                                NOT FOR PUBLICATION WITHOUT THE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-5356-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

PETER RALLIS,

     Defendant-Appellant.
____________________________

                    Argued May 22, 2019 – Decided June 7, 2019

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 13-03-
                    0502.

                    Jessica A. Wilson argued the cause for appellant
                    (Kalavruzos, Mumola, Hartman & Lento, LLC,
                    attorneys; Edward C. Bertucio, of counsel and on the
                    briefs; Elyse S. Schindel and Jessica A. Wilson, on the
                    briefs).

                    Ian D. Brater, Assistant Prosecutor, argued the cause
                    for respondent (Christopher J. Gramiccioni, Monmouth
                    County Prosecutor, attorney; Ian D. Brater, on the
                    brief).
PER CURIAM

      Defendant Peter Rallis appeals from a June 18, 2018 order denying his

post-conviction relief (PCR) petition. We affirm for the reasons set forth in the

thorough and well-reasoned decision of Judge Paul X. Escandon.

      We take the following facts from the record.          In January 2012, a

confidential informant (CI) contacted a member of the Monmouth County

Prosecutor's Office Narcotics Strike Force with information that a Holmdel

Township resident named "Pete" was involved in a large-scale cocaine

distribution operation. The CI provided the color, make, model, and license

plate of the suspect's vehicle, which motor vehicle records revealed was

registered to defendant's residence. The CI arranged four drug buys between an

undercover detective and defendant. Task force members observed defendant

exit his residence with envelopes containing cocaine, which he placed inside an

SUV adjacent to the residence, and then remove cash the detective had placed

in the vehicle to fund the drug buys.

      As a result, the task force obtained and executed a no-knock search

warrant for defendant's residence. The search warrant yielded nearly twelve

ounces of cocaine, $12,212 in cash, a digital scale, an electric money counter, a

ledger of narcotics sales, and other contraband.


                                                                         A-5356-17T3
                                        2
      Defendant and his wife, who was present when the warrant was executed,

were subsequently indicted on multiple drug possession and possession with

intent to distribute charges. Defendant filed a motion to suppress the evidence

seized alleging the judge who issued the warrant was biased, to compel the State

to divulge the identity of the CI, for a hearing, and for other relief. The trial

judge granted the request to divulge the identity of the CI. After doing so, the

State dismissed the first nine counts of the indictment related to the drug buys

and non-warrant related evidence.

      Defendant renewed his request for discovery and a hearing related to the

warrant judge's impartiality, but then withdrew the motions. The trial judge

denied defendant's motion to suppress. As a result, pursuant to a negotiated

plea, defendant pled guilty to first-degree possession of a controlled dangerous

substance with the intent to distribute, N.J.S.A. 2C:35-5(b)(1), and was

sentenced to a ten-year term of incarceration with forty-two months of parole

ineligibility. The State dismissed all charges against defendant's wife.

      Defendant appealed from his conviction and we affirmed. State v. Rallis,

No. A-5629-13 (App. Div. May 23, 2016). In the prior appeal, defendant raised

an argument similar to an argument set forth in his PCR petition. He claimed

the judge who issued the warrant should have recused himself because his


                                                                           A-5356-17T3
                                        3
brother worked for the prosecutor's office, which sought the warrant, and

therefore the trial judge should have suppressed the evidence. We concluded

there was "no evidence of actual bias or partiality by the warrant judge" to justify

recusal. Id. at 13-14. We further concluded the totality of the circumstances

did not require suppression of the evidence because "there was ample support

for the warrant." Id. at 22-23.

      In the PCR petition related to this appeal, defendant challenged his plea

and claimed: 1) he had a colorable claim of innocence on due process and

statutory entrapment grounds; 2) his prior counsel obtained exculpatory

information from the CI, which counsel did not share with the State; 3) he was

coerced into accepting the plea bargain; and 4) the State would not be prejudiced

if the plea were withdrawn.

      The non-plea related grounds for defendant's petition asserted his counsel

was ineffective because he: 1) pressured defendant into accepting a guilty plea

without using the information provided by the CI to achieve a better result; 2)

engaged in unethical conduct by urging defendant to retain a disbarred attorney

to prepare the appeal and to sell one of counsel's motorcycles for money; 3) did

not challenge the execution of the search warrant; 4) did not assert a meritorious

defense of due process and statutory entrapment based on conversations between


                                                                            A-5356-17T3
                                         4
the CI and defendant; and 5) as part of the motion to suppress, failed to argue

for the warrant judge's disqualification from any case involving defendant.

