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State v. Nunez

November 23, 2010


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-01-0116.

Per curiam.


Submitted November 3, 2010

Before Judges Payne and Baxter.

Defendant Israel Nunez appeals from an April 9, 2009 order that denied his petition for post-conviction relief (PCR). We reject defendant's contention that trial counsel rendered ineffective assistance by failing to adequately explain the nature and consequences of defendant's guilty plea and by failing to raise arguments at the time of sentencing that would have resulted in a more favorable sentence than the one the judge imposed. We affirm the order under review.


In December 2005, a Hudson County grand jury charged defendant in a fifteen-count indictment with the attempted murder of a police officer (count one), two counts of second-degree attempted aggravated assault against two other police officers (counts four and five), second-degree eluding police (count two), second-degree aggravated assault for injuring a pedestrian while eluding police (count three), unlawful possession of a weapon (count six), possession of a weapon for an unlawful purpose (count seven), possession of hollow nose bullets (count eight), three counts of theft or receiving stolen property (counts ten, eleven and twelve), endangering the welfare of a child (count thirteen), resisting arrest (count fourteen) and certain persons not to possess weapons (count fifteen). The charges stemmed from an incident on August 26, 2005, when defendant deliberately swerved his vehicle into a police car in an attempt to strike the officer. In the course of that incident and while attempting to elude police, defendant injured a pedestrian while dragging her along the ground. The vehicle defendant was operating was stolen and he was in possession of a firearm even though a prior conviction rendered such possession unlawful.

In an unrelated complaint, defendant was charged with aggravated assault on a corrections officer at the Hudson County Correctional Facility (HCCF).

On March 9, 2006, after more than three months of discussion between the prosecutor and defense counsel, defendant entered a negotiated plea of guilty to four counts of the fifteen-count indictment and to the charge at the HCCF. In particular, he entered a guilty plea to second-degree aggravated assault (count one), which had been amended for purposes of the plea from the more serious charge of attempted murder. Defendant also pled guilty to another count of second-degree aggravated assault (count three), third-degree receiving stolen property (count twelve) and second-degree certain persons not to possess weapons (count fifteen). The indictable charge arising out of defendant's conduct at the HCCF was amended to the disorderly persons offense of obstructing a governmental function and defendant entered a plea of guilty to that reduced charge.

During the plea colloquy the judge specifically asked defendant if anyone had promised him anything, other than the agreement that had been placed on the record, to induce him to enter the guilty pleas. Defendant answered "no, sir." When asked if he had had sufficient time to review the discovery, police reports and possible defenses with his attorney, defendant answered "Absolutely." Defendant also agreed that he understood each of the questions on the plea form; and when the judge asked him if he was "satisfied with the representation of [his] attorney" defendant answered "Yes."

At that point, the judge asked defense counsel to elicit from his client a factual basis to support each of the guilty pleas. In the course of providing a factual basis, defendant answered his attorney's questions in a straightforward manner. He never gave the slightest indication that he was in any way dissatisfied with the legal advice he had received, that he was unsure about whether he should be pleading guilty, or that he was confused by any aspect of the plea agreement or the sentence. After defendant provided a factual basis and entered pleas of guilty, the judge specifically found that defendant's pleas of guilty were entered "freely and voluntarily" and that defendant "understood what he was doing, he waived his rights and understood the sentence that could be imposed pursuant to the plea agreement."

Defendant waived his right to be present at the time of sentencing on June 30, 2006. The judge found the existence of three aggravating factors, the risk defendant would commit a future offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). He found no mitigating factors. Pursuant to the plea agreement, the judge sentenced defendant on count one to a ten-year term of imprisonment, subject to the eighty-five percent parole ineligibility period required by N.J.S.A. 2C:43-7.2 (NERA); on count three, to an identical concurrent term; on count twelve, to a concurrent five-year term of imprisonment that contained no parole ineligibility period; and on count fifteen, to a consecutive ten-year term of imprisonment subject to a five-year period of parole ineligibility. On the disorderly persons offense, the judge imposed a consecutive six-month sentence. All of the sentences were ordered to be served concurrently to a violation of parole sentence defendant was then serving. The remaining eleven counts of the indictment were dismissed.

Defendant's appeal was heard on an Excessive Sentence Oral Argument calendar (ESOA), see R. 2:9-11, at which time defense counsel argued that the judge's finding of aggravating factors three, six and nine "was a very bare bone sentencing procedure" because the judge conducted "no . . . analysis" of the facts that would support each of those aggravating factors. Defense counsel did, however, acknowledge that defendant had "numerous priors" and that "this was apparently a very carefully [constructed] plea deal." We affirmed defendant's sentence, holding that the sentence was not manifestly excessive nor unduly punitive and did not constitute an abuse of discretion. State v. Nunez, No. A-5110-06 (App. Div. February 7, 2008).

In December 2008, defendant filed the PCR petition that is the subject of this appeal, asserting that trial counsel rendered ineffective assistance by failing to properly explain the penal consequences of the plea and ...

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