STATE OF NEW JERSEY v. COREY GOMEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3976-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COREY GOMEZ,

Defendant-Appellant.

________________________________________________________________

December 3, 2010

Submitted November 15, 2010 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-12-1651.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney forrespondent (SimonLouis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Corey Gomez, appeals from the November 13, 2007 order denying his petition for post-conviction relief (PCR). We affirm.

Defendant confessed to committing two separate armed robberies, four days apart against different victims. In each case, he wielded a handgun or imitation handgun. In one of them he acted alone, and in the other there was a co-perpetrator. With the assistance of counsel, defendant entered into a plea agreement recommending an overall sentence not to exceed thirteen years imprisonment, subject to an 85% parole disqualifier and five years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At sentencing, the judge undercut the plea agreement recommendation and imposed concurrent ten-year NERA sentences.

Defendant appealed, and the matter was placed on our excessive sentencing oral argument calendar. See R. 2:9-11. We affirmed defendant's conviction and sentence.

Defendant then filed his PCR petition. He raised two arguments: (1) his retained counsel was ineffective because rather than personally appearing at defendant's plea and sentencing hearings he sent an associate attorney for those proceedings; and (2) his attorney failed to conduct necessary pretrial investigations and make appropriate arguments on his behalf at sentencing. Defendant also argued that the plea proceeding was defective because the judge did not directly address him as required by Rule 3:9-2, but instead allowed defendant's attorney to conduct the questioning of defendant.

The PCR judge, who was not the same judge that had taken defendant's plea and sentenced him, rejected defendant's contentions. Applying the Strickland/Fritz1 test, the judge concluded with respect to defendant's first argument that sending an associate attorney to handle the plea and sentencing proceedings did not constitute deficient conduct. Indeed, defendant did not object at the time and the attorney who handled those proceedings did an exemplary job by obtaining a very favorable disposition of these two very serious first-degree crimes, which defendant had confessed to committing. As to the second argument, the judge found a lack of evidence that defendant's attorney failed to conduct the necessary pretrial investigations. He also found no deficiency in counsel's sentencing arguments.

The judge also rejected defendant's argument that he should be allowed to withdraw his plea because of the noncompliance with Rule 3:9-2. First, he noted that this was an issue that could have been raised on direct appeal and was therefore procedurally barred by Rule 3:22-4(a). Further, he found no substantive merit to the contention. Although not conducted by the judge who took the plea, as it should have been, the plea colloquy was thorough, it established that defendant was entering his plea knowingly and voluntarily, and defendant provided an adequate factual basis. Therefore, the PCR judge concluded that any technical deficiency should not provide a basis for withdrawal of the plea.

Finally, the judge found no prima facie showing of entitlement to relief on PCR. Therefore, he declined to conduct an evidentiary hearing.

On appeal, defendant argues:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSELS.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF AND WHY THE PLEA SHOULD BE SET ASIDE.

B. THE PLEA OF GUILTY ON APRIL 22, 2004, WAS IMPROPERLY TAKEN BY THE COURT IN VIOLATION OF RULE 3:9-2 AND IS VOID AB INITIO.

C. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO DEFENDANT'S CASE.

These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following briefs comments.

Failure of the judge at the plea proceeding to directly address defendant and question him regarding his understanding of the rights he was relinquishing by pleading guilty, regarding his understanding of the plea and its consequences, and to ascertain a factual basis sufficient to support the plea was clearly a violation of the requirements prescribed by Rule 3:9-2. This deficiency constituted error. However, the purpose of the rule is to assure that the defendant understands the charges, that he is pleading to them voluntarily, and that a sufficient factual basis exists to establish his guilt. State v. Lavoy, 259 N.J. Super. 594, 599-600 (App. Div. 1992). The colloquy here was conducted in open court in the presence of the judge who accepted the plea. Presumably, the judge observed the defendant in the course of the colloquy and assessed his demeanor and credibility. Her assessment induced her to conclude that he was pleading freely and voluntarily, with a full understanding of the charges and of the plea agreement and its consequences. Finally, she concluded that he provided a sufficient factual basis. Had she not done so, she would not have accepted the plea. The colloquy was thorough and covered all relevant subjects. Therefore, we conclude that the error was harmless.

We further conclude that the judge did not err in precluding defendant from withdrawing his plea. First, we agree that the belated request for withdrawal, after sentencing and after the affirmance of defendant's conviction and sentenced on direct appeal, was procedurally barred under Rule 3:22-4(a). We further agree with the PCR judge that the request was substantively deficient because defendant failed to satisfy the criteria of the Strickland/Fritz standard, as modified by State v. Nunez-Valdez, 200 N.J. 129, 138-39 (2009) (requiring (1) deficient conduct, and (2) demonstration of a reasonable probability that, but for the deficient conduct, the defendant would not have pled guilty and would have insisted on going to trial). Defendant did not satisfy either prong. Nor did he demonstrate that withdrawal of his plea after sentencing should be granted to correct a manifest injustice. See R. 3:21-1; State v. Fischer, 38 N.J. 40, 48 (1962). Indeed, a voluntary plea should "not generally be vacated in the absence of some plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992). Defendant has not asserted his innocence in this proceeding.

1 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).