STATE OF NEW JERSEY v. RONALD P. CHERRY

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1003-18T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

RONALD P. CHERRY,

     Defendant-Appellant.
________________________

                   Submitted February 3, 2020 – Decided February 13, 2020

                   Before Judges Sabatino and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 09-04-0327.

                   Joseph E. Krakora, Public Defender, attorney for appellant
                   (John Vincent Molitor, Designated Counsel, on the briefs).

                   Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Meredith L. Balo, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      Defendant Ronald P. Cherry appeals the trial court's August 10, 2018

order denying his petition for post-conviction relief ("PCR") without an

evidentiary hearing. We affirm.

      Defendant was charged in this Union County case with the armed robbery

of an elderly man in Plainfield with two accomplices on August 25, 2008. After

they broke into the residence, the perpetrators attacked the victim, stabbed him,

beat him in the head with a hammer, torched his genitals and chest, and then left

the house with his credit cards and cash. A latex glove with defendant's DNA

was found in one of the rooms of the victim's house. Two days later, on August

27, 2008, defendant allegedly took part in the burglary of a house in Scotch

Plains. Video surveillance showed defendant and his accomplices making

purchases with credit cards they had stolen from the victims.

      On his trial date in March 2011, defendant pled guilty to first-degree

armed robbery concerning the Plainfield incident.       In exchange, the State

recommended an eighteen-year sentence and dismissal of the charges relating to

the Scotch Plains incident. Defendant then moved to withdraw his guilty plea

alleging, among other things, ineffective assistance of counsel.      The court

conducted a multi-day motion hearing in May and June 2012. The motion was

denied. Defendant was then sentenced in accordance with the plea agreement


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to an eighteen-year custodial term, subject to the parole ineligibility period

under the No Early Release Act, N.J.SA. 2C:43-7.2.

      Defendant appealed from the denial of his motion to withdraw his guilty

plea. In a December 29, 2014 unpublished opinion, we affirmed defendant's

conviction and sentence. State v. Cherry, No. A-0979-12 (App. Div. Dec. 29,

2014) (slip op. at 1). The Supreme Court dismissed defendant's petition for

certification for lack of prosecution.

      Defendant then filed the present PCR petition, again contending his

former counsel was ineffective. Among other things, defendant principally

claimed his counsel was ineffective in failing to secure, as part of the plea

agreement in this Union County case, the dismissal of other charges that had

been pending against him in Middlesex County. He contends his attorney

assured him the Middlesex charges would be dismissed as part of the

deal. Defendant also claimed his attorney misadvised him that he faced a

possible life sentence if he rejected the plea offer and was found guilty at

trial. In addition, defendant argued his attorney was ineffective in failing to

retain a DNA expert who, hypothetically, might have refuted the State's DNA

evidence.




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      Upon considering defendant's claims and oral argument, the PCR judge

rejected defendant's petition. The judge found no prima facie showing had been

made to justify an evidentiary hearing.     The judge issued a detailed written

decision on August 10, 2018, explaining his determination.

      The judge recognized the plea form for the Union County indictment did

happen to include a handwritten reference to the Middlesex charges. However,

the Middlesex charges were not mentioned during defendant's sworn plea

colloquy, in which the terms of the agreement were placed on the record. Nor

was the plea form co-signed by a prosecutor from Middlesex County. The judge

noted that the sentencing court reaffirmed with defendant that the Middlesex

indictments would not be included in the plea agreement. Defendant did not

respond to or question the sentencing court's statements in this regard. Having

considered the record, the PCR judge found no merit to defendant's claim that

he was misled by an alleged assurance that the Middlesex charges were being

dismissed.

      The PCR judge also found without merit defendant's argument that his

counsel improperly told him that he faced life in prison if convicted at trial. The

judge noted the plea transcript and the court's plea withdrawal decision

contradict defendant's claim. The judge found defendant was aware of his


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sentencing exposure, including an extended term the State would have requested

under  N.J.S.A. 2C:44-3(a) if he lost at trial.

      As to the alleged failure of defense counsel to review the DNA evidence

until a few days before trial, the judge found there was nothing in the record to

support defendant's claim that he was forced into taking the plea agreement

because of that. The judge noted the transcript showed that defendant stated

multiple times during his plea colloquy that he wanted to plead guilty. He

testified he was pleading guilty voluntarily.

      Moreover, defendant was aware of the State's inculpatory DNA evidence

when entering his guilty plea. During the withdrawal motion hearing, defense

counsel testified that his planned strategy if the case had gone to trial was to

cross-examine the State's expert regarding the handling of the DNA evidence.

Further, the State's case was not based solely on the DNA evidence. In any

event, defendant has not come forward with an affidavit or expert report opining

that the DNA evidence was unreliable.

      On appeal, defendant raises the following arguments:

            POINT I

            THIS COURT SHOULD REVERSE THE TRIAL
            COURT'S DECISION TO DENY THE
            DEFENDANT'S PETITION FOR


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            POSTCONVICTION RELIEF WITHOUT
            CONDUCTING AN EVIDENTIARY HEARING

            POINT II

            THE DEFENDANT'S PLEA COUNSEL WAS
            INEFFECTIVE FOR FAILING TO PREPARE TO
            CONTEST THE STATE'S DNA EVIDENCE

      We have considered these points in light of the well-settled two-prong

constitutional test set forth in Strickland v. Washington,  466 U.S. 668 (1984)

(requiring a demonstration of both (1) counsel's deficient performance; and (2)

actual prejudice resulting from that proven deficiency). Having done so, we

affirm the denial of defendant's PCR petition, substantially for the sound reasons

set forth in Judge William A. Daniel's written decision. Viewing the record

objectively, we are satisfied defendant has not made a prima facie showing under

the two prongs of Strickland. His claims are either belied by the record or

speculative. Because no prima facie showing of prejudicial ineffectiveness was

advanced, the PCR judge was not obligated to conduct an evidentiary

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

      Affirmed.




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