NOT FOR PUBLICATION WITHOUT THE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-3068-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HOWARD W. RAMBO,
Defendant-Appellant.
_______________________
Submitted May 17, 2021 – Decided May 28, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Accusation No. 18-01-0013.
Joseph E. Krakora, Public Defender, attorney for
appellant (Anderson D. Harkov, Designated Counsel,
on the brief).
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Linda A. Shashoua, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant appeals from a January 10, 2020 order denying his petition for
post-conviction relief (PCR) without an evidentiary hearing. Defendant argues
that his sentencing counsel provided ineffective assistance by failing to argue
for mitigating factors at sentencing. Judge Edward J. McBride, Jr., entered the
order under review and issued an oral opinion.
On appeal, defendant raises the following arguments for this court's
consideration1:
POINT I
THE PCR [JUDGE] ERRED WHEN [HE] FAILED TO
GRANT DEFENDANT'S REQUEST FOR AN
EVIDENTIARY HEARING BECAUSE THE
SENTENCING TRANSCRIPTS ESTABLISHED A
PRIMA FACIE CASE THAT PLEA COUNSEL
FAILED TO INVESTIGATE AND ARGUE
MITIGATING FACTORS AND, IN FACT, FAILED
TO SERVE AS DEFENDANT'S ADVOCATE IN
ANY FORM DURING THE SENTENC[ING]
HEARING.
1
We reject the State's contention that defendant's petition is procedurally barred
because he did not raise an excessive sentence claim on direct appeal. As part
of defendant's plea agreement, he waived his right to appeal. Further,
defendant's contention that his sentencing counsel rendered ineffective
assistance of counsel is more appropriately addressed on petition for PCR. See
State v. Hess, 207 N.J. 123, 145 (2011) (noting that our courts "routinely decline
to entertain ineffective-assistance-of-counsel claims on direct appeal because
those claims 'involve allegations and evidence that lie outside the trial record'"
(quoting State v. Preciose, 129 N.J. 451, 460 (1992))).
A-3068-19
2
POINT II
SENTENCING COUNSEL'S FAILURE TO
INVESTIGATE AND ARGUE IN FAVOR OF
MITIGATING FACTORS RESULTED IN
DEFENDANT NOT HAVING THE ASSISTANCE OF
COMPETENT COUNSEL AT HIS SENTENC[ING]
HEARING AND THEREFORE THE PCR [JUDGE]
ERRED WHEN [HE] FAILED TO GRANT
DEFENDANT A NEW SENTENC[ING] HEARING.
We affirm substantially for the reasons expressed by Judge McBride in his oral
opinion. We add the following remarks.
When a PCR judge does not hold an evidentiary hearing—like here—this
court's standard of review is de novo as to both the factual inferences drawn by
the PCR judge from the record and the judge's legal conclusions. State v. Blake,
444 N.J. Super. 285, 294 (App. Div. 2016).
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong,
a defendant must establish that his counsel "made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." 466 U.S. at 687. A defendant must rebut the "strong presumption
that counsel's conduct [fell] within the wide range of reasonable professional
A-3068-19
3
assistance." Id. at 689. Thus, this court must consider whether counsel's
performance fell below an objective standard of reasonableness. Id. at 688.
To satisfy the second Strickland/Fritz prong, a defendant must show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687. A defendant must establish "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's
performance has been so deficient as to create a reasonable probability that these
deficiencies materially contributed to defendant's conviction, the constitutional
right will have been violated." Fritz, 105 N.J. at 58. Both the United States
Supreme Court and the New Jersey Supreme Court have extended the
Strickland/Fritz test to challenges of guilty pleas based on ineffective assistance
of counsel. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012); Missouri v. Frye,
566 U.S. 134, 140 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994). A
defendant must demonstrate with "reasonable probability" that the result would
have been different had he received proper advice from his attorney. Lafler, 566
U.S. at 163 (quoting Strickland, 466 U.S. at 694).
A-3068-19
4
A defendant is only entitled to an evidentiary hearing when he "'has
presented a prima facie [claim] in support of [PCR],'" meaning that a defendant
must demonstrate "a reasonable likelihood that his . . . claim will ultimately
succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (quoting
Preciose, 129 N.J. at 463). A defendant must "do more than make bald
assertions that he was denied the effective assistance of counsel" to establish a
prima facie claim entitling him to an evidentiary hearing. State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). A defendant bears the burden of
establishing a prima facie claim. State v. Gaitan, 209 N.J. 339, 350 (2012). This
court must "view the facts in the light most favorable to a defendant to determine
whether a defendant has established a prima facie claim." Preciose, 129 N.J. at
462-63.
Here, defendant failed to satisfy either prong of Strickland/Fritz. The
sentencing judge determined that no mitigating factors applied to defendant's
circumstances, and sentenced defendant in accordance with his plea agreement.
