On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-12-3318.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Grall.
Defendant Manuel Leon Gomez appeals from an order denying his petition for post-conviction relief. We reject defendant's claim that an evidentiary hearing was required and affirm substantially for the reasons stated by Judge Paul M. DePascale in his oral opinion of April 20, 2006.
On December 11, 2001, the grand jurors for Hudson County returned a ten-count indictment charging defendant with commission of two counts of first-degree aggravated sexual assault by committing an act of sexual penetration with a child under the age of thirteen, N.J.S.A. 2C:14-2a, two counts of sexual assault, N.J.S.A. 2C:14-2b, four counts of endangering the welfare of a child, N.J.S.A. 2C:24-4a, and two counts of child abuse, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3. The victim of the sexual assaults was ten years old on the date of the last alleged assault. Pursuant to an agreement with the State, defendant entered a plea of guilty to one count of aggravated sexual assault in return for the State's promise to dismiss the remaining counts of the indictment and recommend a sentence appropriate for a crime of the second degree. Defendant was sentenced in accordance with that agreement. Rather than appeal from the conviction and sentence, defendant filed two petitions for post-conviction relief. The first petition was dismissed. Counsel was appointed to represent defendant on the second petition, which was denied.
The pertinent facts are as follows. The victim reported defendant's crime after a series of sexual assaults over an extended period of time. She was taken to the hospital and examined by a doctor, who later advised the authorities that there was physical evidence of sexual abuse. Defendant was arrested. He admitted that he had done something with the child that he regretted. At the plea hearing, the judge asked defendant whether he had had sufficient time to discuss with his lawyer the case, the facts, the circumstances, his rights and any defenses he might have. Defendant said, "I spoke about everything with my attorney." After the judge gave defendant a detailed explanation of the State's obligation to prove guilt beyond a reasonable doubt, defendant's trial rights and the role of the jury, defendant said he understood and wished to waive those rights. Defendant also confirmed that no one had pressured or threatened him and acknowledged his satisfaction with the services his lawyer had provided. Defendant then acknowledged that he sexually penetrated the child.
At the time of sentencing, defendant did not deny his guilt or question his attorney's performance. During his allocution, he simply asked why people kept saying that he did something to the child and asserted that if he had, she would not have asked him to play with her on the day before he was arrested.
On his application for post-conviction relief, defendant contended that the attorney who represented him at the time of his plea and sentence did not obtain a medical report prepared by the doctor who examined the victim. Defendant was unable to establish, however, that a medical report was prepared. Neither the prosecutor's file nor defense counsel's file included a copy of a report on the examination, and the hospital had no record.
Defendant also contended that his attorney was not familiar with the facts of the case. To support this claim, defendant noted that his attorney elicited a factual basis for aggravated sexual assault based on vaginal penetration. The victim had reported facts suggesting anal penetration and vaginal contact.
Defendant, who had the benefit of an interpreter at the time of his guilty plea, also alleged that he was unable to understand and comprehend the proceedings. The transcript discloses that he had both asked and answered questions during the proceeding.
Defendant presents the following arguments on appeal:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF AS HE WAS DENIED ...