendant "in a poor position to negotiate pleas in both

cases."     PCR counsel also submitted a supporting affidavit in

                                        5                                    A-1968-16T3
which defendant averred that he requested his trial counsel to

file a motion to consolidate, but he failed to do so.    Defendant

also stated that trial counsel "failed to discuss any motions with

[him] and did not file a [m]otion to [s]uppress or a [m]otion for

[s]everance."

     On October 21, 2016, following oral argument, the PCR court

rejected defendant's arguments and denied the petition, concluding

defendant failed to satisfy the Strickland test to warrant PCR

relief or an evidentiary hearing.       Specifically, as to trial

counsel's failure to file a consolidation motion, relying on State

v. Rountree, 
388 N.J. Super. 190, 213 (App. Div. 2006), the court

acknowledged that defendant satisfied the first Strickland prong.

However, the court found that the second Strickland prong had not

been met because, had a consolidation motion "been filed[,] it

would [not] have affected [defendant's] ability to resolve the

issue by plea agreement" so "that the result would have been

different."     To support its finding, the court pointed out that

defendant "ha[d] not shown that he was prevented from obtaining a

plea in the Bergen County matter," and "the sentence in Essex

County was run concurrent to the sentence in Bergen County."

     Turning to defendant's claim that his trial counsel was

ineffective for failing to file a severance motion, citing State

v. Robinson, 
253 N.J. Super. 346, 364 (App. Div. 1992), the PCR

                                  6                        A-1968-16T3
court   noted   that    while   Rule   3:15-2(b)   provided   relief   from

prejudicial joinder, there was "a general preference to try co-

defendants jointly," and under State v. Brown, 
170 N.J. 138, 160

(2001), "[d]anger by association [was] not enough to support a

motion to sever." The court determined there was "nothing . . . in

[the] record that indicate[d] the severance was . . . reasonable,

and the motion should have been filed" and found no prejudice from

trial counsel's failure to file a severance motion.             The court

entered a memorializing order on the same date and this appeal

followed.

     On appeal, defendant raises the following single point for

our consideration:

            IT WAS AN ABUSE OF DISCRETION FOR THE PCR COURT
            TO DENY DEFENDANT AN EVIDENTIARY HEARING.

     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. 1999).          Rather, trial courts should

grant evidentiary hearings only if the defendant has presented a

prima facie claim of ineffective assistance, material issues of

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

necessitate a hearing.       R. 3:22-10(b); State v. Porter, 
216 N.J.
 343, 355 (2013).       "Rule 3:22-10 recognizes judicial discretion to




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conduct such hearings."     State v. Preciose, 
129 N.J. 451, 462

(1992).

     A PCR court deciding whether to grant an evidentiary hearing

"should view the facts in the light most favorable to a defendant

to determine whether a defendant has established a prima facie

claim."   Id. at 463.

               To establish a prima facie claim of
          ineffective assistance of counsel, a defendant
          must demonstrate the reasonable likelihood of
          succeeding under the test set forth in
          [Strickland, 
466 U.S.  at 694], and United
          States v. Cronic, 
466 U.S. 648 (1984), which
          [our Supreme Court] adopted in State v. Fritz,
          
105 N.J. 42, 58 (1987).

          [Ibid.]

     Under the Strickland standard, a defendant must make a two-

part showing, State v. O'Neil, 
219 N.J. 598, 610 (2014), by

demonstrating that trial counsel's performance was both deficient

and prejudicial.    State v. Martini, 
160 N.J. 248, 264 (1999).   The

performance of counsel is "deficient" if it falls "below an

objective standard of reasonableness" measured by "prevailing

professional norms."      Strickland, 
466 U.S.  at 687-88.         This

standard of "reasonable competence," Fritz, 
105 N.J. at 60, "does

not require the best of attorneys," State v. Davis, 
116 N.J. 341,

351 (1989), and the defendant must overcome a "strong presumption




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that counsel rendered reasonable professional assistance."              State

v. Parker, 
212 N.J. 269, 279 (2012).

