NOT FOR PUBLICATION WITHOUT THE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-5870-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLOS B. GONZALEZ,
Defendant-Appellant.
_________________________
Submitted December 11, 2019 – Decided February 7, 2020
Before Judges Koblitz and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, Indictment Nos.
11-08-1353 and 12-02-0307.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel,
on the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Roberta DiBiase,
Supervising Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Carlos Gonzalez appeals from the July 16, 2018 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
We glean these facts from the record. In 2011, defendant and three co-
defendants were charged in a four-count indictment with murder, N.J.S.A.
2C:11-3 and 2C:2-6; first-degree conspiracy to commit murder, N.J.S.A. 2C:5-
2 and 2C:11-3; first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; and
second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a) (the murder indictment). In 2012, defendant and one co-defendant were
charged in a one-count indictment with third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(5)(h) (the aggravated assault indictment). The murder indictment
stemmed from the 2010 shooting of two victims, one fatally, in connection with
gang-related activities. The aggravated assault indictment stemmed from
defendant punching a corrections officer in the county jail where he was
incarcerated pending trial on the murder indictment.
Represented by private counsel, on November 13, 2013, defendant entered
a negotiated guilty plea to an amended charge of first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a)(1), and aggravated assault of the corrections
officer. Under the terms of the plea agreement, the State agreed it would not
A-5870-17T4
2
seek a sentence in excess of twenty-five years, subject to an eighty-five percent
period of parole ineligibility pursuant to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, on the aggravated manslaughter charge, to run concurrent
with the aggravated assault. The State also agreed to move for the dismissal of
the remaining counts of the murder indictment as well as an unrelated 2010
indictment. At the February 26, 2014 sentencing hearing, without objection, an
attorney from plea counsel's firm represented defendant. The judge sentenced
defendant to an aggregate twenty-two-year term of imprisonment, subject to
NERA, in accordance with the plea agreement.
At the sentencing hearing, the judge imposed sentence after finding
aggravating factors three, five, and nine, and mitigating factor seven. See
N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will commit another
offense;" N.J.S.A. 2C:44-1(a)(5), "[t]here is a substantial likelihood that the
defendant is involved in organized criminal activity;" and N.J.S.A. 2C:44-
1(a)(9), "[t]he need for deterring the defendant and others from violating the
law[.]" See also N.J.S.A. 2C:44-1(b)(7), "[t]he defendant has no history of prior
delinquency or criminal activity or has led a law-abiding life for a substantial
period of time before the commission of the present offense[.]" Weighing the
factors, the judge was "clearly convinced [that] the aggravating factors
A-5870-17T4
3
substantially outweigh[ed] the mitigating factor[]." On February 10, 2015, we
affirmed the sentence on a Sentence Only Argument (SOA) calendar, see R. 2:9-
11, "conclud[ing] that the findings of fact regarding aggravating and mitigating
factors were based on competent and credible evidence in the record[.]"
On January 4, 2017, defendant filed a timely pro se PCR petition,
certifying that his attorney "failed to present . . . all of the mitigating factors
relevant to [his] case[,]" resulting in the denial of effective assistance of counsel.
Additionally, in a supplemental affidavit, defendant averred that his "plea
attorney was ineffective in failing to properly explain . . . the difference between
first[-]degree aggravated [manslaughter] and second[-]degree manslaughter[,]"
and had he been "properly" advised, he "would not have [pled] guilty" but would
have gone "to trial." In his supporting briefs, in addition to arguing that his
attorney failed "to argue" certain "mitigating factors," defendant asserted his
attorney "neglected to adequately consult with him[,]" and failed to "provide
discovery and review same with [him]."
Following oral argument, Judge James Blaney denied defendant's petition.
In a July 16, 2018 written decision, the judge reviewed the factual background
and procedural history of the case, applied the applicable legal principles, and
concluded defendant failed to establish a prima facie case of ineffective
A-5870-17T4
4
assistance of counsel (IAC). The judge found defendant "failed to show . . .
counsel's performance fell below the objective standard of reasonableness" set
forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or "that the outcome
would have been different" as required under "the second prong of the
Strickland/Fritz test." Additionally, in rejecting defendant's request for an
evidentiary hearing, the judge concluded defendant failed to present any issues
that could not be resolved by reference to the existing record.
