NOT FOR PUBLICATION WITHOUT THE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.
2 A-4115-16T4
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
3 A-4115-16T4
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
4 A-4115-16T4
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
5 A-4115-16T4
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
6 A-4115-16T4
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.
7 A-4115-16T4
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 . . . .").
11 A-4115-16T4
Defendant's remaining arguments are without merit sufficient
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
12 A-4115-16T4
STATE OF NEW JERSEY VS. LENNY ROSS (12-11-2560, ATLANTIC COUNTY AND STATEWIDE)
Combined Opinion