NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0361-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL GOMES, a/k/a MICHAEL WELLS,
Defendant-Appellant. ___________________________________
Submitted January 25, 2017 – Decided March 22, 2017
Before Judges Accurso and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-09-1698.
Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Frances Tapia Mateo, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant, Michael Gomes, appeals from an order denying his
petition for post-conviction relief (PCR) after oral argument,
without an evidentiary hearing. We affirm. A grand jury charged defendant with first-degree robbery,
N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon
for unlawful purposes, N.J.S.A. 2C:39-4a (count two); second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, (count
three); and third-degree receiving stolen property, N.J.S.A.
2C:20-7 (count four).
Pursuant to a plea agreement on May 8, 2014, defendant pled
guilty to count three of the indictment. Prior to sentencing, on
June 19, 2014, defendant filed a pro se motion seeking to have
trial counsel relieved and to withdraw his guilty plea. Based
upon that motion, a new attorney was appointed to represent
defendant.
On February 20, 2015, defendant appeared for a hearing on the
motion with his new counsel. Defendant withdrew his motion and
advised the judge he was prepared to proceed with sentencing. That
same day, defendant was sentenced to a five-year state prison term
with three-years' parole ineligibility. Appropriate fines and
penalties were imposed. The remaining counts of the indictment
were dismissed.
On March 9, 2015, defendant filed a pro se PCR. Four months
later, defendant's PCR counsel filed a certification on behalf of
defendant and submitted a supplemental brief. In his PCR,
defendant argued that his counsel was ineffective for failing to
2 A-0361-15T1 review the case, failing to provide defendant with discovery,
failing to apprise defendant of the strengths and weaknesses of
the State's evidence, and failing to investigate the plea bargain's
effect on pending criminal charges against him in Massachusetts.
In a thorough and well-reasoned oral opinion, the judge denied
the petition finding that defendant's arguments primarily amounted
to vague allegations and the assertions were "directly contrary
to the statements [defendant] made under oath at the time he
entered his plea." Specifically, the judge pointed to defendant's
statement during the plea that counsel fully discussed the case,
its facts and circumstances, and his potential defenses. The
judge also noted that counsel properly apprised defendant of his
sentence exposure, explaining that defendant's prior offenses made
him eligible for an extended prison term if convicted after trial.
Defendant alleged that his second trial counsel did not make
a sufficient effort to determine the status of the pending
Massachusetts charges, and argued that this would have had a "big
effect" on the New Jersey criminal charges.1 The judge disagreed.
Subsequent to the plea, the judge noted those charges remained
pending due to an issue with the testing of the narcotics involved.
1 There is nothing in the record beyond defendant's bald assertion as to whether the Massachusetts criminal charges or their status could have had any impact on the New Jersey charges.
3 A-0361-15T1 The judge found this issue could not have been reasonably
anticipated by defendant's counsel, and concluded the argument was
without merit.
Defendant raises the following point on appeal:
POINT I
BY FAILING TO INVESTIGATE THE OFFENSE, FAILING TO GIVE [DEFENDANT] A COPY OF HIS DISCOVERY SO THAT [DEFENDANT] COULD GO OVER THE STATE'S PROOFS WITH HIS [ATTORNEY], FAILING TO MEET WITH [DEFENDANT], AND, FAILING TO FILE A MOTION TO WITHDRAW [DEFENDANT'S] GUILTY PLEA, COUNSEL WAS INEFFECTIVE IN VIOLATION OF [DEFENDANT'S] RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
"Post-conviction relief is New Jersey's analogue to the
federal writ of habeas corpus." State v. Preciose, 129 N.J. 451,
459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled
to post-conviction relief if there was a "[s]ubstantial denial in
the conviction proceedings of defendant's rights under the
Constitution of the United States or the Constitution or laws of
the State of New Jersey[.]" "A petitioner must establish the
right to such relief by a preponderance of the credible evidence."
Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain
that burden, specific facts" that "provide the court with an
adequate basis on which to rest its decision" must be articulated.
State v. Mitchell, 126 N.J. 565, 579 (1992).
