NOT FOR PUBLICATION WITHOUT THE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-2374-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASON L. RISLEY, a/k/a
JASON LEE RISLEY, JAY L. RISELY,
JAY L. RISLEY, and JASON RISELEY,
Defendant-Appellant.
Submitted February 28, 2018 – Decided June 12, 2018
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Cape May County, Indictment Nos.
12-02-0111 and 12-12-0852.
Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).
Jeffery H. Sutherland, Cape May County
Prosecutor, attorney for respondent (Gretchen
A. Pickering, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant Jason L. Risley appeals from the November 15, 2016
Law Division order denying his petition for post-conviction relief
(PCR). We affirm.
Defendant's four pending indictments were resolved by way of
plea agreement. Indictment No. 12-02-0111 charged him with third-
degree possession of a controlled dangerous substance (CDS),
N.J.S.A. 2C:35-10(a)(1); Indictment No. 12-03-0188 charged him
with two counts of third-degree possession of CDS, N.J.S.A.
2C:35-10(a)(1); Indictment No. 12-09-0578 charged him with fourth-
degree shoplifting, N.J.S.A. 2C:20-11(b)(2), and fourth-degree
conspiracy, N.J.S.A. 2C:5-2; finally, Indictment No. 12-12-0852
charged him and a co-defendant, George R. Furey (co-defendant),
with third-degree burglary, N.J.S.A. 2C:18-2 and third-degree
conspiracy, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-2. The remaining
counts of Indictment No. 12-12-0852 charged Monique M. Kelly with
related crimes.
Defendant agreed to enter a guilty plea to one count of third-
degree drug possession, Indictment No. 12-02-0111, and third-
degree burglary, Indictment No. 12-12-0852. In exchange, the
State would recommend a five-year sentence on the possession charge
and a consecutive five-year term on the burglary offense.
Defendant was sentenced in accordance with the agreement on March
21, 2013. The State then dismissed Indictment Nos. 12-03-0188 and
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12-09-0578 in their entirety, and the remaining counts of
Indictment No. 12-12-0852 as they related to this defendant.
Defendant did not file a direct appeal.
On January 16, 2013, while defendant was in custody on the
charges, the Cape May County Sheriff's Department investigated an
incident in which defendant allegedly assaulted Thomas Furey
(Furey), the brother of defendant's co-defendant. According to
the document presented to the trial judge during argument on
defendant's PCR petition, the dispute related to a third man's
relationship with a woman who had previously been involved with
Furey. A subsequent special report stated that Furey may have
misrepresented the incident in order to be moved to a different
area of the county jail. The report also noted that defendant
"did not have any marks at all on his person."
When defendant entered his guilty plea a week later on January
24, 2013, he did not mention the assault. During the colloquy,
defendant's attorney explained to the judge the terms of the
agreement set forth on the written plea form, including the
imposition of two consecutive five-year terms of imprisonment.
The judge asked defendant to explain the recommended sentence.
Defendant responded, "[f]ive years, consecutive five years."
Defendant filed his petition for PCR on July 1, 2016. In his
initial submissions, defendant contended that trial counsel had
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been ineffective because he represented the co-defendant's
brother, Furey, and disclosed defendant's cooperation with the
authorities to him. Because of the disclosure, defendant argued,
the co-defendant obtained a better offer and sentence.1
At oral argument, however, defendant contended that his
attorney's disclosures to Furey created such a hostile environment
in the county jail that he was assaulted, which coerced him into
pleading guilty so that he could be quickly transferred to state
prison for his own safety. Defendant also alleged that
his attorney assured him that he would receive five years
concurrent——not consecutive——on the two offenses, despite the
recommendation set forth on the plea form and reviewed by the
judge on the record. Defendant further asserted that counsel had
been ineffective because of his failure to investigate witnesses,
including the burglary victims' daughter, who he claimed arranged
the burglary.
The judge found defendant's proofs so lacking in merit that
no prima facie case was established, and thus denied an evidentiary
hearing. Now on appeal, defendant alleges the following:
1
Allegedly, the co-defendant was sentenced to only a three-year
term of imprisonment, although no documentation has been provided
corroborating that information or the co-defendant's criminal
history.
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POINT ONE: THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF
WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY
HEARING
A. The Conflict of Interest Issue
B. Misinformation From Plea Counsel
C. Failure to Communicate and Investigate
D. Ineffective Assistance at Sentencing
We find no merit to these arguments. R. 2:11-3(e)(2).
In order to obtain relief based on ineffective assistance
grounds, defendant is required to show not only that counsel's
performance was deficient, but that the deficiency prejudiced his
right to a fair trial. Strickland v. Washington, 466 U.S. 668,
687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant not only failed to establish that counsel's
assistance was not within the range of competence expected of
attorneys representing clients in criminal matters, but he has
failed to establish that "there is a reasonable probability that,
but for counsel's errors, [defendant] would not have pled guilty
and would have insisted on going to trial." State v. DiFrisco,
137 N.J. 434, 457 (1994) (citations omitted). The alleged
deficiencies here are not even supported by the record.
It is also well-established that a claim for ineffective
assistance of counsel requires more than bare allegations. State
v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A prima
facie showing requires a demonstration of reasonable likelihood
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of success. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
Such proofs are woefully lacking in this case.
Defendant provides absolutely no support, other than his
shifting narrative, to anchor his claim of conflict of interest.
If defendant's attorney had disclosed information to Furey that
negatively affected defendant's status at the county jail, or
enabled his co-defendant to negotiate a more favorable deal, it
does not make sense that a few days later defendant would have
entered a guilty plea with counsel's assistance and without
mentioning his suspicion that his lawyer had betrayed a confidence.
Defendant was asked a comprehensive series of questions by the
trial judge to establish the knowing, voluntary, and intelligent
waiver of his right to a trial. No one submitted a certification
supporting this rather serious allegation against the attorney.
Similarly, the record belies defendant's claim that despite the
plea form he signed, the judge's explanation as well as that of
his attorney, and his own on-the-record acknowledgment, he would
nonetheless be sentenced concurrently.
Defendant argues that the victims' daughter was the one who
"set up" the burglary. The argument ignores the fact that even
if true, defendant is still guilty of burglary. His factual basis
met every necessary statutory element.
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For the first time on appeal, defendant raises the argument
that because counsel made no statements seeking a reduced sentence
during the sentence hearing, counsel was ineffective. Having
failed to make that point to the trial court, we will discount it
unless it asserts an error clearly capable of producing an unjust
result. See R. 2:10-2.
The judgment of conviction reflects the judge's finding that
defendant, who was then thirty years old, had no history of stable
employment, was adjudicated delinquent eleven times, was convicted
of six disorderly persons offenses, and was convicted of indictable
crimes on seven occasions. Additionally, defendant "has violated
probation on multiple occasions." The information, together with
defendant's several indictments on this occasion, leads
inescapably to the conclusion that there was no evidence in the
record that would have supported any mitigating factor. Counsel
is not ineffective for failing to make arguments that would not
have been credited by the sentencing judge.
Affirmed.
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