STATE OF NEW JERSEY v. GREGORY CUEVAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6281-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY CUEVAS,

Defendant-Appellant.

_______________________________

May 10, 2011

Submitted November 17, 2010 - Decided

Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

01-02-0152.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Patricia Drozd, Designated

Counsel, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor,

attorney for respondent (Christopher W. Hsieh,

Senior Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant Gregory Cuevas appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.

On February 13, 2002, defendant pled guilty pursuant to a negotiated plea agreement1 to first degree aggravated manslaughter, N.J.S.A. 2C:11-4a. Defendant was a juvenile at the time he committed this offense. The Family Part granted the State's motion to transfer the case to the Criminal Division where defendant admitted to stabbing the victim as part of a fight that ensued involving over fifteen youths. Defendant admitted to arming himself with a knife while en route to the location of the fight.

The State agreed to recommend that defendant be sentenced to a fifteen-year term of imprisonment with an eighty-five percent period of parole ineligibility and five years of parole supervision as required by the No Early Release Act (NERA). N.J.S.A. 2C:43-7.2. On May 2, 2002, the court sentenced defendant in accordance with the plea agreement. Defendant did not seek appellate review of the sentence imposed by the trial court or otherwise file a direct appeal challenging the plea agreement or the validity of his guilty plea.

On August 1, 2007, defendant filed a pro se PCR petition claiming ineffective assistance of trial counsel based on his attorney's failure to file a direct appeal of the sentence and his failure to inform defendant of the mandatory five-year period of parole supervision required under NERA.

Defendant's court-assigned PCR counsel thereafter filed an amended petition and memorandum of law arguing that defendant did not voluntarily agree to plead guilty to aggravated manslaughter because trial counsel did not inform him of the five-year period of parole supervision under NERA. With respect to the timeliness of defendant's pro se petition, PCR counsel acknowledged that defendant filed the petition more than five years after the date he was sentenced. Counsel nevertheless argued that the time restraints in Rule 3:22-12 should be relaxed because the Public Defender's Office did not respond to defendant's request for assistance made in June 2003.

Judge Marmo2 denied defendant's petition without conducting an evidentiary hearing. After reviewing the record of the plea hearing, Judge Marmo noted defendant answered "yes" to the question seeking confirmation that defendant had reviewed the plea form with his attorney, understood the questions, had sufficient time to review the form with his attorney, was satisfied with the services of his attorney, and had answered the questions truthfully and voluntarily. The supplemental NERA form included defendant's "yes" answer to the following question:

Do you understand that because you have plead guilty to these charges the court must impose a "5" year term of parole supervision and that term will begin as soon as you complete the sentence [of] incarceration?

After reviewing the plea hearing in its totality, Judge Marmo found that defendant had not met his burden of establishing a prima facie case of ineffective assistance of counsel. Defendant now appeals raising the following arguments:

POINT I

THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HIS POST-CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT HIM.

We review a claim of ineffective assistance of counsel under the two prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate 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. Second, defendant must show that there exists "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.

Applying this standard to the facts before us, we reject defendant's argument in Point I substantially for the reasons expressed by Judge Marmo in his oral ruling of April 18, 2008. As noted by Judge Marmo, the supplemental NERA plea form executed by defendant provided all of the information necessary for him to make an informed intelligent decision to accept the State's plea offer. This is not a case where a defendant did not receive any information about the NERA parole supervision period. Cf. State v. Johnson, 182 N.J. 232, 235-36 (2005).

Defendant's argument in Point II, attacking the performance of his PCR counsel lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Defendant was originally charged with murder as part of a twelve-count indictment that also named Osmani Then as a co-defendant. The State agreed to amend the murder charge to the lesser included offense of aggravated manslaughter and to dismiss the remaining counts in the indictment against defendant.

2 Judge Marmo was the same judge who accepted defendant's guilty plea and thereafter sentenced him pursuant to the plea agreement.