4 A-0361-15T1 Claims of constitutionally ineffective assistance of counsel
are well suited for post-conviction review. See R. 3:22-4(a)(2);
Preciose, supra, 129 N.J. at 460. In determining whether a
defendant is entitled to relief on the basis of ineffective
assistance of counsel, New Jersey courts apply the two-prong test
articulated by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.
2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648,
658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984).
Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-
50 (1987).
Under the first prong of the Strickland test, a "defendant
must show that [defense] counsel's performance was deficient."
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693. Under the second prong, a defendant must demonstrate
"a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In demonstrating that counsel's performance was deficient
under the first prong of Strickland, a defendant must overcome "a
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Fritz, supra, 105
5 A-0361-15T1 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct.
at 2065, 80 L. Ed. 2d at 694).
In satisfying the second prong, because prejudice is not
presumed, a defendant must typically demonstrate "how specific
errors of counsel undermined the reliability of the finding of
guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047
n.26, 80 L. Ed. 2d at 668 n.26 (citation omitted); see also Roe v.
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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-0361-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL GOMES, a/k/a MICHAEL WELLS,
Defendant-Appellant. ___________________________________
Submitted January 25, 2017 – Decided March 22, 2017
Before Judges Accurso and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-09-1698.
Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Frances Tapia Mateo, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant, Michael Gomes, appeals from an order denying his
petition for post-conviction relief (PCR) after oral argument,
without an evidentiary hearing. We affirm. A grand jury charged defendant with first-degree robbery,
N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon
for unlawful purposes, N.J.S.A. 2C:39-4a (count two); second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, (count
three); and third-degree receiving stolen property, N.J.S.A.
2C:20-7 (count four).
Pursuant to a plea agreement on May 8, 2014, defendant pled
guilty to count three of the indictment. Prior to sentencing, on
June 19, 2014, defendant filed a pro se motion seeking to have
trial counsel relieved and to withdraw his guilty plea. Based
upon that motion, a new attorney was appointed to represent
defendant.
On February 20, 2015, defendant appeared for a hearing on the
motion with his new counsel. Defendant withdrew his motion and
advised the judge he was prepared to proceed with sentencing. That
same day, defendant was sentenced to a five-year state prison term
with three-years' parole ineligibility. Appropriate fines and
penalties were imposed. The remaining counts of the indictment
were dismissed.
On March 9, 2015, defendant filed a pro se PCR. Four months
later, defendant's PCR counsel filed a certification on behalf of
defendant and submitted a supplemental brief. In his PCR,
defendant argued that his counsel was ineffective for failing to
2 A-0361-15T1 review the case, failing to provide defendant with discovery,
failing to apprise defendant of the strengths and weaknesses of
the State's evidence, and failing to investigate the plea bargain's
effect on pending criminal charges against him in Massachusetts.
In a thorough and well-reasoned oral opinion, the judge denied
the petition finding that defendant's arguments primarily amounted
to vague allegations and the assertions were "directly contrary
to the statements [defendant] made under oath at the time he
entered his plea." Specifically, the judge pointed to defendant's
statement during the plea that counsel fully discussed the case,
its facts and circumstances, and his potential defenses. The
judge also noted that counsel properly apprised defendant of his
sentence exposure, explaining that defendant's prior offenses made
him eligible for an extended prison term if convicted after trial.
Defendant alleged that his second trial counsel did not make
a sufficient effort to determine the status of the pending
Massachusetts charges, and argued that this would have had a "big
effect" on the New Jersey criminal charges.1 The judge disagreed.
Subsequent to the plea, the judge noted those charges remained
pending due to an issue with the testing of the narcotics involved.
1 There is nothing in the record beyond defendant's bald assertion as to whether the Massachusetts criminal charges or their status could have had any impact on the New Jersey charges.
3 A-0361-15T1 The judge found this issue could not have been reasonably
anticipated by defendant's counsel, and concluded the argument was
without merit.
