STATE OF NEW JERSEY VS. RIGOBERTO RAMIREZ (13-06-0946, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-0115-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RIGOBERTO RAMIREZ, a/k/a
RIGOBERTO RANIREZ,

Defendant-Appellant.
____________________________

Submitted October 22, 2019 – Decided November 6, 2019

Before Judges Currier and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 13-06-0946.

Joseph A. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).

Mark Musella, Bergen County Prosecutor, attorney for
respondent (Nicole Paton, Assistant Prosecutor, of
counsel and on the brief).

PER CURIAM
 Defendant Rigoberto Ramirez, a/k/a Ranirez Rigoberto, appeals from the

June 20, 2018 Law Division order denying his petition for post-conviction relief

(PCR) without an evidentiary hearing. We affirm.

I.

We derive the following facts from the record. Sometime between June

1, 2012, and August 28, 2012, defendant performed an act of sexual penetration

with a boy under the age of thirteen by putting his penis in the child's mouth for

defendant's sexual gratification. On August 28, 2012, defendant touched the

penis of a boy under the age of thirteen with the purpose to humiliate and

degrade the boy.

A Bergen County Grand Jury charged defendant in Superseding

Indictment No. 13-06-0946-I with three counts of second-degree sexual assault,

contrary to N.J.S.A. 2C:14-2(b) (counts one, two, and six); three counts of first-

degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1) (counts

three, four, and five); third-degree endangering the welfare of a child, contrary

to N.J.S.A. 2C:24-4(a) (count seven); fourth-degree endangering the welfare of

a child, contrary to N.J.S.A. 2C:24-4(a) (count eight); and fourth-degree

possession of child pornography, contrary to N.J.S.A. 2C:24-4(b)(5)(b) (count

nine).

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 On January 27, 2014, defendant pled guilty to second-degree sexual

assault (count one), and first-degree aggravated sexual assault (count three).

Defendant was advised by the plea judge that he was required to undergo a

psychological evaluation. An Avenel evaluation dated June 4, 2014, determined

that defendant was a repetitive, compulsive sex offender.

In accordance with the plea agreement, on July 11, 2014, defendant was

sentenced to eight years of imprisonment at the Adult Diagnostic and Treatment

Center (ADTC), subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2, and a three-year period of parole ineligibility. Defendant was also subject

to Megan's Law, N.J.S.A. 2C:7-1, a Nicole's Law restraining order, N.J.S.A.

2C:44-8, Parole Supervision for Life (PSL), N.J.S.A. 2C:43-6.4, DNA testing,

fines, penalties, and restitution. Defendant did not file a direct appeal of his

conviction or sentence.

On August 30, 2017, defendant filed a pro se petition for PCR, arguing

his plea attorney and sentencing attorney both rendered ineffective assistance:

(1) by failing to argue that PSL is illegal because it violates the separation of

powers doctrine; (2) defense counsel did not warn defendant that Megan's Law

registration requirement starts anew upon the commission of any other crime,

and not just a sexual-related offense; (3) both counsel failed to advise defendant

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of his right to a plenary hearing to challenge the Avenel report; (4) both counsel

failed to disclose all of the conditions of mandatory PSL; and (5) his petition for

PCR was not barred under Rule 3:22-4.

The PCR court assigned counsel, who filed a supporting brief. PCR

counsel supplemented defendant's petition by arguing: (1) he was denied

effective assistance because at sentencing, his counsel failed to argue

aggravating and mitigating factors; (2) defendant was denied due process under

the Fifth and Fourteenth Amendments of the United States Constitution; and (3)

defendant was entitled to an evidentiary hearing.

Despite what was placed on the record, defendant argued he was not

advised he could challenge the ADTC findings, confront witnesses, or present

rebuttal evidence. Oral argument was conducted by the PCR judge on May 24,

2018, and an order denying PCR was entered on June 20, 2018.

The PCR court rejected defendant's arguments and found that prior to

establishing the factual basis of the plea, defendant was informed he had to

undergo a psychological evaluation "to determine whether his conduct was

characterized by a pattern of repetitive and compulsive behavior." Defendant

was told by the plea judge that he could challenge the findings made by the

Department of Corrections (DOC) if he was found to be a "repetitive and

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compulsive" offender, as indicated on the supplemental plea form. Question

four stated: "Do you understand you will be able to challenge the findings of the

DOC in a hearing and at that hearing you will have the right to confront the

witnesses against you and to cross-examine them and then present evidence on

your own behalf?" Defendant circled "Yes" next to the question on the form.

In his decision, the PCR court found the plea judge advised defendant that

if he was found to be repetitive and compulsive, he would be sentenced to the

ADTC, he would have to register with certain agencies, and he would be subject

to PSL. The PCR court found no basis to order an evidentiary hearing.

This appeal ensued, with defendant presenting the following argu ment:

POINT ONE

THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
BECAUSE TESTIMONY IS NEEDED REGARDING
THE SUBSTANCE OF THE LEGAL ADVICE PLEA
AND SENTENCE COUNSEL PROVIDED TO HIM
REGARDING HIS ABILITY TO CHALLENGE THE
FINDINGS AND CONCLUSIONS OF THE ADTC
EVALUATION.

Following review of this argument, in light of the record and applicable

law, we affirm.

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 II.

"A petitioner must establish the right to [post-conviction] relief by a

preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459

(1992). To sustain that burden, the petitioner must set forth specific facts that

"provide the court with an adequate basis on which to rest its decision." State

v. Mitchell, 126 N.J. 565, 579 (1992).

A defendant must prove two elements to establish a PCR claim that trial

counsel was constitutionally ineffective: first, that "counsel's performance was

deficient[,]" that is, "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment";

second, that "there is a reasonable probability that, but for counsel's

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

Strickland v. Washington, 466 U.S. 668, 687, 696 (1984); accord State v. Fritz,

105 N.J. 42, 52, 60-161 (1987). "A reasonable probability is a probability

sufficient to undermine confidence in the outcome." State v. Harris, 181 N.J.

391, 432 (2004) (quoting Strickland, 466 U.S. at 694).

To prove the first element, a defendant must "overcome a strong

presumption that counsel exercised reasonable professional judgment and sound

trial strategy in fulfilling his responsibilities." State v. Nash, 212 N.J. 518, 542

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(2013) (internal quotation marks omitted) (quoting State v. Hess, 207 N.J. 123,

147 (2011)). To prove the second element, a defendant must demonstrate "how

specific errors of counsel undermined the reliability of the finding of guilt."

United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).

We defer to the motion judge's findings so long as they are "supported by

sufficient credible evidence in the record." Nash, 212 N.J. at 540; see State v.

Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed

only if they are so clearly mistaken that the interest of justice demand

intervention and correction.") (internal quotation marks and citation omitted).

Legal conclusions which flow from those facts, however, are reviewed de novo.

Nash, 212 N.J. at 540-41.

Turning to defendant's argument, he maintains his plea and sentence

counsel both failed to advise him he could challenge the findings and

conclusions of the ADTC evaluation. Here, the record belies defendant's

contentions. At the plea hearing, the judge questioned defendant as follows:

The Court: Do you understand you'll be able to
challenge the [DOC's] findings and confront witnesses
against you and cross-examine them and present
evidence on your own behalf if you don't agree with
their findings? Do you understand that?

[]Defendant: Yeah.

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 As stated previously, defendant also affirmatively circled "yes" to

question four on the supplemental plea form confirming his understanding that

he could challenge the DOC findings. The issue was fully and properly

considered by the plea judge. We have no basis to intervene.

Equally unavailing is defendant's claim that his sentencing counsel did not

argue mitigating factors six, N.J.S.A. 2C:44-1(b)(6) (defendant has

compensated or will compensate the victim for his conduct for the damage or

injury that he sustained, or will participate in a program of community service);

nine, N.J.S.A. 2C:44-1(b)(9) (the character and attitude of the defendant indicate

he is unlikely to commit another offense); ten, N.J.S.A. 2C:44-1(b)(10)

(defendant is particularly likely to respond affirmatively to probationary

treatment); and twelve, N.J.S.A. 2C:44-1(b)(12) (the willingness of defendant

to cooperate with law enforcement authorities). The PCR court found

sentencing counsel argued mitigating factors six, seven 1 and ten, and the other

factors were inapplicable. We agree.

"[T]he failure to present mitigating evidence or argue for mitigating

factors" can be ineffective assistance of counsel where "mitigation evidence was

1
N.J.S.A. 2C:44-1(b)(7) (The defendant has no history of prior delinquency or
criminal activity or has led a law-abiding life for a substantial period of time
before the commission of the present offense.)
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withheld from the sentencing court." Hess, 207 N.J. at 153-544. Here, however,

"[t]he record before us contains no indication of any similar withholding from

the trial court of information that could bear on the court's sentencing analysis."

State v. Friedman, 209 N.J. 102, 121 (2012). Defendant fails to identify rational

mitigating evidence that sentencing counsel should have advanced.

Sentencing counsel argued mitigating factors six, seven and ten weighed

in defendant's favor but the sentencing judge found only mitigating factor seven

applied in part because defendant was to pay restitution to the victim upon his

release.

Addressing mitigating factors ten and twelve, the PCR judge found the

factors "not applicable" because defendant pled guilty to second-degree sexual

assault and first-degree aggravated sexual assault, which carry sentences

ranging from five to ten years and ten to twenty years respectively. Defendant

was sentenced in the second-degree on both counts to eight years imprisonment

subject to NERA. As to mitigating factor twelve, defendant's acceptance of the

plea deal was not in cooperation with law enforcement and he did not identify

another perpetrator or assist in solving another crime under State v. Read, 397

N.J. Super. 598, 613 (App. Div. 2008). Therefore, he ruled there was no factual

basis to argue the two mitigating factors. Because defendant has not proffered

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any evidence to support any additional mitigating factors, he has not

demonstrated an entitlement to PCR relief.

III.

Defendant further argues the PCR judge abused his discretion by denying

an evidentiary hearing, asserting the existence of genuine issues of material fact.

PCR courts are not required to conduct evidentiary hearings unless the defendant

establishes a prima facie case and "there are material issues of disputed fact that

cannot be resolved by reference to the existing record . . . ." R. 3:22-10(b). "To

establish such a prima facie case, the defendant must demonstrate a reasonable

likelihood that his or her claim will ultimately succeed on the merits." State v.

Marshall, 148 N.J. 89, 158 (1997). Speculative assertions are insufficient to

establish a prima facie case of ineffective assistance of counsel. State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

The record amply supports the PCR judge's findings and conclusions.

Defendant has not shown "there is a reasonable probability that, but for counsel's

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

Strickland, 466 U.S. at 694. He was unable to demonstrate the required

prejudice. Having failed to establish a prima facie case, defendant was not

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entitled to an evidentiary hearing. Preciose, 129 N.J. at 462. Accordingly, the

PCR court did not abuse its discretion in denying an evidentiary hearing.

To the extent we have not addressed any arguments raised by plaintiff, we

have deemed such arguments lacking in sufficient merit to warrant comment in

a written opinion. R. 2:11-3(e)(2).

Affirmed.

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