STATE OF NEW JERSEY VS. RICKY W. SESSOMS (09-05-1233, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0957-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICKY W. SESSOMS,

Defendant-Appellant.
_________________________________

Submitted April 5, 2017 – Decided May 23, 2017

Before Judges Alvarez and Lisa.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
09-05-1233.

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

Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (Melinda A. Harrigan,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
 Defendant, Ricky Sessoms, appeals from the June 1, 2015 order

denying his petition for post-conviction relief (PCR) and

declining to conduct an evidentiary hearing. Defendant is serving

an aggregate sentence of eight-years imprisonment with a five-year

parole disqualifier arising out of the sentences imposed on

September 23, 2011. More particularly, defendant was sentenced

to two counts of the indictment to which he pled guilty, Count

Seven, second-degree certain persons not to have weapons, N.J.S.A.

2C:39-7, for which he was sentenced to five-years imprisonment

with a mandatory five-year parole disqualifier, and Count Three,

third-degree possession with intent to distribute a controlled

dangerous substance, namely, marijuana, within 1,000 feet of

school property, N.J.S.A. 2C:35-7, on which he was sentenced to

an extended term pursuant to N.J.S.A. 2C:43-6f, of eight-years

imprisonment with a four-year parole disqualifier.

Defendant did not file a direct appeal. On October 15, 2013,

he filed a pro se PCR petition. He was subsequently assigned

counsel who filed a new verified petition and brief. After oral

argument, the court issued its order denying the petition and

declining to conduct an evidentiary hearing.

Defendant now appeals, arguing:

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 POINT I

THE LOWER COURT ERRED IN DENYING MR. SESSOMS'
PETITION FOR POST-CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING.

POINT II

THE PCR COURT ERRED IN DENYING MR. SESSOMS'S
CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE AT
SENTENCING.

We reject these arguments and affirm.

The charges against defendant arose out of an investigation

into drug activity in Atlantic City. On March 25, 2009, the

Atlantic City Police Department executed a search warrant at

defendant's home and found approximately fourteen ounces of

marijuana and .38 caliber handgun. Defendant's wife was alone at

home when the search occurred. Defendant was at work. The police

went to defendant's place of employment, informed him of the

results of their search, and placed him under arrest. The police

administered Miranda1 warnings to defendant. Defendant

volunteered to the police that the "stuff" found in his home was

his, that his wife did not know about it, had nothing to do with

it, and that she should not be implicated. He said he would give

a statement to that effect.

1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

3 A-0957-15T3
 When they arrived at the police station, however, defendant

said he wanted to speak to his attorney first. The police honored

defendant's position and provided him with his cell phone so he

could call his attorney. Apparently the attorney was in court and

unavailable to speak to defendant. Defendant was placed in a

holding cell.

Because defendant declined to give a recorded statement, the

police did arrest defendant's wife and brought her to the

stationhouse. Further events transpired, including some

interaction between defendant and his wife. In the end, after

being re-administered his Miranda rights and waiving them,

defendant did give an inculpatory statement.

Defendant filed a motion seeking to suppress the statement

he gave to the police. After an evidentiary hearing, Judge Charles

Middlesworth, Jr. issued a comprehensive Memorandum of Decision

on September 11, 2009, denying the motion.2

Subsequently, through counsel, defendant negotiated a plea

agreement, by which he would plead guilty to the two counts we

previously mentioned for an aggregate sentence of eight-years

2
We have not been provided with a transcript of the Miranda
hearing. The information regarding the search, the arrest of
defendant and his wife, and the events that occurred at the
stationhouse are derived from Judge Middlesworth's written opinion
of September 11, 2009, denying defendant's Miranda motion.

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imprisonment with a five-year parole disqualifier. The remaining

five counts of the indictment would be dismissed. Defendant's

overall exposure on these charges was thirty-years imprisonment.

Defendant had two prior indictable convictions, both for drug

offenses. One of them, for possession of cocaine with intent to

distribute, resulted in a five-year state prison sentence. The

other, for conspiracy to possess marijuana with intent to

distribute, resulted in a probationary sentence, subject to three-

hundred-sixty-four days incarceration in the county jail.

