STATE OF NEW JERSEY v. HECTOR GOMEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0799-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HECTOR GOMEZ,

Defendant-Appellant.

___________________________

April 15, 2013

Submitted April 9, 2013 Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-10-1374.

Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).

TheodoreJ. Romankow,Union County Prosecutor, attorney forrespondent (MeghanV. Tomlinson, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Hector Gomez appeals from an April 21, 2011 order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

In 2008, defendant was arrested and charged with possession of two kilograms of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(1). Facing up to twenty years in prison if convicted of that first-degree offense, he accepted a plea agreement under which he would be sentenced as a second-degree offender. The prosecutor also agreed to recommend that the New Jersey sentence run concurrent to any sentence that might be imposed in Pennsylvania arising from the same drug deal.

At the plea hearing on October 28, 2009, defendant told Judge Joseph P. Donohue that he was not a United States citizen. Judge Donohue then asked defendant if he understood that "you are going to be deported as soon as [you're] sentenced on this charge." Defendant responded, "[w]ell, if that's God's will." The judge reminded defendant that deportation proceedings had already been commenced against him. Defendant further admitted to the judge that he had discussed with his attorney the immigration consequences of his guilty plea and understood that deportation was "a virtually certainty" because he was pleading guilty to a first-degree drug offense. Responding to the judge's questions, defendant acknowledged that if he went to trial and was convicted, he would be deported after serving his sentence, and his goal in pleading guilty was to limit the amount of prison time he had to serve before being deported. Defendant also indicated his complete satisfaction with his defense counsel. He then admitted that he possessed two kilograms of cocaine with intent to distribute.

Consistent with the terms of the plea bargain, Judge Donohue sentenced defendant to nine years in prison with three years of parole ineligibility. He awarded defendant 345 days of jail credit. In April 2010, defendant filed a pro se PCR petition, contending that his attorney rendered ineffective assistance of counsel by failing "to suppress the evidence," and failing to properly investigate defendant's "requests which could have supported the defense theory of the case." After counsel was appointed, the defense also asserted in general terms that defendant's trial attorney should have searched for helpful witnesses and should have attempted to learn "the identity and 'track record' of the law enforcement confidential source."

At the oral argument of the PCR petition, defendant's PCR counsel acknowledged that defendant's trial counsel had in fact filed both a motion to suppress evidence and a motion to reveal the identity of the informant. However, he argued that trial counsel did not tell defendant that the motions had been filed. The PCR attorney also confirmed that, after conferring with defendant, he was not raising any immigration-related issues.

Judge Donohue issued a thorough oral opinion on April 21, 2011, rejecting defendant's PCR claims. The judge noted that defendant actually pled guilty twice, although only the transcript of the later plea hearing was provided to the court with the PCR petition. The second plea hearing was necessary because the State needed to issue an amended accusation. The judge found that defendant would almost certainly have been convicted had he insisted on going to trial, given the strength of the State's case. He stated that defendant's trial counsel did an excellent job in getting defendant a favorable plea bargain, and the current PCR petition represented nothing more than "buyer's remorse."

On this appeal, defendant presents the following points for our consideration:

POINT ONE: THE COURT BELOW ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO: DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED (NOT RAISED BELOW).

Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add these comments.

In the context of a plea agreement, a defendant must establish that his counsel rendered ineffective assistance and "'that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial.'" State v. Nu ez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). To be entitled to an evidentiary hearing on a PCR petition, a defendant must present, through legally competent evidence, a prima facie case of ineffective assistance. State v. Preciose, 129 N.J. 451, 462-63 (1992). However, "bald assertions" are insufficient to satisfy that burden. State v. Cummings, 321 N.J Super.154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999).

In this case, defendant presented no evidence that additional investigation by his attorney would have revealed evidence helpful to the defense. Nor, in the circumstances, did defendant demonstrate a "reasonable probability" that he would have insisted on going to trial if his attorney had conducted further investigation. To the contrary, it was clear from the plea transcript that defendant knowingly and voluntarily accepted a very favorable plea agreement, with the understanding that he would be deported after serving his sentence.

Nor does this record support defendant's claim that his PCR counsel failed to present all of defendant's PCR arguments. See State v. Rue, 175 N.J. 1, 18-19 (2002). Those arguments were included in the brief his PCR counsel filed, and the attorney did his best to present the arguments at the PCR hearing. The attorney cannot be faulted for the lack of merit in the arguments defendant insisted on presenting.

Affirmed.