Defendant raises the following point on appeal:
POINT I
BY FAILING TO INVESTIGATE THE OFFENSE, FAILING TO GIVE [DEFENDANT] A COPY OF HIS DISCOVERY SO THAT [DEFENDANT] COULD GO OVER THE STATE'S PROOFS WITH HIS [ATTORNEY], FAILING TO MEET WITH [DEFENDANT], AND, FAILING TO FILE A MOTION TO WITHDRAW [DEFENDANT'S] GUILTY PLEA, COUNSEL WAS INEFFECTIVE IN VIOLATION OF [DEFENDANT'S] RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
"Post-conviction relief is New Jersey's analogue to the
federal writ of habeas corpus." State v. Preciose, 129 N.J. 451,
459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled
to post-conviction relief if there was a "[s]ubstantial denial in
the conviction proceedings of defendant's rights under the
Constitution of the United States or the Constitution or laws of
the State of New Jersey[.]" "A petitioner must establish the
right to such relief by a preponderance of the credible evidence."
Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain
that burden, specific facts" that "provide the court with an
adequate basis on which to rest its decision" must be articulated.
State v. Mitchell, 126 N.J. 565, 579 (1992).
4 A-0361-15T1 Claims of constitutionally ineffective assistance of counsel
are well suited for post-conviction review. See R. 3:22-4(a)(2);
Preciose, supra, 129 N.J. at 460. In determining whether a
defendant is entitled to relief on the basis of ineffective
assistance of counsel, New Jersey courts apply the two-prong test
articulated by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.
2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648,
658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984).
Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-
50 (1987).
Under the first prong of the Strickland test, a "defendant
must show that [defense] counsel's performance was deficient."
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693. Under the second prong, a defendant must demonstrate
"a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In demonstrating that counsel's performance was deficient
under the first prong of Strickland, a defendant must overcome "a
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Fritz, supra, 105
5 A-0361-15T1 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct.
at 2065, 80 L. Ed. 2d at 694).
In satisfying the second prong, because prejudice is not
presumed, a defendant must typically demonstrate "how specific
errors of counsel undermined the reliability of the finding of
guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047
n.26, 80 L. Ed. 2d at 668 n.26 (citation omitted); see also Roe v.
Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L.
Ed. 2d 985, 998 (2000). There must be "a probability sufficient
to undermine confidence in the outcome." Strickland, supra, 466
U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
The United States Supreme Court has applied these principles
to a criminal defense attorney's representation of an accused in
connection with a plea negotiation. Lafler v. Cooper, 566 U.S.
156, 162-163, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07
(2012); Missouri v. Frye, 566 U.S. 134, 144 132 S. Ct. 1399, 1407-
08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate
with "reasonable probability" that the result would have been
different had he received proper advice from his trial
attorney. Lafler, supra, 566 U.S. at 163, 132 S. Ct. at 1384, 182
L. Ed. 2d at 407 (citing Strickland, supra, 466 U.S. at 694, 104
S. Ct. at 2068, 80 L. Ed. 2d at 698).
6 A-0361-15T1 Review of an order granting or denying PCR contains
consideration of mixed questions of law and fact. State v. Harris,
181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S.
Ct. 2973, 162 L. Ed. 2d 898 (2005). The appellate court defers
to a PCR court's factual findings and will uphold those findings
that are "supported by sufficient credible evidence in the record."
State v. Nash, 212 N.J. 518, 540 (2013) (citations omitted).
However, a PCR court's interpretations of law are provided no
deference and are reviewed de novo. Id. at 540-41.
On appeal, defendant contends he received ineffective
assistance of counsel since his counsel failed to review the case,
failed to provide him with discovery, failed to apprise defendant
of the strengths and weaknesses of the State's evidence, and failed
to investigate the plea bargain's effect on his pending criminal
charges in Massachusetts.
We view defendant's criticism of his counsel's performance
as directed at his post-conviction dissatisfaction with the plea
agreement. In essence, defendant alleges that, but for his
counsel's unprofessional errors, he would not have entered into
the plea. The record belies that bald allegation. See State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied,
162 N.J. 199 (1999) (" A petitioner must do more than make bald
7 A-0361-15T1 assertions that he was denied the effective assistance of
counsel.")