Defendant entered his guilty plea before Judge Middlesworth

on December 7, 2010. He was sentenced, in accordance with the

plea agreement, by Judge Mark H. Sandson on September 23, 2011.

I.

In his first point, defendant contends that his trial attorney

was constitutionally ineffective at the plea hearing for failing

to preserve defendant's right to appeal the denial of his Miranda

motion. Defendant argues that he presented sufficient evidence

to establish a prima facie case of ineffective assistance of

counsel in this regard, and that he should have been afforded an

evidentiary hearing.

Rule 3:22-2 lists the cognizable grounds for PCR, including

the "[s]ubstantial denial in the conviction proceedings of

defendant's rights under the Constitution of the United Sates or

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the Constitution or laws of the State of New Jersey." Both

Constitutions guarantee the accused "the right to the effective

assistance of counsel" in criminal proceedings against them.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,

2063, 90 L. Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42,

58 (1987) (adopting Strickland's ineffective assistance standard).

To establish a claim under the Strickland/Fritz test, a

defendant must satisfy two prongs. First, he must demonstrate

that his counsel made errors so serious that counsel was not

functioning in accordance with the constitutionally guaranteed

standard; second, defendant must show that but for the deficient

conduct, a reasonable probability exists that the result of the

proceeding would have been different. State v. O'Neil, 219 N.J.

598, 611 (2014). In the context of asserted ineffective assistance

at a plea proceeding, the second prong focuses on whether the

asserted ineffective performance affected the outcome of the plea

process, namely, defendant must show that a reasonable probability

exists that, but for counsel's errors, he would not have pled

guilty and would have insisted on going to trial. Hill v.

Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370-71, 88 L. Ed.

2d 203, 209-11 (1985).

Evidentiary hearings may be granted on a PCR petition if the

defendant establishes a prima facie case of ineffective assistance

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

hearings are only required if resolution of disputed issues are

"necessary to resolve the claims for relief." R. 3:22-10(b).

Hearings shall not be granted if they "will not aid the court's

analysis of the defendant's entitlement to post-conviction

relief," or "if the defendant's allegations are too vague,

conclusory or speculative." R. 3:22-10(e)(1) and (2). In order

to establish a prima facie case, a defendant must demonstrate a

reasonable likelihood that he or she will ultimately succeed on

the merits. State v. Marshall, 148 N.J. 89, 158, cert. denied,

522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Judge Sandson, who presided over the PCR proceeding,

concluded that defendant failed to make the required prima facie

showing. He initially found that while defendant now claims he

wanted to appeal the denial of his Miranda motion, there is no

evidence supporting the contention. Further, he found that

defendant presented no evidence that defendant ever informed his

attorney of his desire to appeal the denial of the Miranda motion.

Our review of the record confirms this assessment.

"Generally, a defendant who pleads guilty is prohibited from

raising, on appeal, the contention that the State violated his

constitutional rights prior to the plea." State v. Crawley, 149

N.J. 310, 316 (1997); see also Tollett v. Henderson, 411 U.S. 258,

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267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973). Three

exceptions to the waiver of a defendant's right to appeal have

been codified in New Jersey's court rules. State v. Knight, 183

N.J. 449, 471 (2005). Relevant to this appeal is Rule 3:9-3(f),

which allows a defendant to "enter a conditional plea of guilty

reserving on the record the right to appeal from the adverse

determination of any specified pretrial motion."

The standard plea form makes provision for this exception.

Question 4e asks: "Do you further understand that by pleading

guilty you are waiving your right to appeal the denial of all

other pretrial motions except the following:," which is followed

by three long blank lines. Defendant circled "No" following the

question. However, nothing was filled in on the lines.

