STATE OF NEW JERSEY v. NELSON GONZALEZ, JR

NOT FOR PUBLICATION WITHOUT THE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, JR.,

Defendant-Appellant.

_______________________________________

December 8, 2015

Submitted October 6, 2015 Decided

Before Judges Leone and Whipple.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-12-4890.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the briefs).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Nelson Gonzalez, Jr. filed a petition for post-conviction relief (PCR), claiming ineffective assistance of counsel. The PCR court denied his petition without an evidentiary hearing. We affirm.

I.

Defendant admitted the following facts in his plea colloquy. On November 17, 2003, Liczett Almodovar asked defendant, who was seventeen years old at the time, to participate in a robbery of a home in Camden. Almodovar previously worked at that location and was familiar with the house and where money was kept. She provided a hand-drawn map of the interior to defendant and instructed him where to retrieve the money. Defendant agreed to participate in the robbery because he owed money to Almodovar. Minutes prior to the robbery, Almodovar entered the residence and spoke with the owner as a pretext for discerning who was inside. Once Almodovar returned, defendant was handed a loaded 9 mm handgun. Upon entering the residence, defendant engaged in a struggle with the homeowner, Carlos Diaz. Defendant then shot Diaz, who fell to the ground. The struggle continued and defendant shot Diaz a second time. Two days later, Diaz died of his gunshot wounds.

The grand jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; third-degree conspiracy to commit murder, robbery, and burglary, N.J.S.A. 2C:5-2; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1); and third-degree conspiracy to hinder apprehension or prosecution, N.J.S.A. 2C:5-2 and 2C:29-3(a)(3).

On September 9, 2005, defendant entered into a negotiated plea agreement and pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). The remaining counts of the indictment were dismissed. The plea agreement recommended a mid-range sentence of twenty years with 85% parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. As part of defendant's plea agreement, he gave up the right to appeal.

At sentencing on October 21, 2005, the sentencing court found that the aggravating factors outweighed the mitigating factors. First, the court found aggravating factor three the risk that defendant will commit another offense "because of the nature of [defendant's] activity as a juvenile," and because he committed the aggravated manslaughter "in such quick succession with" defendant's "other juvenile offenses." Second, the court found factor number nine the need to deter defendant and others from violating the law because defendant did the "unthinkable" during the commission of an armed robbery when he shot and killed the homeowner. The court found no applicable mitigating factors. The court imposed the recommended sentence. Defendant did not appeal his October 21, 2005 judgment of conviction.

On August 28, 2012, more than five years after the date of his judgment of conviction, defendant filed a pro se PCR petition, claiming his plea counsel was ineffective for failing to file a timely PCR petition and for failing to argue and present mitigating evidence to the trial court that would allegedly lessen his sentence.

After hearing argument, the PCR court denied defendant's petition on October 25, 2013. The PCR court recognized that defendant had a "serious . . . problem" to show his petition was timely. However, the court proceeded to consider the merits. The PCR court ultimately denied defendant's petition on the merits, noting that defendant was already given "a very favorable plea bargain," and that the seriousness of the crime guaranteed his negotiated sentence would not have been "undercut" even if mitigating evidence had been presented by plea counsel.

Defendant appeals the denial of his PCR petition, arguing

MR. GONZALEZ IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEYS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO ADVOCATE FOR HIM AT SENTENCING.

II.

A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158 (citation omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. If the PCR court has not held an evidentiary hearing, we "conduct a de novo review" of its ruling. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.

To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012)(quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct.at 2064, 80 L. Ed.2d at 693). The defendant must overcome a "strong presumption that counsel rendered reasonable professional assistance." Ibid.

Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Parker, supra, 212 N.J. at 279-80(quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct.at 2068, 80 L. Ed.2d at 698).

III.

Defendant claims his plea counsel was ineffective for failing to argue and present evidence that would have resulted in the imposition of a lesser sentence. First, defendant claims plea counsel failed to present evidence that his two juvenile arrests from Florida that were referenced by the trial court had resulted in charges that were dismissed. However, the reasonableness of a counsel's advice depends on the information supplied by the defendant, and it is unclear whether defendant told plea counsel that his Florida charges had been dismissed. See State v. Difrisco, 174 N.J. 195, 228 (2002). In any event, there is not a reasonable probability that the sentencing court would have lessened defendant's sentence if it had been presented with such evidence.

The pre-sentence report stated that in 2003, defendant had two New Jersey juvenile adjudications for aggravated assault and conspiracy to distribute a controlled dangerous substance, for which he received probation that was later terminated unsuccessfully; an active adult bench warrant in New Jersey; and two juvenile arrests in Florida marked "No Disposition Available."1 The sentencing court placed primary emphasis on defendant's New Jersey juvenile adjudications, and relatively little weight on the fact defendant "also" had two Florida juvenile arrests.

The PCR court found the Florida arrests ultimately had no bearing on the outcome of the sentencing. The PCR court acknowledged that the sentencing court made "some casual reference to an ongoing pattern of criminality in looking at the aggravating factors." However, the PCR court noted that the sentencing court "did not find aggravating factor six," and "so, he didn't put that much weight on it."

