On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-08-1512.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2012
Before Judges Simonelli and Accurso.
Defendant Jose Viera appeals the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel that required an evidentiary hearing. Because the trial judge properly found the evidence inadequate to sustain defendant's burden on the application, we affirm.
Defendant was indicted on two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c, and one count of third-degree aggravated sexual criminal contact, N.J.S.A. 2C:14-3a. He pled guilty, pursuant to a plea agreement, to an amended single count of fourth-degree criminal sexual contact. The State dismissed the remaining two counts and agreed to recommend that he be sentenced to time served. Defendant was sentenced to time served (approximately 395 days) with appropriate penalties imposed and ordered to have no contact with the victim.
Defendant appealed his sentence, which we reviewed on a sentencing calendar, R. 2:9-11, and affirmed. Defendant filed a petition for post-conviction relief based primarily on claims of ineffective assistance of counsel. Defendant claimed that, as a result of inadequate investigation, his counsel failed to learn that the alleged victim had fabricated her complaint and wished to drop the charges, and pressured him into accepting a guilty plea. After hearing argument by assigned counsel, the trial court issued a comprehensive written opinion denying the petition on the basis that defendant had failed to establish a prima facie claim for relief. State v. Preciose, 129 N.J. 451, 462-64 (1992). Judge Santiago found no support in the record for defendant's allegation that the victim wanted to drop the charges against him and she rejected defendant's claim that his counsel had coerced him into pleading guilty, notwithstanding his innocence, because it was clearly contradicted by his plea form and colloquy.
On appeal, defendant presents the following arguments:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER [Rule] 3:22 POST-CONVICTION RELIEF CRITERIA.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH ...