STATE OF NEW JERSEY VS. RAMON RIVERA-FIGUEROA (12-05-0856, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3649-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAMON RIVERA-FIGUEROA,

Defendant-Appellant.
_______________________________

Submitted October 10, 2017 - Decided November 9, 2017

Before Judges Messano and Accurso.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 12-05-0856.

Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).

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

PER CURIAM

Defendant Ramon Rivera-Figueroa appeals from the denial of

his petition for post-conviction relief (PCR), contending he

established a prima facie case of ineffective assistance of
counsel requiring an evidentiary hearing. Because the trial

judge correctly determined the evidence insufficient to sustain

defendant's burden, we affirm.

Following a robbery committed with a co-defendant in which

the victim was struck in the head with a gun and stabbed several

times with a screwdriver, a grand jury indicted defendant on

charges of first-degree robbery, N.J.S.A. 2C:15-1; second-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A.

2C:58-4; second-degree possession of a weapon for unlawful

purposes, N.J.S.A. 2C:39-4a; fourth-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5d; third-degree possession of a

weapon for unlawful purposes, N.J.S.A. 2C:39-4d; second-degree

aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree

aggravated assault, N.J.S.A. 2C:12-1b(4); third-degree

aggravated assault, N.J.S.A. 2C:12-1b(2); fourth-degree

prohibited devices, N.J.S.A. 2C:39-3f; second-degree conspiracy,

N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; and third-degree

possession of a controlled dangerous substance, N.J.S.A. 2C:35-

10a(1).

Defendant pled guilty to first-degree robbery in exchange

for the State's agreement to recommend a sentence in the second-

degree range, subject to the periods of parole ineligibility and

supervision required by the No Early Release Act (NERA),

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N.J.S.A. 2C:43-7.2, and to dismiss the remaining charges. Judge

Pincus took defendant's plea and subsequently sentenced him to a

seven-year NERA term. Defendant appealed his sentence, which we

reviewed on a sentencing calendar, R. 2:9-11, and affirmed.

In his petition for post-conviction relief, defendant

claimed his plea counsel misled him as to his sentence exposure

by telling him "because of [his] lack of a prior record and

because of the four young children that [he] support[ed], that

the mitigating factors would be found in [his] favor," and he

"would be receiving a five year state prison sentence." Based

on his counsel's advice, defendant claimed he understood his

"open" plea would "allow the Judge to sentence [him] to five

years in prison, despite the State's objection." He further

claimed his counsel was ineffective for failing to investigate

and consider all defenses and by failing to argue all mitigating

factors at sentencing.

After hearing argument by assigned counsel, Judge Pincus

issued a comprehensive written opinion denying the petition on

the basis that defendant had failed to establish a prima facie

claim for relief. State v. Preciose, 129 N.J. 451, 462-64

(1992). The judge noted defendant had represented at the plea

hearing that he understood the plea agreement and the

consequences of his "open" plea. She nevertheless reviewed the

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plea forms with defendant and advised him that he "would be

sentenced in the second-degree range of five to ten years

subject to NERA instead of facing the maximum sentence of twenty

years subject to NERA for a first-degree charge." She found "no

suggestion by Petitioner that he expected to receive a sentence

of only five years subject to NERA" and "nothing to suggest that

trial counsel did not properly advise Petitioner of the plea

agreement and potential sentencing consequences as a result of

the plea agreement."

As to defendant's claim that his counsel failed to argue

all mitigating factors, the court found trial counsel "strongly

advocated for mitigating factors" and submitted "a detailed

sentencing memorandum . . . in which [he] argued for the lowest

sentence available in the second-degree range, five years

subject to NERA." The judge made clear she would not have found

the mitigating factors defendant claimed his trial counsel

should have argued, and she dismissed his claim that counsel had

failed to investigate defenses as a bald assertion unsupported

by any certification attesting to the facts such investigation

would have revealed. See State v. Cummings, 321 N.J. Super.

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

see also State v. Jones, 219 N.J. 298, 311-12 (2014).

On appeal, defendant presents the following arguments:

4 A-3649-15T4
 POINT I.

THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED AND THE MATTER REMANDED
FOR AN EVIDENTIARY HEARING BECAUSE THE PCR
COURT'S FINDINGS, WHICH WERE BASED ON THE
PLEA VOIR DIRE, THE PRESUMPTION OF TRIAL
COUNSEL COMPETENCY, AND THE FAVORABLE PLEA
BARGAIN, WERE INCONSISTENT WITH PRIMA FACIE
INEFFECTIVE ASSISTANCE OF COUNSEL STANDARDS.

POINT II.

THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED BECAUSE IT VIOLATED
DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.

We reject those arguments as without sufficient merit to

warrant discussion in a written opinion, R. 2:11-3(e)(2), and

affirm the denial of defendant's petition substantially for the

reasons set forth in Judge Pincus's February 19, 2016 cogent and

well-reasoned written opinion.

Affirmed.

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