We agree with the PCR court's analysis. The sentencing court primarily based its finding of aggravating factor three on defendant's two New Jersey adjudications, and found aggravating factor nine without any reference to defendant's juvenile record. The court did not find aggravating factor six that defendant's prior history weighed in favor of a higher sentence. In addition, the trial court found no mitigating factors. In this regard, defendant has failed to show a reasonable probability he would have received a lesser sentence were these juvenile arrests not referenced by the trial court, or if plea counsel had presented evidence of the dismissals. See Parker, supra, 212 N.J. at 279-80.

In addition, defendant claims that plea counsel did not humanize him at sentencing by referencing his upbringing and personal hardships. However, at sentencing, defense counsel did attempt to humanize defendant in the following manner

Judge, I have been representing Mr. Gonzalez now for close to two years. I've had the opportunity to meet with him many times and to discuss the case with him on many occasions. And Judge, the Prosecutor is correct. There really are no words . . . that he could ever say or that I could even say with regards to express how remorseful and how sorry he is for what happened.

When this took place, Judge, he was seventeen years old . . . . He was involved in a day-to-day life of drugs, of violence, of drugs in Camden County. And unfortunately on that date when the co-defendant, Lizette, put the gun in his hand and discussed with him going in . . . and committing this robbery he had the choice to walk away, he had the choice to not take part in that and he made the wrong decision and someone paid with their lives.

One of the main reasons, Judge, that he did agree to accept . . . the plea agreement, aside from the fact that he clearly wants to accept culpability, is the fact that he did not . . . wish to see the family go through . . . any trial. He did not wish to put the family through any more hurt or pain than they've already been through.

And I feel that when I discussed things with him, Judge, that he truly is remorseful. He was, unfortunately, not in the right state of mind. He wants to make a better life for himself and hopefully he will not be a very old man when he's released from State prison. He's he's only 19 at this point. He understands he's going to spend a substantial portion of his life in State prison and has advised me that he wishes to not only better himself, but try to atone for what he has done in taking the life of another person.

Additionally, defendant had a chance to speak before the judge in an attempt to humanize himself. He apologized to the family for his "reckless behavior." He noted, he "was young" and "influenced by [his] peers." He acknowledged their pain that saying "sorry" could not ease that pain, and that he was "going to have to live with that" every day. He concluded

And I want them to know that I know for a fact that, you know . . . in their eyes I'm a monster or, you know, whatever they would like to call me. But still I'm a human being and I am sorry . . . .

Here, defendant fails to show how counsel failed to render reasonable professional assistance by humanizing him differently. Defendant cites various personal hardships namely, that his nephew died, his mother and sister went into deep depression, his mother stopped working, they had to move and separate, he took care of his sister, he got behind in rent, and he began to sell drugs. Though tragic, they do not excuse his killing of Mr. Diaz. Moreover, this would run counter to the strategy defendant himself employed at sentencing, of saying being young and influenced by his peers was "not an excuse."

In any event, defendant has not shown that his preferred approach would have resulted in a sentence lower than the already-favorable sentence imposed pursuant to a negotiated plea agreement stemming from the unlawful killing of another human being. The PCR court found no reasonable probability that mentioning his personal hardships would have reduced his sentence. The PCR court noted that this was not an open plea with a plea bargain with a recommended sentence but without a cap. The PCR court stressed

that we had a citizen, a victim in this case, who during the course of a robbery was shot and and killed, there was just no way, no matter how difficult Mr. Gonzalez's background was, and it was difficult, but that [the sentencing judge] or any other Judge was going to undercut that particular plea bargain.

The PCR court noted that the factors defendant now cites may have been taken into account in defendant's generous plea bargain.

Therefore, defendant has failed to establish the ineffectiveness of his plea counsel. To the contrary, plea counsel was able to secure a favorable sentence of twenty years for defendant, even though he was facing the possibility of life imprisonment while charged with first-degree murder, first-degree robbery, and nine other offenses. Although defense attorneys have "an unfettered right to argue in favor of a lesser sentence than that contemplated by the negotiated plea agreement," State v. Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002), defendant has failed to show a reasonable probability that raising the circumstances he now proposes would have reduced his sentence for killing Mr. Diaz. As defendant failed to present a prima facie claim of ineffective assistance of counsel in his PCR petition, the PCR court properly denied his petition without an evidentiary hearing.2

Affirmed.

1 At the time of sentencing, the governing law was that "[a] sentencing judge may consider a defendant's juvenile record of charges that did not result in convictions." State v. Tanksley, 245 N.J. Super. 390, 396 (App. Div. 1991). Tanksley relied on State v. Green, 62 N.J. 547, 571 (1973), including its statement that a "sentencing judge might find it significant that a defendant who experienced an unwarranted arrest was not deterred by that fact from committing a crime thereafter." However, our Supreme Court has recently "disapprove[d]" of that statement in "Green because deterrence is directed at persons who have committed wrongful acts." State v. K.S., 220 N.J. 190, 199 (2015).

2 We note that defendant filed his PCR petition almost seven years after his judgment of conviction. "Rule 3:22-12(a)(1) sets a five-year time limitation for the filing of a PCR petition[.]" State v. Brewster, 429 N.J. Super. 387, 398 (App. Div. 2013). However, the State has not asked us to rule that the petition was untimely, and we decline to deny defendant's petition, on our own initiative, under Rule 3:22-12(a)(1). See Day v. McDonough, 547 U.S. 198, 209, 126 S. Ct. 1675, 1684, 164 L. Ed. 2d 376, 387 (2006) (holding that federal courts are "permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition").