Opinion
DOCKET NO. A-5345-14T3
12-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MATTHEW J. RAMOS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Amanda E. Nini, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-12-1222. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Amanda E. Nini, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Matthew J. Ramos appeals from the June 16, 2015 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
We derive the following facts from the record. A grand jury indicted defendant for first-degree murder (of Denise Leonard), N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree attempt to commit a crime, N.J.S.A. 2C:5-1(a) (count two); second-degree aggravated assault (of Lee Thomas), N.J.S.A. 2C:12-1(b)(1) (count three); and two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts four and five).
On the day of the trial, defendant pled guilty under count one to an amended charge of first-degree aggravated manslaughter and to count three. In exchange for defendant's guilty plea, the State agreed to recommend a thirty-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant reserved the right to argue for a lesser sentence.
At the plea hearing, defendant testified that on April 8, 2009, he stabbed Thomas eight times with a knife, inflicting several serious wounds, and then stabbed Leonard nineteen times. After stabbing Leonard, he then left the scene and did not call the paramedics or anyone else to render aid to her. He admitted that stabbing Leonard nineteen times manifested an extreme indifference to the value of human life.
At sentencing on January 18, 2013, defense counsel asked the court to find five mitigating factors: N.J.S.A. 2C:44-1(b)(3), "[t]he defendant acted under a strong provocation;" N.J.S.A. 2C:44-1(b)(4), "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense;" N.J.S.A. 2C:44-1(b)(5), "[t]he victim of the defendant's conduct [Thomas] induced or facilitated its commission;" N.J.S.A. 2C:44-1(b)(6), "[t]he defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained;" and N.J.S.A. 2C:44-1(b)(12), "[t]he willingness of the defendant to cooperate with law enforcement authorities[.]" In addition, defendant expressed his remorse and apologized for his actions.
The court reviewed defendant's prior criminal history, and found he had eleven adult arrests and convictions for offenses including aggravated assault, two sexual assaults, two simple assaults, possession of a controlled dangerous substance with intent to distribute, two burglaries, and resisting arrest. The court made other findings regarding defendant's age, health, and employment history, and found four aggravating factors: N.J.S.A. 2C:44-1(a)(1), "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;" N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will commit another offense;" N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;" and N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the defendant and others from violating the law[.]" The court found no mitigating factors. The court sentenced defendant to a thirty-year term of imprisonment subject to NERA, and also imposed four Victims of Crime Compensation Board (VCCB) assessments at $50 each, among other things.
Defendant appealed his sentence. We heard the matter on an Excessive Sentencing Oral Argument calendar and affirmed, but remanded with the parties' consent for the trial court to correct the judgment of conviction (JOC) to reflect two VCCB assessments at $100 each. State v. Ramos, No. A-3730-12 (App. Div. Aug. 29, 2013). The court entered an amended JOC on February 7, 2014.
Defendant did not file a petition for certification with our Supreme Court. Instead, on May 28, 2014, he filed a PCR petition, arguing, in relevant part, that defense counsel rendered ineffective assistance by failing to call three of his family members to speak on his behalf at sentencing. Defendant's daughter provided a certification stating that she agreed to speak at sentencing but never heard anything else about it, and she would have said that defendant "was a good father. He was always very attentive and caring with us as children. He was kind hearted and would help anyone in need of assistance. He was a quiet man. He was not a violent person." Defendant's son provided a certification stating that he was willing, but not asked, to speak at sentencing, and would have said that defendant "was a good father to me. He took very good care of us. He was always attentive to our needs. He was not in any way violent toward us." Defendant's ex-wife also provided a certification stating that she was willing, but not asked, to speak at sentencing, and would have said that defendant "was a responsible provider to our children and grandchildren. He was very caring to his family and not prone to violence."
According to defendant's pre-sentence report, he was not paying child support. --------
In an oral opinion, rendered on June 16, 2015, Judge Pedro J. Jimenez found that defendant failed to prove the two prongs of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The judge reasoned as follows:
[Defendant] has a long history with the criminal justice system going back as far as 1975 and since 1983 has established a history by way of a string of violent offenses, crimes against persons for which he pled guilty and
was sentenced to either periods of incarceration involving parole ineligibility[.]
I recognize what the family was offering, but the [pre-sentence report] speaks to a different story in that [defendant] was, in fact, a violent person, convicted of violence, both physical and sexual violence against individuals for which he did jail time, and . . . at the time of sentence the [sentencing] judge was confronted with the situation where [defendant's] violence resulted in a manslaughter charge and an aggravated assault charge, serious bodily injury to two separate victims.
The results obtained in this case were obtained by way of a plea agreement, essentially to a lesser included offense. The recommendation by the State being [thirty] years. The defense . . . reserved the right to argue for a lesser sentence on both counts, including [twenty] years and seven years[,] respectively.
But there's nothing to indicate on the record here, other than just speculation, that the [sentencing] judge may have changed his mind or may have been influenced . . . .
However, based on what I'm required to do here in a [PCR] situation under the Strickland standards, it hasn't been presented, nor can I come up on my own how there exists a reasonable probability that the result of the proceedings would have been different if these three [family members] actually came to testify because what they [would testify] to would be focused on their own experiences with [defendant] as members of his immediate family whereas the [pre-sentence report] speaks to a very different experience of [defendant] as an individual, who again has been engaged in acts of significant violence since 1983.
I don't find, given this record, that it has been shown even by a preponderance of the evidence that [defense counsel] engaged in conduct which was unprofessional or professionally incompetent, and I don't see how it would have changed the outcome, especially when you look at the plea colloquy offered in support of this agreement by defense counsel.The judge denied the petition without an evidentiary hearing, concluding that defense counsel committed no error and defendant offered nothing to show that the outcome would have been different had his family members spoken on his behalf at sentencing. This appeal followed. On appeal, defendant raises the following contentions:
POINT I THE ORDER DENYING [PCR] SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE, WHEN THE PROSECUTOR PRESENTED FOUR WITNESSES TO GIVE VICTIM IMPACT STATEMENTS AT SENTENCING, TRIAL COUNSEL'S FAILURE TO PRESENT WITNESSES WHO WERE AVAILABLE TO SPEAK ON DEFENDANT'S BEHALF SATISFIED PRIMA FACIE CRITERIA FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II THE ORDER DENYING [PCR] SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
Our Supreme Court has held that
to set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.See also State v. Parker, 212 N.J. 269, 279 (2012). We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. See State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10.
[State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alterations in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (internal quotation marks omitted).]
We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons Judge Jimenez expressed in his well-reasoned oral opinion. However, we make the following brief comments.
Even if defendant's family members had spoken on his behalf at sentencing, their testimony would not have negated any of the aggravating factors the sentencing judge found applicable in this case or supported the mitigating factors defense counsel requested. Defendant has a history of committing violent acts against others. He engaged in two acts of brutal violence in this case, one of which resulted in Leonard's death. His pre-sentence report indicates that he is a sexually violent predator who was committed to the Special Treatment Unit for sexually violent offenders, and he was released on conditional discharge, which he violated when he committed the present offenses. We are satisfied that defense counsel committed no error in this case.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION