September 22, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAMON LEON, A/K/A ALFREDO BORRERO, EDUARDO DIAS, EDUARDO DIAZ, HIRAM PATRANA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-05-0688.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2009
Before Judges Baxter and Fall.
Defendant Ramon Leon appeals from a January 29, 2007 order that denied his first petition for post-conviction relief (PCR). We affirm.
Following a trial by jury, defendant was convicted of third-degree burglary of an automobile under Indictment No. 02-05-0688. He thereafter pled guilty to an unrelated indictment, No. 03-01-0064, which also charged third-degree burglary. The judge sentenced him on each indictment to a concurrent five-year term of imprisonment. We affirmed both convictions on direct appeal.*fn1
Defendant filed a timely PCR petition in which he asserted that he was denied a fair trial on Indictment No. 02-05-0688 because the court permitted a mid-morning break during cross-examination of a witness for the State without instructing the prosecutor not to speak with the witness during the break. Defendant also argued that trial counsel was ineffective because he: 1) caused the judge to instruct the jury on the lesser- included offense of criminal trespass--which would not otherwise have been presented to the jury--by arguing in summation that if defendant was guilty of any offense, he was guilty merely of criminal trespass, not burglary; 2) prejudiced the jury against defendant by arguing in summation that defendant had fled the scene; 3) failed to object to an improper summation by the prosecutor; 4) failed to request that certain evidence be dusted for fingerprints; and 5) failed to object to an illegal plea offer. Finally, defendant argued that appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel on direct appeal. In a lengthy oral opinion, Judge Barisonek concluded that an evidentiary hearing was not required and rejected each of the arguments defendant advanced. On appeal, defendant raises the following claims:
I. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
B. Defendant Was Denied Effective Assistance of Counsel by the Trial Attorney When He Asked the Trial Judge to Charge the Lesser[-]Included Offense of Trespass When the Defendant Denied That He Entered the Victim's Car.
C. Trial Counsel Made a Strategic Decision Without His Client's Consent, to Request a Charge on a Lesser-Included Offense, Altering the Evidentiary Picture, and the Inferences the Jury Was to Draw Them From.
D. Trial Counsel Conceded on Summation That Petitioner Fled the Crime Scene in Order to Avoid Accusation, Abandoning Significant Defense of Impeachment Evidence.
E. Defense Counsel Opened the Door for Prosecutorial Misconduct and Failed to Register Objections to Improper Remarks on the Prosecutor's Summation.
F. Counsel Failed to Request Key Pieces of Evidence to be Dusted for Fingerprints in Order to Link them to Petitioner.
G(1). Counsel Was Constitutionally Ineffective During Plea Negotiations by Erroneously Informing His Client that the Recent Jury Trial Conviction Would Result in the Imposition of an Extended Term had Petitioner Decided to Stand Trial on Ind. No. 03-01-00064-I, and by Not Raising the Argument that the Sentence the Prosecutors Offered in their Plea Bargain was Constitutionally Illegal.
G(2). Defense Counsel's Numerous Errors and Lack of Respect for Petitioner's Strategies as to How to Conduct the Defense of His Own Trial Led Defendant to Plead Guilty to Indictment Number 03-01-00064-I. Defendant Was Unable to Trust His Lawyer to Perform the Defense of the Other Indictment Had He Elected to Stand Trial as Were his Intentions Until the Ineffectiveness and Disloyalty Episodes Occurred.
[H]. Defendant Received Ineffective Assistance of Appellate Counsel Because Appellate Counsel Failed to Raise on Direct Appeal Defendant's Claims of Ineffective Assistance of Counsel Raised Herein.
II. DEFENDANT'S CONVICTION SHOULD BE VACATED BECAUSE THE TRIAL JUDGE IN ORDERING A MORNING BREAK IN THE TESTIMONY OF A KEY WITNESS FAILED TO INSTRUCT THE WITNESS AND THE ATTORNEYS NOT TO SPEAK TO EACH OTHER DURING THIS RECESS
We have carefully reviewed defendant's contentions in light of the record and applicable law and conclude that his claims lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Barisonek in his comprehensive and well-reasoned oral opinion of January 29, 2007.