STATE OF NEW JERSEY VS. LENNY ROSS (12-11-2560, 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NOT FOR PUBLICATION WITHOUT THE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-4115-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LENNY ROSS, a/k/a RASHAAD R.
ROSS, LAENNY R. JR., LAENNY
R. ROSS and LAENNY R.
ROSS, JR.,

Defendant-Appellant.
____________________________

Submitted April 9, 2018 – Decided June 12, 2018

Before Judges O'Connor and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
12-11-2560.

Joseph E. Krakora, Public Defender, attorney
for appellant (Seon Jeong Lee, Designated
Counsel, on the brief).

Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (Mario C. Formica,
Deputy First Assistant Prosecutor, of counsel
and on the brief).

PER CURIAM
 After a jury was selected in his trial on an indictment

charging him with eleven crimes, including murder and various drug

and weapons offenses, defendant Lenny Ross pleaded guilty to first-

degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), in exchange

for the State's agreement to dismiss the remaining charges and not

seek an extended term sentence. The court imposed a thirty-year

sentence subject to the requirements of the No Early Release Act,

N.J.S.A. 2C:43-7.2. Defendant appealed his sentence and, after

hearing argument on the excessive sentencing calendar, R. 2:9-11,

we affirmed. State v. Ross, No. A-4886-13 (App. Div. Oct. 1,

2014) (slip op. at 1). The Supreme Court denied defendant's

petition for certification. State v. Ross, 223 N.J. 354 (2015).

In a timely-filed post-conviction relief (PCR) petition,

defendant alleged, among other things, that trial counsel was

ineffective by discouraging defendant from standing trial and

encouraging defendant to plead guilty, advising defendant he would

receive a fifteen-year sentence if he pleaded guilty to aggravated

manslaughter, failing to investigate and present arguments

supporting defendant's motion to withdraw his guilty plea, and

failing to present evidence supporting mitigating factors under

N.J.S.A. 2C:44-1(b) at sentencing. Defendant also asserted his

appellate counsel was ineffective by failing to make available

arguments on appeal.

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 The PCR court heard oral argument and, in a written opinion,

found defendant failed to establish a prima facie case of

ineffective assistance of counsel. The court entered an order

denying the PCR petition without an evidentiary hearing.

Defendant appealed, and presents the following argument for

our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING AN
EVIDENTIARY HEARING BECAUSE DEFENDANT HAS
ESTABLISHED A PRIMA FACIE CLAIM THAT BUT FOR
TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE IN
PREPARING FOR TRIAL AND MISADVICE ON THE
SENTENCE HE WOULD RECEIVE WITH THE OPEN PLEA
HE WOULD NOT HAVE PLED GUILTY IN THIS CASE.

We have considered the argument in light of the record and

applicable legal standards. We affirm.

We review the legal conclusions of a PCR court de novo. State

v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P.

v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). The de

novo standard of review applies to mixed questions of fact and

law. Ibid. Where, as here, an evidentiary hearing has not been

held, it is within our authority "to conduct a de novo review of

both the factual findings and legal conclusions of the PCR court

. . . ." Id. at 421.

The Sixth Amendment to the United States Constitution and

Article I, Paragraph 10 of the New Jersey Constitution guarantee

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a criminal defendant "the right to the effective assistance of

counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting

Strickland v. Washington, 466 U.S. 668, 686 (1984)). In

Strickland, the Court established a two-part test, later adopted

by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987),

to determine whether a defendant has been deprived of the effective

assistance of counsel. Strickland, 466 U.S. at 687. Under the

first prong of the Strickland standard, a petitioner must show

counsel's performance was deficient. Ibid. It must be

demonstrated that counsel's handling of the matter "fell below an

objective standard of reasonableness," id. at 688, and that

"counsel made errors so serious that counsel was not functioning

as the 'counsel' guaranteed the defendant by the Sixth Amendment,"

id. at 687.

Under the second prong of the Strickland standard, a

"defendant must show that the deficient performance prejudiced the

defense." Ibid. A defendant must demonstrate there is a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Id. at 694.

In the context of a PCR petition challenging a guilty plea

based on the ineffective assistance of counsel, the second prong

is established when the defendant demonstrates a "reasonable

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probability that, but for counsel's errors, [the defendant] would

not have pled guilty and would have insisted on going to trial,"

State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in

original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)),

and that "a decision to reject the plea bargain would have been

rational under the circumstances," Padilla v. Kentucky, 559 U.S.