       "[A] defendant must also establish that the ineffectiveness

of his attorney prejudiced his defense" by showing "a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different."              Id. at 279-

80   (quoting   Strickland,   
466 U.S.   at   694).       "A    'reasonable

probability' simply means a 'probability sufficient to undermine

confidence in the outcome' of the proceeding."           O'Neil, 
219 N.J.

at 611 (quoting Strickland, 
466 U.S. at 694).

       "Unless a defendant makes both showings, it cannot be said

that   the   conviction . . . resulted     from    a    breakdown     in    the

adversary process that renders the result unreliable."             Fritz, 
105 N.J. at 52 (alteration in original) (quoting Strickland, 
466 U.S.

at 687).     Defendant bears the burden of proving both prongs of an

ineffective assistance of counsel claim by a preponderance of the

evidence.     State v. Gaitan, 
209 N.J. 339, 350 (2012).

       Applying these principles, we conclude that the PCR court

properly     denied   defendant's   petition      without        granting    an

evidentiary hearing.      Assuming that a motion for consolidation

would have been granted as authorized by State v. Pillot, 
115 N.J.
 558, 568 (1989), as the PCR court noted, defendant presented no

evidence of a plea offer or that he was prevented from accepting

                                    9                                 A-1968-16T3
a plea offer in the Bergen County case for any reason other than

his own conduct.    Indeed, defendant failed to appear for trial on

the Bergen County indictment and was tried in absentia.         Further,

other than "bald assertions," which are insufficient for PCR,

Cummings, 
321 N.J. Super. at 170, defendant presented no evidence

that he would have received a more favorable overall plea offer

if the cases had been consolidated.          The Bergen County case was

clearly the most serious of the three, and defendant received

significantly less severe concurrent sentences in the Essex County

cases    despite   going   to   trial   on     the   first   indictment.1

"Defendant's ineffective-assistance arguments therefore fail to

meet the second Strickland prong, that is, failure to consolidate

did not likely make a difference."      Rountree, 
388 N.J. Super. at
 213.

       As to trial counsel's failure to file a motion to sever, it

is well established that "[i]t is not ineffective assistance of



1
  We note that ordinarily, in circumstances as those presented to
defendant in the first indictment, it is unlikely that the State
would have rebuffed defendant's offer to enter a negotiated guilty
plea conditioned upon incriminating his recalcitrant co-defendant
at trial. See, e.g., State v. Jaffe, 
220 N.J. 114, 116 (2014)
(State accepted defendant's guilty plea to one offense if he agreed
to testify against his co-defendants in exchange for a reduced
sentence); State v. Dalziel, 
182 N.J. 494, 498 (2005) (prosecutor
accepted defendant's negotiated guilty plea to one offense and
truthful testimony against co-defendant in exchange for dismissal
of all other charges).

                                  10                              A-1968-16T3
counsel for defense counsel not to file a meritless motion." State

v.   O'Neal,   
190 N.J.    601,   619    (2007).    As   we    explained     in

defendant's direct appeal of his first and second indictments,

defendant's conviction on the first indictment stemmed from police

observing defendant and co-defendant Graham engaged in a hand-to-

hand drug sale to an unidentified buyer, during which defendant

"act[ed] as a lookout for Graham" and after which police recovered

"fifteen decks of what was . . . later confirmed as heroin" and

"$518 from defendant" in a search incident to his arrest. Pamplin,

No. A-1582-12, slip op. at 2, 9.             As the PCR court noted, where

"much of the same evidence is needed to prosecute each defendant,

a joint trial is preferable."         State v. Sanchez, 
143 N.J. 273, 281

(1996)   (quoting    State    v.    Brown,   
118 N.J.   595,   605   (1990)).

Inasmuch as a severance motion would not have been successful,

defendant's trial attorney was not ineffective because he failed

to file one.      Moreover, given the concurrent sentences on the

Essex County indictments, defendant cannot show the requisite

prejudice to warrant PCR or an evidentiary hearing.

      Affirmed.




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