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State v. Guerrero

June 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CARLOS GUERRERO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 02-05-2066 and 02-05-2067.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 10, 2009

Before Judges Parker and Yannotti.

Defendant Carlos Guerrero appeals from an order entered on October 3, 2007 denying his petition for post-conviction relief (PCR) from two judgments of conviction. We affirm.

On July 14, 2003, defendant pled guilty under Indictment 02-05-2066 to first degree aggravated manslaughter, N.J.S.A. 2C:11-4; and third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. On that same date, he also pled guilty under Indictment 02-05-2067 to third degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7.1.

Defendant was sentenced on September 18, 2003 to a term of twenty years subject to seventeen years parole ineligibility under Indictment 02-05-2066 and to a term of three years subject to three years parole ineligibility under Indictment 02-05-2067. The terms under the two indictments were to run concurrently. On May 13, 2004, defendant moved pro se to withdraw his guilty pleas. The motion was denied on August 20, 2004.

On January 10, 2006, we affirmed both convictions but remanded for the trial court to amend the judgments with respect to the Violent Crimes Compensation Board (VCCB) penalties imposed. The Supreme Court denied certification on April 28, 2006. State v. Guerrero, 186 N.J. 607 (2006).

Defendant filed a pro se PCR petition on March 7, 2007, covering both indictments. Counsel was assigned and filed briefs on his behalf. The PCR court rendered a written decision in which it reviewed the underlying charges and the law pertinent to determining whether trial counsel was ineffective. The court found that defendant's claim of ineffective assistance of counsel during the plea proceeding was unfounded and that "trial counsel was not deficient." The PCR court further found that defendant's claim that counsel's failure to investigate the matter further was based on defendant's failure to provide any information to warrant an investigation and defendant's decision to plead guilty well before the plea proceeding.

The PCR court also noted that defendant proffered no evidence in his PCR petition "that trial counsel would have found via an investigation, nor have any affidavits been provided to the court to show what an investigation would reveal. While the [p]petitioner presents hypothetical areas of investigation, this is not what is required by case law. Therefore, the [p]petitioner has not shown that the first prong of Strickland*fn1 is met because trial counsel's performance was not deficient." The PCR court further noted that during his plea colloquy, defendant stated that trial counsel had met with him and answered all of his questions prior to the plea and that defendant was satisfied with his services. Defendant was even given the opportunity to consult further with counsel during the plea proceeding and declined to do so.

In this appeal, defendant argues:

POINT ONE

IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR ...


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