In the PCR proceeding, defendant contended that his negative

answer was an indication that he intended to appeal denial of the

Miranda motion. However, that would have required filling in the

relevant information on one of the blanks. Had that been done,

the prosecutor might well have refused to join in the plea

agreement. Typically, reservation of such a right would be a

major factor in the negotiations and would have to be expressly

contained in the plea form and placed upon the record in the plea

colloquy with the clear assent of both parties.

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 Defendant further points out that, at the time of his

sentencing, he indicated on the "Notice of Right to Appeal" form

that he wished to appeal. He contends that this further evidenced

his intent to appeal denial of his Miranda motion. However, that

document refers generally to an intent to appeal from defendant's

judgment of conviction. It contains no indication of his wish to

appeal from the denial of his Miranda motion. Further, that

document was completed many months after defendant's plea.

Importantly, in the plea colloquy, defendant acknowledged

that he went over all the questions with his attorney and

understood them, and that he was not promised anything that was

not written down in the plea forms.

Defendant has very generally stated that he believes his

attorney must have known that he intended to appeal denial of the

Miranda motion. However, he has filed no evidence to support that

contention, such as an affidavit or certification stating that he

told his attorney he had such an intention. Such bald assertions,

unsupported by an affidavit or certification specifying particular

facts are not sufficient to demonstrate counsel's alleged

substandard performance. State v. Cummings, 321 N.J. Super. 154,

170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). Merely

raising allegations of ineffective assistance, without competent

evidence sufficient to make the required prima facie showing, does

9 A-0957-15T3
not entitle a defendant to an evidentiary hearing. Id. at 170.

The first prong of the Strickland/Fritz test was not established

here.

As we have stated, the second prong, in the context of a

guilty plea, requires a showing that, but for the asserted

ineffective assistance of counsel, defendant would not have pled

guilty. Defendant makes that bald and generalized assertion in

his PCR submission. However, it is backed up by no facts to

support it.

Indeed, he acknowledged at the time of the plea and continues

to acknowledge that, if he goes to trial, he is exposing himself

to the possibility of up to thirty-years imprisonment, with parole

disqualifiers required on a number of the offenses. But we need

not merely infer that defendant does not really want to go to

trial, for he has expressly said so. At oral argument in the PCR

proceeding, he said this to the judge:

And although -- I mean if you -- if I may, I'm
saying, you know, all I'm trying to do is get
a renegotiated plea of a five with a three,
you know, with all my credits, if possible
from your Honor.

Defendant has expressed, in his own words, why the second prong

cannot be met.

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 II.

In his second point, defendant argues that his trial counsel

was constitutionally deficient at his sentencing hearing because

he failed to call to the attention of the court certain mitigating

factors. Particularly, he argues that his counsel should have

urged the court to find the applicability of mitigating factors

under N.J.S.A. 2C:44-1b(7) and (9), namely, that "[t]he defendant

has no history of prior delinquency or criminal activity or has

lead a law-abiding life for a substantial period of time before

the commission of the present offense," and that "[t]he character

and attitude of the defendant indicate that he is unlikely to

commit another offense." He seeks a remand for a new sentencing

hearing.

Judge Sandson rejected this argument, and so do we. As we

have stated, defendant had two prior indictable convictions, both

for drug offenses. His drug activity in this case was, by his

admission, an ongoing course of drug activity, not a single

aberrant event. Defendant was also listed on the Domestic Violence

registry. At sentencing, the judge found three aggravating factors

to apply, namely, N.J.S.A. 2C:44-1a(3), the risk that defendant

would commit another offense, (6) the extent of defendant's prior

criminal record and the seriousness of his prior offenses, and (9)

11 A-0957-15T3
the need for deterrence. He found no mitigating factors, and

found a preponderance of aggravating factors.

Had the mitigating factors defendant now proposes been urged,

it is very doubtful that the judge would have found them

applicable. If he did, he would have likely accorded them very

minimal weight. The aggravating factors would have still

outweighed mitigating factors, and the sentence would not have

changed. This was a plea bargained sentence and no basis has been

shown for a probability that the result would have been different

had counsel done what defendant now says he should have done

differently at the sentencing hearing.

Affirmed.

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