STATE OF NEW JERSEY v. NELSON 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NOT FOR PUBLICATION WITHOUT THE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.

NELSON GONZALEZ,

Defendant-Appellant.

___________________________________

June 12, 2014

Submitted June 4, 2014 Decided

Before Judges Waugh and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-03-0295.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief)

PER CURIAM

Defendant Nelson Gonzalez appeals the denial without an evidentiary hearing of his petition for post-conviction relief (PCR). He claims that the attorney who negotiated his plea should have first had him examined by a psychologist or psychiatrist to determine his mental state when he shot and killed the victim, a woman with whom he lived. Defendant has failed, however, to provide an expert report to support his claim that a mental examination may have affected the State's plea offer or his sentence. For that reason, we reject his argument. We also reject his argument that counsel ineffectively represented him at sentencing. Accordingly, we affirm.

Charged by a grand jury in a four-count indictment with first-degree murder and three weapons offenses, defendant pled guilty to a single count of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), in exchange for the State agreeing to recommend a thirty-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. During the plea proceeding, defendant admitted that on January 13, 2003, while living with Mary Pierce, they had a disagreement that escalated into a physical struggle. Defendant shot Pierce in the head twice and killed her.

The court sentenced defendant in accordance with the plea agreement. In addition to the custodial term, the court imposed appropriate fines, penalties, and assessments, and ordered that defendant make restitution.

Defendant appealed his sentence, claiming that it was excessive. We heard defendant's appeal on an Excessive Sentence Oral Argument calendar, R. 2:9-11, and denied it, concluding "that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion."

Seven years after the court entered the judgment of conviction and order for commitment, defendant filed his PCR petition.1 Defendant claimed that his attorney was ineffective for not obtaining a psychological or psychiatric evaluation that could have been helpful to him at trial or with plea negotiations, and for failing to argue various mitigating factors when defendant was sentenced. Defendant also argued that his petition should not be time-barred, as contended by the State.

The court denied the petition as time-barred. Nevertheless, the court addressed the merits of defendant's petition and rejected them. The court noted that defendant had not presented with his petition "what the psychologist or psychiatrist would have said that would have made this different," and characterized defendant's argument concerning his mental state as "just an allegation."

The court further concluded that even if counsel had argued mitigating factors at sentencing, the sentence would have been the same. The court explained that defendant received the sentence "he bargained for." The court also determined "that the factors . . . argued by PCR counsel" were not factors the court could have found as mitigating, and even if they were, they would not "have required substantial change in the sentencing process."

Having determined that defendant had failed to establish a prima facie ineffective-assistance claim, the court denied the petition. Defendant appealed.

Defendant presents the following arguments for our consideration:

POINT I

BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE THE PETITIONER WAS PREJUDICED THEREBY, THE COURT ERRED IN DENYING PETITIONER'S MOTION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD HAVE GRANTED HIM AN EVIDENTIARY HEARING.

A. Trial Counsel Failed to Have Defendant Evaluated by an Expert to Determine if Defendant was Mentally Competent and/or Suffered from Diminished Capacity.

B. Trial Counsel was Ineffective in Failing to Argue for Mitigating Factors and Against Aggravating Factors at Sentencing.

POINT II

THE DEFENDANT'S MOTION FOR PCR SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS.

A. The Time Bar Should Be Relaxed Because Defendant's Delay In Filing His PCR Petition Was Due to Excusable Neglect.

B. The Time Bar Should Be Relaxed in the Interests of Justice.

C. The Petition For Post-Conviction Relief Is Not Procedurally Barred By Rule 3:22-4 or Rule 3:22-5.

To establish a claim that trial counsel was constitutionally ineffective, a defendant must prove two elements: first, that "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). To establish a prima facie ineffective-assistance claim, a defendant must do more than make assertions that are unsupported by the record. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A defendant

must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.

[Ibid.]

Defendant has failed to do so here.

Although defendant faults his trial counsel for failing to have him evaluated by a psychiatrist or a psychologist, defendant himself has failed to provide a report from an expert to support his PCR claim. It appears from his brief that the factual basis for his claim is derived entirely from the presentence report. The report itself consists largely of hearsay. We also note the obvious: the presentence report did not exist when trial counsel represented defendant at the plea hearing.

The presentence report discloses that when the police went to the victim's home in response to a call from a concerned friend, they peered through a front window and saw defendant holding a small caliber gun pointed at his right temple. Defendant did not respond when the police attempted to talk to him. Instead, he would walk around the room then return to the sofa. When they attempted to enter the house they heard a "pop." Defendant had shot himself in the head.

The ensuing police investigation disclosed that Pierce had been dead for approximately two days. Defendant disclosed during the presentence interview that after shooting the victim, he drank "[forty] bags of heroin in water, tried to cut out his veins[,] and shot himself in the temple." His recollection was faulty, however, because he believed he attempted to take his own life on the same day he shot Pierce.

Defendant also related that he had a twenty-year history of mental illness, specifically, schizophrenia. He claimed he had been treated at, among other places, "Ancora, Bridgeton Mental Health Unit and Trenton Psychiatric Hospital in the past."

Even assuming trial counsel was ineffective for not having defendant evaluated, defendant has not demonstrated that an evaluation would have affected the plea negotiations or his sentence. Defendant has presented no expert testimony and no records concerning either his mental status when he shot Pierce or his history of mental illness. In other words, defendant has failed to comply with the holding in Cummings, supra, 321 N.J. Super. at 170, by providing either certifications or expert reports to support his claim that his counsel was ineffective. Defendant has failed to establish a prima facie claim.

Defendant's argument concerning his counsel's performance at sentencing is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 The court initially denied defendant's petition without oral argument as time-barred. On defendant's motion for reconsideration, however, the court reinstated the petition and heard argument on defendant's substantive PCR claims.