After the terms of the plea agreement were placed on the
record by counsel, the judge, who was also the PCR judge, addressed
defendant regarding his understanding of its terms. The judge
specifically addressed defendant's right to go to trial and the
consequences of pleading guilty to the charged offense. The judge
also alerted defendant to the imposition of parole ineligibility
and inquired whether he had questions for the court or his counsel.
At the conclusion of the judge's instructions, counsel questioned
defendant about the circumstances surrounding the commission of
the offense. Defendant acknowledged his culpability, specifically
as to the possession of a weapon charge for which he was pleading
guilty. Despite the opportunity to do so, defendant did not
express reticence in entering the plea based upon the arguments
he now raises; that he was uniformed by a lack of discovery or a
lack of knowledge about the strengths and weaknesses of the State's
case.
Regarding the plea process, a guilty plea may not be entered
without the judge first addressing defendant personally and
determining by inquiry of defendant and others, in the court's
discretion, that there is a factual basis for the plea and that
the plea is made voluntarily, with an understanding of the nature
8 A-0361-15T1 of the charges and consequences of the plea. R. 3:9-2; State v.
Kovack, 91 N.J. 476, 484 (1982); accord State v. Simon, 161 N.J.
416, 443 (1999); State v. Barboza, 115 N.J. 415, 420-21 (1989);
State v. Howard, 110 N.J. 113, 122 (1988); State v. Sainz, 107
N.J. 283, 292-93 (1987). Here, the "cold record" not only supports
a finding that the plea hearing complied with R. 3:9-2, the
substance of the hearing directly refutes defendant's arguments
of ineffective assistance.
Additionally, the plea agreement permitted defendant to plead
guilty to one count of a four-count indictment, which included a
count for first-degree robbery. The agreement called for a five-
year-term of imprisonment subject to a parole disqualifier.
However, if convicted after trial on the other charges, defendant
was subject to a more severe aggregate sentence of incarceration,
including eighty-five percent parole ineligibility subject to the
"No Early Release Act" on the robbery. Notably, the State's proofs
included a co-defendant's statement implicating defendant.
Placed in context, we are satisfied that counsel's
performance with respect to his obtaining the plea agreement was
well within the minimum standard of effective assistance of
counsel. "The test is not whether defense counsel could have done
better, but whether he [or she] met the constitutional threshold
for effectiveness." State v. Nash, supra, 212 N.J. at 543.
9 A-0361-15T1 The record is devoid of any basis to support the finding that
counsel's performance was deficient or that he was not functioning
in a manner guaranteed by the Sixth Amendment. See State v.
Gaitan, 209 N.J. 339, 349-50 (2012) (citation omitted), cert.
denied, ____ U.S. ____, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
Therefore, we conclude defendant has not made out a prima facie
case of ineffective assistance of counsel. Preciose, supra, 129
N.J. at 463.
Notwithstanding our determination as to the failure to make
out a prima facie case, we briefly address the second Strickland
prong. Following our review of the record, we hold with respect
to the second prong that defendant has also failed to demonstrate
how any alleged deficiency resulted in a prejudice that, "but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, supra, 466 U.S. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J.
at 52 (citations omitted).
Finally, we reject defendant's argument that it was error to
deny the PCR without an evidentiary hearing. "An evidentiary
hearing . . . is required only where the defendant has shown a
prima facie case and the facts on which he relies are not already
of record." Pressler & Verniero, Current N.J. Court Rules, comment
2 on R. 3:22-10 (2015). The mere raising of a claim for PCR does
10 A-0361-15T1 not entitle defendant to an evidentiary hearing. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied,
162 N.J. 199 (1999). As defendant failed to establish a prima
facie case of ineffective assistance of counsel, no evidentiary
hearing was required.
In light of our review of the record, we conclude defendant's
arguments lack sufficient merit to warrant discussion in a written
opinion to the extent not already addressed. R.2:11-3(e)(2).
Affirmed.
11 A-0361-15T1