356, 372 (2010).

A petitioner must establish both prongs of the Strickland

standard to obtain a reversal of the challenged conviction.

Strickland, 466 U.S. at 687; Nash, 212 N.J. at 542; Fritz, 105

N.J. at 52. A failure to satisfy either prong of the Strickland

standard requires the denial of a PCR petition. Strickland, 466

U.S. at 700.

Defendant argues the PCR court erred by finding he failed to

establish a prima facie case of ineffective assistance of his

trial counsel, and by denying his petition without an evidentiary

hearing. He contends trial counsel changed his mind about the

strength of the State's case following jury selection, encouraged

defendant to accept the State's plea offer, advised defendant he

would receive a fifteen-year sentence and pressured defendant to

plead guilty.

In our consideration of a PCR petition, we must "evaluate the

sufficiency of a belated claim of misadvice before granting a

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hearing. In so doing, [we] should examine the transcripts of the

plea colloquy and sentencing hearing[.]" State v. Gaitan, 209

N.J. 339, 381 (2012). "Courts should not upset a plea solely

because of post hoc assertions from a defendant about how he would

have pleaded but for his attorney's deficiencies. Judges should

instead look to contemporaneous evidence to substantiate a

defendant's expressed preferences." Lee v. United States, 137 S.

Ct. 1958, 1967 (2017) (emphasis in original). "Generally,

representations made by a defendant . . . concerning the

voluntariness of the decision to plead, . . . constitute a

'formidable barrier' which defendant must overcome." State v.

Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison,

431 U.S. 63, 74 (1977)). "That is so because [defendant's]

'[s]olemn declarations in open court carry a strong presumption

of verity.'" Ibid. (quoting Blackledge, 431 U.S. at 74.)

Defendant's claims are contradicted by the evidentiary

record. During his plea colloquy, defendant testified he was not

forced by anyone to plead guilty, understood he would be sentenced

between ten and thirty years, and that he reviewed the plea papers

with his counsel, understood them, and signed them. In the plea

form, defendant represented that he understood he would be

sentenced on the aggravated manslaughter charge to a term in the

court's discretion, that no "promises or representations," other

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than those listed in the plea form, were made to him by "the

prosecutor, [his] defense attorney, or anyone else," and that no

threats were made causing him to plead guilty. He also represented

he was satisfied with the advice he received from counsel.

"[I]t does not appear to us that anything in the record

available would support [defendant's] version of" his counsel's

alleged misadvice, State v. Santos, 210 N.J. 129, 144 (2012), and

the record, in fact, contradicts defendant's assertions. A

defendant's "presentation of conclusory allegations unsupported

by specifics is subject to summary dismissal, as are contentions

that in the face of the record are wholly incredible." Blackledge,

431 U.S. at 74; cf. State v. Jones, 219 N.J. 298, 315 (2014)

(requiring a hearing where "the record is entirely compatible with

defendant's claim").

Here, defendant's plea colloquy and execution of the plea

form undermine and contradict his PCR claims he was misinformed

about the sentence he would receive, promised he would receive a

fifteen-year sentence, or pressured into pleading guilty. His

"[s]olemn declarations in open court [when he entered his plea]

carry a strong presumption of verity," Simon, 161 N.J. at 444

(quoting Blackledge, 431 U.S. at 74), and require rejection of his

claim that his counsel's advice encouraging him to accept the plea

following jury selection was deficient.

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 Moreover, although defendant argues counsel changed his mind

about the strength of the State's case following jury selection

and encouraged defendant to accept the State's plea offer,

defendant does not present any evidence showing counsel's judgment

was incorrect, "fell below an objective standard of

reasonableness" or constituted an "error[] so serious that counsel

was not functioning as the 'counsel' guaranteed . . . defendant

by the Sixth Amendment." Strickland, 466 U.S. at 687-88. Thus,

defendant failed to demonstrate counsel's alleged belated advice

about the strength of the State's case and encouraging him to

accept the State's plea offer constituted constitutionally

deficient performance under the first prong of the Strickland

standard.

