STATE OF NEW JERSEY VS. MICHAEL J. RAMSEY

Following a jury trial, defendant was convicted of first

degree murder, N.J.S.A. 2C:11-3(a)(1) or (2), and second-degree

possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39

4(a). At sentencing, the trial judge imposed a term of life

imprisonment with thirty years of parole ineligibility.

Defendant appealed his conviction and sentence. We

affirmed the conviction, but remanded to correct the period of

parole ineligibility in accordance with the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. State v. Ramsey, 415 N.J. Super.

257, 272 (App. Div. 2010). Our Supreme Court denied

certification. 205 N.J. 77 (2011). On February 25, 2011, the

judge resentenced defendant to life imprisonment subject to an

eighty-five percent period of parole ineligible pursuant to

NERA, or approximately sixty years of parole ineligibility

instead of thirty.

On April 4, 2011, defendant filed a PCR petition, initially

arguing that trial counsel rendered ineffective assistance by

failing to: (1) investigate, prepare and present an alibi

defense at trial; (2) file any pre-trial identification motions

when witnesses identified someone other than defendant as the

shooter; (3) object to the State's error when it introduced a

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misleading photograph during trial of defendant from another

prior arrest to resemble clothing in the description; (4)

investigate or hire experts to explain the make and model of the

car; and (5) alert the court of or use defendant's mental

history in his defense. Defendant later added that trial

counsel rendered ineffective assistance during plea negotiations

by misadvising him that his maximum sentence on the murder

charge would be life imprisonment with a maximum thirty-year

period of parole ineligibility, and misadvising him about the

deportation consequences of a guilty plea.

On July 15 and 16, 2014, the PCR judge held an evidentiary

hearing only on defendant's added claim of IAC during plea

negotiations. The State conceded that during plea negotiations,

the trial judge, defense counsel, and the prosecutor all

mistakenly believed that defendant only faced a thirty-year

period of parole ineligibility on the murder charge. There was

conflicting testimony as to defendant's immigration status and

why he opted to go to trial. On July 15, defendant testified

that he believed he was a United States citizen, but was advised

after his arrest that he had an immigration detainer. He said

he considered a plea deal, but opted for trial after trial

counsel advised him that he would be deported if he pled guilty.

Defendant later testified that he opted for trial to prove his

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innocence. He also testified that after sentencing, he received

information from United States Immigration and Custom

Enforcement that suggested he was a United States citizen, and

thus, counsel misadvised him of the deportation consequences of

a guilty plea.

On July 15, trial counsel confirmed that he advised

defendant he would be deported if he pled guilty. Counsel also

testified that deportation was not the issue and defendant

maintained his innocence and opted for trial. On July 16,

however, counsel testified that although defendant maintained

his innocence,

[i]t was more of that ambiguity that you sometimes have where they won't say that they did it, but they leave it open enough so that you get the impression that if the offer was right, maybe they would say that they did it to put a plea through.

So, yes, his position always would be that, you know, I didn't do this, but he would entertain some interest in what the offer was. Obviously, if he said, you know, "I would take a 15" — and I usually made it clear that you would have to say you're guilty to take any deal.

So, the answer was, his official position was always that, no, I didn't do it, but he would listen to offers. So I guess that's the best way to say it.

The PCR judge never rendered an opinion. Instead, a

different judge rendered a written opinion on July 15, 2014,

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based on his "careful review of the record and oral testimony

presented by counsel on July 15, 2014." The judge made factual

findings as to each of defendant's five initial claims of IAC

and concluded they were "merely bald assertions, none of which

would have had an impact on the result of the trial"

Relying on State v. Taccetta, 200 N.J. 183 (2009), the

judge concluded there was no Strickland prejudice because

defendant professed his innocence. The judge found that "[a]

review of the present record and previous transcripts reveals

that [defendant] did profess his innocence[;]" however, the

judge did not specify where this appeared in the record or what

transcripts he reviewed. Nor did the judge address the

ambiguous testimony about defendant's claim of innocence and

made no factual findings on defendant's claims that trial

counsel misadvised him about the period of parole ineligibility

and deportation consequences of a guilty plea. This appeal

followed.

On appeal, defendant raises the following contentions:

The [c]ourt should reverse the trial court's denial of defendant's petition for post-conviction relief.

A. The denial of defendant's PCR claims was improper because the judge who heard the witnesses and evidence at the evidentiary hearing [] did not render the decision.

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B. Defendant established ineffective assistance of counsel in the court below. C. Remand is warranted for further consideration and an evidentiary hearing on defendant's [five initial] ineffective assistance of counsel claims raised in his petition for post-conviction relief.

To establish a prima facie claim of ineffective assistance

of counsel, the defendant must show that: (1) counsel's

performance was deficient; and (2) the deficiency prejudiced the

defense. State v. Nash, 212 N.J. 518, 542 (2013); see

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064, 80 L. Ed. 2d 674, 693 (1984). A defendant must show by a

"reasonable probability" that the deficient performance affected

the outcome. State v. Fritz, 105 N.J. 42, 58 (1987). "If [a]

defendant establishes one prong of the Strickland-Fritz

standard, but not the other, his claim will be unsuccessful."

State v. Parker, 212 N.J. 269, 280 (2012).

"[I]n order to establish a prima facie claim, a petitioner

must do more than make bald assertions that he was denied the

effective assistance of counsel. He must allege facts

sufficient to demonstrate counsel's alleged substandard

performance." State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div.), certif. denied, 162 N.J. 199 (1999). We review a judge's

decision to deny a PCR petition without an evidentiary hearing

for abuse of discretion. State v. Preciose, 129 N.J. 451, 462

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(1992). However, the standard of review in PCR cases where the

court held an evidentiary hearing is:

a deferential standard; [this court] will uphold the PCR court's findings that are supported by sufficient credible evidence in the record. Indeed, [a]n appellate court's reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he has observed firsthand. However, a PCR court's interpretation of the law is afforded no deference, and is reviewed de novo. [F]or mixed questions of law and fact, [an appellate court] give[s] deference . . . to the supported factual findings of the trial court, but review[s] de novo the lower court's application of any legal rules to such factual findings.

[State v. Pierre, 223 N.J. 560, 576-77 (2015) (citations omitted).]

We have considered defendant's contention in Argument C. in

light of the record and applicable legal principals and conclude

it is without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2). We affirm on this issue

substantially for the reasons expressed by the second judge in

his July 15, 2014 written opinion.

We also find no merit in defendant's contention in Argument

A., but reverse and remand as to his contention in Argument B.

It is not improper for one judge to preside over a hearing and

another judge to issue a decision, so long as the deciding judge

"make[s] specific fact findings as required by Rule 1:7-4(a) and

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state[s] his or her conclusions of law." State v. Thompson, 405

N.J. Super. 163, 172 (App. Div. 2009), certif. denied, 209 N.J.

232 (2012). "Anything less is a disservice to the litigants,

the attorneys, and the appellate court." Ibid. (citations

omitted).

Although we take no issue with the second judge rendering

an opinion, it appears that the judge did so on an incomplete

record. The judge also did not address the ambiguous testimony

about defendant's claim of innocence, and made no factual

findings as to whether trial counsel was ineffective during plea

negotiations and whether but for counsel's deficiencies,

defendant would have pled guilty and suffered prejudice as a

result of going to trial. Accordingly, we reverse on this issue

and remand for the court to make the required factual findings

based on the entire record.

Affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion. We do not

retain jurisdiction.