STATE OF NEW JERSEY VS. NELSON GOMEZ (09-05-1146, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4610-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NELSON GOMEZ,
Defendant-Appellant.
_______________________________
Submitted July 23, 2018 – Decided August 3, 2018
Before Judges Whipple and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
09-05-1146.
Joseph E. Krakora, Public Defender, attorney
for appellant (Suzannah Brown, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief; Emily M. M. Pirro, Legal
Assistant, on the brief).
PER CURIAM
Defendant Nelson Gomez appeals from the February 28, 2017
order denying of his petition for post-conviction relief (PCR)
without an evidentiary hearing. After considering the relevant
facts in light of the applicable legal principles, we affirm.
On May 29, 2009, defendant was indicted and charged with
first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1);
and second-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a) stemming from allegations he sexually abused six year
old N.B.
A number of lawyers represented defendant throughout the
proceedings. At least one lawyer, Barry Shapiro, filed motions
for Miranda1 and N.J.R.E. 803(c)(27) hearings, and in March 2010
sent discovery requests to the State. In May 2010, John Goins
became defendant's lawyer.
On September 27, 2010, defendant withdrew his pretrial
motions and on October 13, 2010, defendant entered a guilty plea
to the first count of the indictment, amended to second-degree
sexual assault, N.J.S.A. 2C:14-2(b). In exchange, the State
recommended the dismissal of the second count, a sentence of eight
years, with an eighty-five percent period of parole ineligibility,
Megan's Law consequences, parole supervision for life, no victim
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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contact, and restitution. The judge questioned defendant
thoroughly about the plea form, including the portions about
Megan's Law and parole supervision for life, ensured he understood
his right to a trial, and he was not coerced into accepting the
plea agreement. Defendant testified he touched the chest of a
young girl, between the age of six and thirteen, outside of her
clothing in order to sexually gratify himself. The court accepted
defendant's guilty plea.
On March 21, 2011, Christopher Campbell substituted as
defendant's attorney and moved to withdraw the guilty plea, arguing
defendant's prior attorneys were ineffective for their failure to
file motions, and defendant's plea allocution was deficient. These
motions were heard by the Honorable Jamie Perri, J.S.C., in May
2011.
After reviewing the plea transcript, Judge Perri confirmed
the defendant was not under the influence of drugs or alcohol,
entered the plea agreement voluntarily, and free of any force,
coercion, or threats. The judge examined defendant in detail
regarding his understanding of the plea agreement, and his
acknowledgment under oath that he had read and understood the
terms of the plea agreement and had entered the agreement freely.
Further, defendant reviewed the plea agreement with his attorney
and indicated his satisfaction with his attorney's services. Judge
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Perri found defendant pointed to no colorable facts supporting his
claim of innocence, State v. Slater, 198 N.J. 145, 157-58 (2009).
Defendant's previous attorneys had prepared and filed motions and
thus his claim of ineffective assistance was without support, the
existence of a plea bargain weighed against withdrawal, and the
withdrawal of the plea would force a young child to testify.
Lastly, Judge Perri rejected defendant's argument regarding his
plea allocution, finding the judge's use of the word "chest"
instead of the statutory language "breast" was "nothing more than
semantics." As such, she denied defendant's motion to withdraw
his plea and sentenced defendant in accordance with the plea
agreement.
On October 16, 2015, defendant filed a pro se petition for
PCR. After PCR counsel entered an appearance, defendant filed an
amended petition in October 2016 asserting prior lawyers were
ineffective for their failure: (1) to investigate the case, (2)
to obtain DCPP records, (3) to file various motions, and (4) advise
defendant of the consequences of the plea. Defendant also asserted
his petition was not procedurally barred by Rule 3:22-4 because
there was not a sufficient record from which to make a direct
appeal.
On February 17, 2017, the Honorable Joseph W. Oxley, J.S.C.,
heard oral argument on the petition, and denied defendant's
4 A-4610-16T4
petition in a February 28, 2017 written decision addressing all
defendant's arguments and denying defendant's petition. He found
defendant's claims procedurally barred by Rules 3:22-4 and 3:22-5
because defendant had raised the same arguments during his motion
to withdraw his guilty plea, Judge Perri determined the ineffective
assistance of counsel claims at that time, and fundamental
injustice would not result because defendant knowingly and
voluntarily entered into the plea. Despite finding defendant's
claims were procedurally barred, Judge Oxley also denied
defendant's PCR claims on their merits.
This appeal followed. We review the PCR judge's legal
conclusions under a de novo standard. State v. Harris, 181 N.J.
391, 415-16 (2004) (citing Toll Bros. v. Twp. of W. Windsor, 173
N.J. 502, 549 (2002)). We review a PCR petition with deference
to the trial court's factual findings. State v. Nash, 212 N.J.
518, 540 (2013) (citations omitted). We "give deference to those
findings of the trial judge which are substantially influenced by
his opportunity to hear and see the witnesses and to have the
'feel' of the case, which a reviewing court cannot enjoy." State
v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42
N.J. 146, 161 (1964)).
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To prevail on a claim of ineffective assistance of counsel,
defendant must satisfy the two-prong Strickland2 test: (l)
counsel's performance was deficient, and he made errors that were
so egregious counsel was not functioning effectively as guaranteed
by the Sixth Amendment to the United States Constitution; and (2)
"defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at
687; State v. Fritz, 105 N.J. 42, 52 (1987).
Under the first prong, "counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment." Strickland,
466 U.S. at 690. The court must determine whether the acts or
omissions of counsel "were outside the wide range of professionally
competent assistance." Ibid. Adequate assistance of counsel must
be measured by a standard of "reasonable competence." State v.
Jack, 144 N.J. 240, 248 (1996) (citing Fritz, 105 N.J. at 53).
Under the second prong of Strickland, defendant must prove
prejudice. Fritz, 105 N.J. at 52. He must show a "reasonable
probability" that counsel's deficient performance affected the
outcome of the proceeding. Strickland, 466 U.S. at 694. A
2
Strickland v. Washington, 466 U.S. 668 (1984).
6 A-4610-16T4
reasonable probability is defined as "a probability sufficient to
undermine confidence in the outcome." Ibid. Applying these
standards, and having undertaken a thorough review of the record
and having considered the arguments raised, we affirm for the
reasons expressed by Judge Oxley in his through written decision.
Affirmed.
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