                                     RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-4781-17T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ERIC CLEMENTE RANGEL,
a/k/a HUGO OLIVARES,

     Defendant-Appellant.
_________________________

                   Submitted June 18, 2019 – Decided July 12, 2019

                   Before Judges Koblitz and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Indictment No. 07-12-1534.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Al Glimis, Designated Counsel, on the
                   brief).

                   Fredric M. Knapp, Morris County Prosecutor, attorney
                   for respondent (John K. McNamara, Jr., Chief Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant appeals from the January 10, 2018 order denying his motion

for post-conviction relief (PCR) after oral argument and without a plenary

hearing. Defendant, who was found by police brutally sexually assaulting a high

school senior in April 2007, and subsequently convicted at trial, claims his trial

counsel was ineffective for not providing him with copies of some of the

discovery, which he now says might have convinced him to accept the plea

agreement offered by the State. He also alleges trial counsel was ineffective by

failing to have the defense expert interview the victim. After reviewing the

record in light of the contentions advanced on appeal, we affirm.

      Our Supreme Court reviewed in detail the strong evidence produced by

the State during trial. State v. Rangel, 213 N.J. 500, 503-04 (2013). After

significant appellate history, defendant remains convicted of second-degree

sexual assault, N.J.S.A. 2C:14-2(c)(1); second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1); and fourth-degree obstruction of justice, N.J.S.A.

2C:29-1. He is serving an aggregate sentence of seventeen years in prison,

subject to the eighty-five percent parole disqualifier of the No Early Release

Act, N.J.S.A. 2C:43-7.2 (NERA), followed by three years of parole supervision.

       Defendant raises the following issues on appeal:

            POINT I:   THE PCR COURT ABUSED ITS
            DISCRETION BY DENYING DEFENDANT'S PCR

                                                                         A-4781-17T2
                                        2
            PETITION AND REFUSING TO HOLD AN
            EVIDENTIARY HEARING WHERE DEFENDANT
            ESTABLISHED A PRIMA FACIE CASE THAT HIS
            TRIAL COUNSEL'S REPRESENTATION WAS
            DEFICIENT UNDER STRICKLAND BECAUSE
            COUNSEL FAILED TO PROVIDE PETITIONER
            WITH DISCOVERY AND FAILED TO HAVE P.F.
            INTERVIEWED BY THE DEFENSE EXPERT,
            CAUSING PETITIONER TO NOT BE FULLY
            INFORMED WHEN HE DECIDED TO PROCEED TO
            TRIAL AND RESULTING IN PETITIONER'S
            CONVICTIONS FOR MULTIPLE OFFENSES.

            A. FAILURE TO PROVIDE DISCOVERY TO
            DEFENDANT.

            B. TRIAL COUNSEL WAS INEFFECTIVE FOR
            FAILING TO HAVE P.F. INTERVIEWED BY DR.
            VERDON.

      Where the PCR court does not conduct an evidentiary hearing, we review

the PCR judge's determination de novo. State v. Jackson, 454 N.J. Super. 284,

291 (App. Div. 2018). A PCR petitioner carries the burden to establish the

grounds for relief by a preponderance of the credible evidence. State v.

Goodwin, 173 N.J. 583, 593 (2002). To sustain that burden, the petitioner must

allege and articulate specific facts that "provide the court with an adequate basis

on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).




                                                                          A-4781-17T2
                                        3
      We apply the Strickland-Fritz1 standard to a defendant's claims of

ineffective assistance by both trial and appellate counsel. State v. Gaither, 396

N.J. Super. 508, 513 (App. Div. 2007). The defendant must demonstrate that

his   counsel's      representation   "fell       below   an   objective   standard    of

reasonableness," and "the defense was prejudiced by counsel's action or

inaction."   Ibid.     There must be a reasonable probability that without the

unprofessional errors the result would have been different. Id. at 514; see also

State v Chew, 179 N.J. 186, 203-04 (2004).

      "In order for a claim of ineffective assistance of counsel to entitle a PCR

petitioner to an evidentiary hearing, 'bald assertions' are not enough -- rather,

the defendant 'must allege facts sufficient to demonstrate counsel's alleged

substandard performance.'" State v. Jones, 219 N.J. 298, 311-12 (2014) (quoting

State v. Porter, 216 N.J. 343, 355 (2013)).

      Defendant claims that had his attorney furnished him with a complete

copy of discovery prior to trial, he would have accepted the State's pre-trial offer

of a maximum exposure of nine years in prison with NERA in exchange for a

guilty plea. Defendant alleged through counsel at the PCR hearing that, prior to


1
  Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Fritz, 105
N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).


                                                                               A-4781-17T2
                                              4
trial, he did not receive a copy of the 9-1-1 tape of the victim's call to the police

or the grand jury transcript, nor see the victim's clothes or photographs of her

taken after the assault. He did not deny knowing about the existence of these

pieces of evidence, which were discussed at pretrial hearings. He also did not

deny receiving all other discovery, including the police reports and medical

records of the victim, whose nose was broken during the assault. Defendant's

"bald assertion" that possession of those pieces of evidence would have

convinced him to plead guilty, when he was well aware that the police pulled

him off the victim after she called them to the scene, is unconvincing and does

not necessitate an evidentiary hearing. See Jones, 219 N.J. at 311-12.

      Defendant's other claim, that his expert witness should have interviewed

the victim, is speculative. The victim was attacked as she was returning from a

birthday party. Her urine tested positive for alcohol and cannabis metabolites

at the hospital. Dr. Verdon, the defense expert witness, testified only at a Rule

104 hearing. He testified that the cannabis metabolites in the victim's urine

could indicate that she was unable to accurately perceive and recall the assault,

depending on when she ingested the cannabis. The trial judge admitted the

evidence through medical personnel that the victim tested positive for alcohol,

but not the cannabis evidence. This pre-trial evidentiary ruling was not raised


                                                                            A-4781-17T2
                                         5
as an issue on direct appeal. See R. 3:22-4 (barring any ground for post-

conviction relief "not raised . . . in any appeal" unless the issue "could not have

reasonably have been raised," preclusion "would result in fundamental

injustice," or "denial of relief would be contrary to a new rule of constitutional

law").     The victim told medical personnel she had been drinking, so her

impairment was not contested. At trial, defense counsel cross-examined her

extensively about this issue as well as conflicts in her prior statements.

         No certification from the expert or the victim was proffered by defendant

at the PCR hearing. Defendant speculated that had the expert been permitted to

interview the victim, the expert would have determined when she ingested

cannabis, and would have been allowed to so testify, which then would have

caused the jury to reach a different verdict. The jury knew the victim had been

drinking at a party. Given the overwhelming evidence of defendant's guilt, and

the speculative nature of the cannabis evidence, we see no need for a hearing as

to this claim.

         The PCR judge properly dismissed defendant's claims of ineffective

assistance of counsel as "bald assertions" absent any basis in logic or fact.

         Affirmed.




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