Specifically, after considering defendant's claim that "there was an
'ongoing lapse of communication' between himself and counsel during the
proceedings," the judge rejected the claim as belied by the record. Relying on
defendant's colloquy at the plea hearing, Judge Blaney noted defendant "stated
under oath that he had 'more than enough time' to meet with [his attorney] before
he entered the plea agreement, that [his attorney] explained 'in detail' the nature
of both charges [defendant] ple[]d to, and that [his attorney] answered all of
[defendant's] questions to his satisfaction." Defendant also confirmed these
representations on "each page of the plea form[.]" Additionally, defendant
"stated on the record that he was 'more than satisfied' with [his attorney's]
representation of him." Likewise, "[defendant] stated on the record at his
A-5870-17T4
5
sentencing hearing that he was satisfied with the representation of both of his
attorneys."
Addressing defendant's assertion that "had he known of the discovery
contents[,]" he "would have taken th[e] case to trial," the judge pointed out that
defendant failed to "provide th[e] [c]ourt with any affidavits or information
explaining what discovery he claims he was unaware of at the time he ple []d,
nor does he explain how this discovery would have persuaded him to take the
case to trial." Thus, the judge rejected the claim as "a 'bald assertion' prohibited
by [State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)]."
Next, the judge addressed defendant's arguments that his attorney was
ineffective for failing to argue at sentencing mitigating factors two, seven, eight,
nine, and thirteen. See N.J.S.A. 2C:44-1(b)(2), "[t]he defendant did not
contemplate that his conduct would cause or threaten serious harm;" N.J.S.A.
2C:44-1(b)(8), "[t]he defendant’s conduct was the result of circumstances
unlikely to recur;" N.J.S.A. 2C:44-1(b)(9), "[t]he character and attitude of the
defendant indicate that he is unlikely to commit another offense;" and N.J.S.A.
2C:44-1(b)(13), "[t]he conduct of a youthful defendant was substantially
influenced by another person more mature than the defendant."
In rejecting these contentions, the judge explained:
A-5870-17T4
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Here, [defendant] admitted to shooting [the
victim], which resulted in his death. [Defendant]
further admitted to hitting a corrections officer with his
fist while in Ocean County Jail, which resulted in the
officer sustaining injuries. This [c]ourt does not find
that [defendant's] counsel was ineffective for failing to
argue that one who shoots or assaults another did not
contemplate that his conduct would cause serious harm
[in accord with mitigating factor two], nor does this
[c]ourt find that the circumstances were random
occurrences to require the finding of mitigating factor
eight.
Regarding mitigating factor seven, which the sentencing court in fact
found, Judge Blaney stated:
At the sentencing hearing, [defendant's attorney]
stated, "I would like to note that [defendant] is a young
man, [twenty-two-]years of age, who up until this point
has led a law abiding life. As you can see from his
record, he has no record." [1] Although counsel did not
directly argue for mitigating factor seven, he did inform
the [c]ourt of [defendant's] lack of a prior record . . . .
1
Counsel added:
"[W]e're here today because [defendant] . . . made an
extremely poor choice, and I . . . anticipate that when
the time comes for him to speak, he will acknowledge
that poor choice and he will also show extreme remorse.
So as a result of all of that, . . . I believe that the [c]ourt
should show some leniency towards [defendant] and
give him less than the [twenty-five] years bargained
for."
A-5870-17T4
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As to mitigating factor nine, the judge explained that the court "asked
[defendant] at the sentencing hearing if he wished to address the [c]ourt [,]" as a
result of which defendant "displayed his remorse to the court" for the court to
consider if it "chose to." Regarding mitigating factor thirteen, analogizing the
case to State v. Torres, 313 N.J. Super. 129 (App. Div. 1998), the judge
concluded "this [was] the same type of conduct that the Torres court found to be
a 'cold-blooded act' [to] which mitigating factor . . . [thirteen did] not apply."
Further, the judge found "no evidence" in the record that defendant "was
influenced by an older individual prior to committing the crime" to support
mitigating factor thirteen. Therefore, according to the judge, "counsel was not
ineffective for choosing not to argue this mitigating factor."
Turning to the prejudice prong of the Strickland test, the judge explained:
[Defendant] received a [twenty-two] year sentence
subject to NERA, for two separate indictments for two
separate charges of aggravated manslaughter and
aggravated assault. The aggravated manslaughter
charge allows for a maximum term of imprisonment of
thirty years. Charges dropped included first-degree
conspiracy to commit murder, first-degree attempted
murder, and second-degree possession of a weapon for
an unlawful purpose. These dropped charges all would
have exposed [defendant] to a substantially lengthy
sentence and [defendant] cannot show that had his
counsel argued these factors, his sentence would have
been reduced any more than it was already reduced.
A-5870-17T4
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The judge entered a memorializing order and this appeal followed.