Defendant also did not present any evidence showing he

suffered prejudice from counsel's alleged belated realization

about the strength of the State's case, and advice that defendant

plead guilty. Defendant's verified petition and supplemental

certification supporting his request for PCR are bereft of any

showing of a reasonable probability that, but for his counsel's

alleged error in belatedly recognizing the strength of the State's

case, defendant "would not have pled guilty and would have insisted

on going to trial," DiFrisco, 137 N.J. at 457, or that it "would

have been rational under the circumstances" to reject the plea

8 A-4115-16T4
offer and proceed to trial, Padilla, 559 U.S. at 372. Thus,

defendant failed to satisfy the second prong of the Strickland

standard on his claim that his attorney was ineffective by advising

him to accept the State's plea offer.

Defendant also alleges his counsel was ineffective because

the State offered defendant a nine-year plea offer at a "plea

negotiation conference," but counsel advised defendant the State

did not have a strong case and defendant should proceed to trial.

The record does not include a transcript of a plea negotiation

conference at which a nine-year plea offer was communicated to

defendant, and defendant does not provide any details concerning

the offer such as the crime to which defendant would have been

required to plead. The only record on appeal showing an offer,

other than the plea offer defendant accepted following jury

selection, is the court's final pretrial order, which states the

State's plea offer included a recommendation that defendant

receive a life sentence.

In any event, even accepting defendant's claim the State

communicated a plea offer of nine years at some point during the

proceedings and counsel advised defendant not to accept the offer,

defendant failed to sustain his burden of presenting evidence that

counsel's advice was erroneous under the circumstances or that his

performance was deficient. Absent such evidence, we will not

9 A-4115-16T4
assume counsel's advice "fell below an objective standard of

reasonableness." Strickland, 466 U.S. at 688; see also State v.

Hess, 207 N.J. 123, 147 (2011) (finding there is a "strong

presumption" that counsel acted with competence).

Defendant's petition and supporting certification also fail

to present facts establishing that but for counsel's alleged

erroneous advice to reject the putative nine-year plea offer,

there is a reasonable probability the result of the proceeding

would have been different. Strickland, 466 U.S. at 694. Defendant

fails to satisfy Strickland's second prong because his petition

and supporting certification are devoid of any facts showing that

if his counsel had advised him to accept the alleged nine-year

plea offer, he would have done so. See Jones, 219 N.J. at 312

(citation omitted) (finding PCR petitions must be "accompanied by

an affidavit or certification by defendant, or by others, setting

forth with particularity," the "facts sufficient to demonstrate

counsel's alleged substandard performance"). Thus, defendant

failed to establish he was prejudiced by his counsel's purported

misadvice to reject the alleged nine-year plea offer.

We are therefore satisfied defendant failed to sustain his

burden under both prongs of the Strickland standard. The PCR

10 A-4115-16T4
court correctly concluded defendant failed to demonstrate a prima

facie case of ineffective assistance of trial counsel.1

We also reject defendant's claim the court erred by failing

to conduct an evidentiary hearing. A hearing is required when a

defendant establishes a prima facie case for PCR under the

Strickland standard and the existing record is inadequate to

resolve defendant's claim. State v. Porter, 216 N.J. 343, 354

(2013) (citing R. 3:22-10(b)). Here, the record before the PCR

court provided an adequate basis for its finding defendant did not

establish a prima facie case of ineffective assistance of counsel

and therefore an evidentiary hearing was not required.

1
Defendant does not argue the PCR court erred by rejecting his
contention that appellate counsel was constitutionally
ineffective. An issue not briefed on appeal is deemed waived.
Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App.
Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div.
2001). Nevertheless, there was no showing before the PCR court
that appellate counsel failed to make available meritorious
arguments on defendant's direct appeal, and appellate counsel's
failure to raise meritless arguments does not render his
performance constitutionally deficient. See, e.g., State v.
Morrison, 215 N.J. Super. 540, 548-49 (App. Div. 1987) (finding
appellate counsel does not have a constitutional duty to assert
frivolous arguments requested by defendant); see also State v.
O'Neal, 190 N.J. 601, 619 (2007) (holding "[i]t is not ineffective
assistance of counsel for defense counsel not to file a meritless
motion . . . .").

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 Defendant's remaining arguments are without merit sufficient

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

Affirmed.

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