      Judge Escandon issued a twenty-two page written decision, which denied

defendant's petition without an evidentiary hearing.         The judge found

defendant's claims regarding disqualification of the warrant judge and validity

of the search warrant were previously rejected on appeal and procedurally barred

pursuant to Rule 3:22-5. The judge denied defendant's ineffective assistance of

counsel argument finding "[t]he issues regarding the [CI] and the other

potentially exculpatory [evidence] are purely speculative because a rational

defendant would not have rejected this plea." Likewise, the judge concluded

defendant's claim he had an entrapment defense failed because "[t]he prior

counts that related more specifically to controlled buys and the CI were dropped

as part of the plea agreement."

      The judge concluded defendant could not claim an ethical violation on the

part of his counsel because he never retained the disbarred attorney. Moreover,

the judge found no evidence of a causal connection between the alleged conduct

and defendant's guilty plea.




                                                                        A-5356-17T3
                                       5
        Judge Escandon rejected defendant's arguments for withdrawal of the

plea.    Addressing the State v. Slater1 factors, he concluded "[t]here is no

evidence in this record to support any claim of innocence." Moreover, he found

              plea counsel acted appropriately and professionally, . . .
              reviewed the case with defendant on several occasions
              and the plea and supplemental form with defendant.
              Defendant had ample time to discuss waiving his
              constitutional rights with plea counsel.       Defense
              counsel reviewed the discovery, indictment, and
              accusations. [P]lea counsel . . . discussed the penal
              consequences of the plea.

The judge noted the favorable nature of defendant's plea, namely, that he

received the minimum sentence and dismissal of the charges against his wife.

        This appeal followed.

        In his initial brief on appeal, defendant argues as follows:

              POINT I – THE TRIAL COURT ERRED IN
              DENYING    APPELLANT'S  MOTION     TO
              WITHDRAW HIS GUILTY PLEA/PETITION FOR
              POST-CONVICTION RELIEF.

              POINT II – AN EVIDENTIARY HEARING SHOULD
              BE GRANTED PURSUANT TO STATE V. HOENS.2

In his reply brief, defendant raises the following additional points:


1
    198 N.J. 145 (2007).
2
    No. A-4208-15 (App. Div. May 4, 2017).


                                                                           A-5356-17T3
                                          6
             A.  APPELLANT IS ENTITLED TO POST-
             CONVICTION    RELIEF   PURSUANT TO
                                       3
             STRICKLAND V. WASHINGTON.

             B.  APPELLANT IS ENTITLED TO WITHDRAW
             HIS GUILTY PLEA PURSUANT TO STATE V.
             SLATER.

                                        I.

       When the PCR court does not hold an evidentiary hearing, we "conduct a

de novo review[.]"     State v. Harris, 181 N.J. 391, 421 (2004).       To show

ineffective assistance of counsel, a defendant must satisfy the two-pronged test

of Strickland, 466 U.S. at 687, adopted by our Supreme Court in State v. Fritz,

105 N.J. 42, 67 (1987). "The defendant must demonstrate first that counsel's

performance was deficient, i.e., that 'counsel made errors so serious that counsel

was not functioning as the "counsel" guaranteed the defendant by the Sixth

Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland,

466 U.S. at 687). The "defendant must overcome a strong presumption that

counsel rendered reasonable professional assistance." Ibid. (citing Strickland,

466 U.S. at 689).          Second, "a defendant must also establish that the

ineffectiveness of his attorney prejudiced his defense. 'The defendant must

show that there is a reasonable probability that, but for counsel's unprofessional


3
    466 U.S. 668 (1984).
                                                                          A-5356-17T3
                                        7
errors, the result of the proceeding would have been different.'" Id. at 279-80

(quoting Strickland, 466 U.S. at 694).

      A PCR court need not grant an evidentiary hearing unless "a defendant

has presented a prima facie [case] in support of post-conviction relief." State v.

Marshall, 148 N.J. 89, 158 (1997) (alteration in original) (quoting State v.

Preciose, 129 N.J. 451, 462 (1992)). "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." Ibid. (citing Preciose, 129 N.J. at 463). The

court must view the facts "in the light most favorable to defendant." Ibid. (citing

Preciose, 129 N.J. at 462-63).

      Where a defendant challenges the validity of a plea, the court should

            consider and balance four factors in evaluating motions
            to withdraw a guilty plea: (1) whether the defendant has
            asserted a colorable claim of innocence; (2) the nature
            and strength of defendant's reasons for withdrawal; (3)
            the existence of a plea bargain; and (4) whether
            withdrawal would result in unfair prejudice to the State
            or unfair advantage to the accused.

            [Slater, 198 N.J. at 157-58.]

      Having considered defendant's claims under the aforementioned

standards, we affirm for the reasons set forth in Judge Escandon's decision. Rule

3:22-5 clearly barred defendant's arguments regarding the warrant and the judge


                                                                           A-5356-17T3
                                         8
who granted it. Notwithstanding, he presented no credible evidence of a prima

facie case of ineffective assistance of counsel or a basis to vacate his plea on

such grounds.

      Affirmed.




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