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NOT FOR PUBLICATION WITHOUT THE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).

2 A-4610-16T4
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

3 A-4610-16T4
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)).

5 A-4610-16T4
 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.

7 A-4610-16T4