Opinion
DOCKET NO. A-1242-13T2
04-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUIS GONZALEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Manahan. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-0184. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Luis Gonzalez, appeals the denial of his petition for post-conviction relief (PCR). Defendant argues he should have been provided an evidentiary hearing because he established a prima facie case of ineffective assistance of trial counsel. Defendant argues that he demonstrated counsel was ineffective because he failed to: properly advise him of his sentencing exposure; sufficiently consult with him; properly investigate defendant's mental health issues; and argue for mitigating factors that would have excused or justified defendant's conduct. Finding no merit in his arguments, we affirm.
Defendant was convicted after trial of carjacking and sentenced to an extended forty-five year prison term with an eighty-five NERA parole disqualifier. After a direct appeal, we remanded for resentencing. On remand, defendant was sentenced to forty-two and one-half years of imprisonment subject to a NERA parole disqualifier. The sentence was affirmed on appeal. The Supreme Court denied defendant's petition for certification.
In September 2011, defendant filed a pro se PCR petition with a certification for an evidentiary hearing. On July 26, 2013, after oral argument, Judge Kyran Connor denied defendant's petition for the reasons stated in a decision from the bench.
Judge Connor found defendant's allegations were merely bald assertions. The judge concluded the only evidence defendant offered other than his own allegations was a report noting "that the jail records for November 2005 to December 2006 revealed 'no attorney visits with [defendant].'" The judge rejected the report as multi-level hearsay which did not establish that trial counsel did not visit defendant in prison. Additionally, the judge found there was no evidence to support trial counsel was aware of defendant's mental health issues, or, if so, that they would have aided defendant at trial or at sentencing. Finally, the judge rejected defendant's contention that he was not properly advised of his sentencing exposure upon conviction as his exposure was addressed on the record with defendant at the pre-trial conference.
At the pre-trial conference defendant, in the presence of counsel, rejected the State's plea offer of ten years subject to NERA and the State rejected defendant's counter offer of five years subject to NERA. At the conclusion of the conference, the judge advised the defendant he was extended term eligible and, if convicted "as an extended term," would be facing up to a life sentence.
In order to obtain an evidentiary hearing on a PCR petition, a defendant must establish a prima facie case for relief and show that a hearing is necessary to resolve the claims. R. 3:22-10(b). The petitioner must ultimately establish the right to PCR by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992).
After our review of the record and controlling principles of law, we find insufficient merit in defendant's arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth by Judge Connor in his oral decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION