STATE OF NEW JERSEY v. DAVID GONZALEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID GONZALEZ,

Defendant-Appellant.

_________________________________________

June 25, 2014

Submitted April 9, 2014 Decided

Before Judges Fuentes and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-10-01689.

Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant David Gonzalez appeals from the order of the trial court denying his petition for post-conviction relief (PCR). We affirm. We derive the following facts from the record developed before the PCR court.

On September 17, 2007, defendant entered into a negotiated plea agreement with the State through which he pled guilty to first degree robbery, N.J.S.A. 2C:15-1, third degree burglary, N.J.S.A. 2C:18-2, and third degree aggravated assault, N.J.S.A. 2C:12-1b(2). As part of this plea agreement, the State agreed to dismiss thirteen related indictable charges reflected in three separate indictments, including six counts charging first degree robbery. The State also agreed to recommend that defendant be sentenced on the first degree robbery to a term of imprisonment within the high-end range of a second degree offense, and subject to 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. Finally, the State also reserved the right to ask the court to run any sentence imposed here consecutive to a sentence defendant would serve for violation of parole.

On January 18, 2008, the trial court sentenced defendant on the charge of first degree robbery to a term of ten years subject to the provisions of NERA, to be served consecutive to any term for violation of parole. The court also imposed concurrent terms of five years on the third degree offenses of burglary and aggravated assault. Defendant did not file a direct appeal challenging any part of the sentence or the legal viability of his guilty plea.

On January 13, 2011, defendant filed a pro se PCR petition, "seeking . . . to correct errors that were committed during my Plea and Sentencing and to remand my case for re-sentencing." In his memorandum of law defendant claimed he received ineffective assistance from his attorney based on his "failure to investigate the case, specifically his failure to locate and interview witnesses, and his subsequent failure to raise legal claims and suppression motions." The court thereafter assigned counsel to represent defendant in prosecuting his PCR petition. Counsel filed a brief and supplemental certification signed by defendant in which he again claimed his previous attorney did not properly investigate the case and failed to file certain motions to suppress evidence.

The matter came before the PCR court on March 5, 2012. After considering the arguments of counsel and reviewing the claims made by defendant, Judge James M. Blaney found defendant had failed to established a prima facie case of ineffective assistance of counsel consistent with 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).

Specifically, Judge Blaney found defendant had not demonstrated 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 had not shown there existed "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. Judge Blaney also found defendant's arguments attacking the sentence imposed by the trial court based on his attorney's failure to raise certain mitigating factors were not cognizable in the context of a PCR petition, and thus were procedurally barred under Rule 3:22-2. Judge Blaney explained his findings and elaborated on his legal analysis in a nineteen-page memorandum of opinion dated May 2, 2012.

Defendant now appeals raising the following arguments.

POINT ONE

THE PROCEDURAL BAR OF R. 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

POINT TWO

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW SENTENCE HEARING AS A RESULT OF TRIAL COUNSEL PROVIDING DEFENDANT WITH INEFFECTIVE ASSISTANCE AT HIS SENTENCE HEARING.

POINT THREE

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

We reject these arguments and affirm substantially for the reasons expressed by Judge Blaney in his memorandum of opinion.

Affirmed.