June 9, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE GONZALEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-06-2179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 19, 2008
Before Judges Sabatino and Alvarez.
Defendant Jose Gonzalez appeals the Law Division's October 27, 2005 order denying him post-conviction relief ("PCR"). We affirm, with a slight modification conceded by the State.
In June 1999, defendant was indicted and charged with four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3), four counts of sexual assault, N.J.S.A. 2C:14-2(c)(1), one count of second-degree burglary, N.J.S.A. 2C:18-2, and one count of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) and (2). The charges arose from defendant's attack upon a woman in an apartment in Bellmawr on November 7, 1997. According to the State's charges, defendant used a building superintendent's key to enter the victim's apartment. He forced her to have intercourse, then tied her up with duct tape and fled. DNA testing linked defendant to the crime, and he incriminated himself in a post-arrest statement to the police.
On January 10, 2000, defendant entered into a negotiated plea agreement, in which he agreed to plead guilty to one count of first-degree aggravated sexual assault and also the burglary count, in exchange for the State's dismissal of the remaining eight counts of the indictment. Pursuant to that agreement, the State recommended a sentence of eleven years on the aggravated sexual assault, subject to an 85% parole ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2 ("NERA"), plus a seven-year concurrent term for the burglary. Defendant completed the customary plea form, in which he acknowledged that he understood the terms of the agreement and that he was satisfied with the advice of his counsel.
At sentencing on June 23, 2000, counsel expressed contrition on behalf of defendant, who declined to address the court himself. Defense counsel also confirmed that his client was withdrawing a motion to retract his plea.
Consistent with the plea agreement, the sentencing judge imposed the recommended eleven-year term on the aggravated sexual assault count and a concurrent seven-year term on the burglary count, all subject to NERA. The sentencing judge expressly advised defendant that he had forty-five days to file any appeal of the imposed sentence. No such direct appeal was filed.
Defendant subsequently filed a PCR petition. As amended, the petition claimed that defendant's counsel was ineffective in failing to argue certain mitigating factors at sentencing. Defendant also generically faulted other aspects of his representation connected with the guilty plea and sentence. In his supporting brief, defendant maintained that he would have received a lighter sentence of ten years or less had he received better representation.
After oral argument, the Law Division denied the PCR application, terming it "groundless." Because the application lacked merit, the PCR judge denied defendant's related request for an evidentiary hearing.
On appeal, defendant argues that his PCR petition had merit and was erroneously denied. He also contends that he was wrongfully deprived of an evidentiary hearing and the opportunity to attend the oral argument on the PCR application.
As a threshold matter, we agree with the PCR judge that defendant's petition was procedurally flawed. Defendant could have challenged the merits of his sentence on direct appeal, and raised the very same contentions about omitted mitigating factors, but failed to do so. That failure bars his effort to revive such contentions in a PCR in the guise of ineffective assistance of counsel. R. 3:22-4; State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd in part and remanded, 162 N.J. 240 (2000); State v. Flores, 228 N.J. Super. 586, 595 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).
Even if we were to ignore this procedural impropriety, we also agree with the PCR judge that defendant's substantive arguments are groundless. To establish a deprivation of the right to the effective assistance of counsel under the Sixth Amendment, a convicted defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.
Defendant specifically argues that his counsel was deficient in failing to advocate statutory mitigating factors four, seven and eleven at his sentencing. See N.J.S.A. 2C:44-1(b)(4), (7) and (11). None of those factors realistically would have made a difference here. We reject defendant's claim that his dependency upon drugs and alcohol presents any justification under factor four, N.J.S.A. 2C:44-1(b)(4), for his deliberate conduct in breaking into the victim's apartment, raping her, and binding her up with tape. Factor seven, the absence of a prior criminal history, N.J.S.A. 2C:44-1(b)(7), is of no avail, since defendant had six prior municipal convictions, including an assault offense. We also reject defendant's claim that factor eleven, excessive hardship on a family, N.J.S.A. 2C:44-1(b)(11), pertains, as the record shows that at the time of his prosecution he owed over $36,000 in child support.
Defendant's claim that any of these asserted mitigating factors would have reduced his sentence by a year or more is sheer speculation. As it is, defendant's sentence was almost at the minimum end of the first-degree range. His plea agreement negotiated by his attorney spared him a much larger aggregate exposure under the ten-count indictment, even factoring in appropriate mergers. The sentence was not manifestly excessive. State v. Roth, 95 N.J. 334, 363-64 (1984). There is no proven deficiency of representation.
We likewise sustain the PCR judge's denial of an evidentiary hearing because the application did not come close to presenting a prima facie case to warrant testimony. State v. Preciose, 129 N.J. 451, 462 (1992).
The PCR judge also did not misapply his discretion under Rule 3:22-10 in not permitting defendant to attend the oral argument on his PCR petition. That Rule sensibly lessens the administrative burdens and security risks associated with bringing prisoners to court to hear the oral arguments of counsel when no testimony will be elicited. See Flores, supra, 228 N.J. Super. at 589. Defendant complains that the judge acted unfairly in writing a letter in advance of the argument, which stated that no writ for his attendance would be issued because the petition lacked a prima facie basis. Although it would have been preferable if the judge's letter had been explicitly couched as a tentative finding of lack of merit, subject to the forthcoming oral arguments from counsel, we discern no reversible error in this instance. The transcript shows that defendant's PCR counsel forcefully advocated her client's position on the legal issues at oral argument. Defendant's personal attendance would have been superfluous, given the nature of his asserted claims.
All other arguments that have been raised by defendant lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
As a final, incidental matter, the State does agree that the judgment of conviction needs to be modified to delete its declaration that defendant's conduct "was characterized by a pattern of repetitive and compulsive behavior," since that declaration is contrary to the sentencing judge's findings on the record. The case is remanded for the limited purpose of correcting the judgment in that respect, within sixty days.
Affirmed, as modified.
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