On appeal, defendant raises the following single point for our
consideration:
POINT ONE
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR FAILING TO
COMMUNICATE, REVIEW DISCOVERY,
INVESTIGATE, AND REVIEW THE CHARGES
ADEQUATELY, ALL OF WHICH LED TO
INADEQUATE REPRESENTATION DURING PLEA
NEGOTIATIONS AND INADEQUATE ADVOCACY
AT SENTENCING.
Merely raising a claim for PCR does not entitle a defendant to an
evidentiary hearing. See Cummings, 321 N.J. Super. at 170. Rather, trial courts
should grant evidentiary hearings only if the defendant has presented a prima
facie claim of IAC, material issues of disputed fact lie outside the record, and
resolution of those issues necessitates a hearing. R. 3:22-10(b); State v. Porter,
216 N.J. 343, 355 (2013). A PCR court deciding whether to grant an evidentiary
hearing "should view the facts in the light most favorable to a defendant." State
v. Preciose, 129 N.J. 451, 463 (1992). However, "[a] court shall not grant an
evidentiary hearing" if "the defendant's allegations are too vague, conclusory or
speculative[.]" R. 3:22-10(e)(2). Indeed, the defendant "must do more than
A-5870-17T4
9
make bald assertions that he was denied the effective assistance of counsel. He
must allege facts sufficient to demonstrate counsel's alleged substandard
performance." Cummings, 321 N.J. Super. at 170.
In turn, we review under the abuse of discretion standard the PCR court's
determination to proceed without an evidentiary hearing. State v. Marshall, 148
N.J. 89, 157 (1997). We also typically review a PCR petition with "deference
to the trial court's factual findings . . . 'when supported by adequate, substantial
and credible evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (quoting Toll
Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). However, where,
as here, "no evidentiary hearing has been held, we 'may exercise de novo review
over the factual inferences drawn from the documentary record by the [PCR
judge].'" State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010)
(quoting Harris, 181 N.J. at 421). We also review de novo the legal conclusions
of the PCR judge. Harris, 181 N.J. at 415-16 (citing Toll Bros., 173 N.J. at 549).
To establish a prima facie claim of IAC, defendant must satisfy the two-
prong Strickland test: he must show that (l) "counsel's performance was
deficient" and he "made errors so serious that counsel was not functioning as the
'counsel' guaranteed . . . by the Sixth Amendment" to the United States
Constitution; and (2) "there is a reasonable probability that, but for counsel's
A-5870-17T4
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unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J. at 52. A reasonable
probability is defined as "a probability sufficient to undermine confidence in the
outcome." Id. at 694.
Under the first Strickland prong, "counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exe rcise
of reasonable professional judgment." Strickland, 466 U.S. at 690. Adequate
assistance of counsel must be measured by a standard of "reasonable
competence." State v. Jack, 144 N.J. 240, 248 (1996) (quoting Fritz, 105 N.J.
at 53). However, "'[r]easonable competence' does not require the best of
attorneys[.]" State v. Davis, 116 N.J. 341, 351 (1989). Under the second
Strickland prong, defendant must prove prejudice. Fritz, 105 N.J. at 52. In order
to establish the Strickland prejudice prong to set aside a guilty plea, "'a
[defendant] must convince the court that a decision to reject the plea bargain'"
and "insist on going to trial" would have been "rational under the
circumstances." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011)
(quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). That determination
should be "based on evidence, not speculation." Ibid. Because there is a strong
presumption that counsel "rendered adequate assistance and made all significant
A-5870-17T4
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decisions in the exercise of reasonable professional judgment[,]" Strickland, 466
U.S. at 690, a defendant "bears the burden of proving" both prongs of an IAC
claim "by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350
(2012).
Applying these standards, we affirm substantially for the reasons
expressed in Judge Blaney's thoughtful and thorough written opinion. We agree
with the judge that defendant failed to make a prima facie showing of ineffective
assistance of counsel under the Strickland/Fritz test, and we discern no abuse of
discretion in the denial of defendant's PCR petition without an evidentiary
hearing. Indeed, "[d]efendant must demonstrate a prima facie case for relief
before an evidentiary hearing is required, and the court is not obligated to
conduct an evidentiary hearing to allow defendant to establish a prima facie case
not contained within the allegations in his PCR petition." State v. Bringhurst,
401 N.J. Super. 421, 436-37 (App. Div. 2008).
We have considered all of defendant's contrary arguments in light of the
record and applicable legal principles, and conclude they are without sufficient
merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
A-5870-17T4
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STATE OF NEW JERSEY VS. CARLOS B. GONZALEZ (11-08-1353 AND 12-02-0307, OCEAN COUNTY AND STATEWIDE)
Combined Opinion