While defendant's sentencing counsel's "failure to present mitigating evidence
or argue for mitigating factors" may rise to the level of ineffective assistance of
counsel, even within the confines of a plea agreement, Hess, 207 N.J. at 154,
sentencing counsel's "failure to raise unsuccessful legal arguments does not
A-3068-19
5
constitute ineffective assistance of counsel," State v. Worlock, 117 N.J. 596, 625
(1990). The PCR judge examined each of defendant's alleged mitigating factors
and determined that even if defendant's sentencing counsel argued in favor of
their application, the result of the sentencing hearing would not have been
different.
As to mitigating factor two, defendant did not contemplate that his
conduct would cause or threaten serious harm, and mitigating factor three,
defendant acted under a strong provocation, the PCR judge found that neither
was applicable. Defendant pled guilty to armed robbery, which the PCR judge
noted "by definition contradict[s] the idea that [defendant] did not contemplate
that his conduct would threaten serious harm." And defendant's previous and
current struggle with drug addiction does not quality as provocation. The PCR
judge observed that while "addiction and related stress and mental health issues"
may internally provoke someone, mitigating factor three contemplates external
provocation.
As to factor four, substantial grounds tending to excuse or justify
defendant's conduct, though failing to establish a defense, the PCR judge
properly observed that defendant's claim that his drug addiction is a substant ial
ground tending to excuse or justify his conduct is unavailing. Our Court has
A-3068-19
6
found that drug addiction does not excuse or justify a defendant's conduct. State
v. Ghertler, 114 N.J. 383, 390 (1989) (rejecting "defendant's contention that his
drug dependency should be considered a mitigating factor"); see also State v.
Setzer, 268 N.J. Super. 553, 567-68 (App. Div. 1993) (noting that intoxication
during the commission of a crime is not an excuse or justification for the
commission of a crime).
As to factor seven, defendant has no history of prior delinquency or
criminal activity or has led a law-abiding life for a substantial period of time,
defendant does have prior criminal history or delinquency prior to his
commission of the robberies. PCR judge correctly noted that although defendant
does not have prior felony convictions, defendant's two prior municipal court
convictions indicate he has not led a law-abiding life as contemplated in
mitigating factor seven. See State v. Buckner, 437 N.J. Super. 8, 38 (App. Div.
2014) (finding that a defendant's prior municipal convictions, as well as multiple
arrests and a bench warrant, supported the sentencing judge's determination that
a defendant had not led a law-abiding life).
As to factor eight, defendant's conduct was the result of circumstances
unlikely to recur, defendant's assertion that he has been receiving assistance for
his substance abuse and mental health issues since he has been incarcerated have
A-3068-19
7
no bearing on whether counsel rendered effective assistance at the sentencing
hearing. The PCR judge explained that this development is "not relevant to the
issue of whether at the time of the sentencing there was any basis for an
argument that the circumstances that led to the robberies, the addiction an d
mental health and emotional problems, would not come up again in the future."
As to factor nine, defendant's character and attitude indicated that he was
unlikely to commit another offense, defendant's assertion that "his time so far in
prison has helped him to realize . . . and to have the self-realization of how he
ended up where he was and what he did for that spree of a month's period of
time" was unavailing. The PCR judge properly noted that defendant's time in
prison and his revelations therein are "not relevant on the question at the time
that he was sentenced for four separate robberies," and "there was no basis for
an argument at the time that [defendant's] character and attitude indicated that
he would not likely commit another offense."
As to factor ten, defendant would likely respond to probationary
treatment, the crimes that defendant pled guilty to carry a presumption of
imprisonment. As a result, defendant was not eligible for a probationary term
because he cannot establish that a prison sentence would constitute a serious
injustice which overrides the need to deter others from committing robbery. See
A-3068-19
8
N.J.S.A. 2C:44-1(d); State v. Sene, 443 N.J. Super. 134, 144-45 (App. Div.
2015) (noting that factor ten is inapplicable when the offense carries a
presumption of imprisonment unless the record supports a finding of "serious
injustice" (quoting State v. Evers, 175 N.J. 355, 388 (2003))).
As to factor eleven, defendant's imprisonment would result in excessive
hardship to himself or his dependents, the PCR judge noted that the alleged
hardship for his spouse and mother are "not relevant considerations" because
neither are his dependents. As to defendant's main assertion that his
incarceration would be a hardship to his children, the PCR judge noted that "the
[L]egislature recognized that [any time] a parent goes to prison, that's a hardship
on that parent's children." However, "the statute says excessive hardship and the
case law indicates that there needs to be something . . . proven above and beyond
the standard degree of hardship that any children would experience," which
defendant failed to establish. See State v. Hynan, 451 N.J. Super. 429, 460 (App.
Div. 2017) (rejecting application of factor eleven because the defendant failed
to show that "his children would experience 'excessive' hardship from his
absence").
The PCR judge concluded that "none of the mitigating factors that have
been advocated by [defendant] . . . applied" to defendant's circumstances and
A-3068-19
9
asserting those mitigating factors "would not have made any difference in the
outcome of th[e] proceeding at sentencing." As a result, sentencing counsel's
failure to arguing in favor of the application of mitigating factors was not
ineffective assistance of counsel.
Affirmed.
A-3068-19
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STATE OF NEW JERSEY VS. HOWARD W. RAMBO (18-01-0013, CAMDEN COUNTY AND STATEWIDE)
Combined Opinion