On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-05-0889.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2012
Before Judges Ashrafi and Hayden.
Defendant, Paul Gonzalez-Ortega, appeals from the March 15, 2010 Law Division order, which denied his petition for post-conviction relief (PCR). We affirm.
A grand jury indicted defendant for first-degree aggravated sexual assault upon a minor less than thirteen years of age, N.J.S.A. 2C:14-2a(1); second-degree sexual assault, N.J.S.A. 2C:14-2b; second-degree debauching the morals of a child, N.J.S.A. 2C:24-4a; third-degree concealing evidence, N.J.S.A. 2C:29-3(b)(1); third-degree witness tampering, N.J.S.A. 2C:28-5a; and fourth-degree violation of a no contact order, N.J.S.A. 2C:29-9a. The indictment stemmed from charges that defendant had sexual intercourse with a twelve-year-old girl and after his arrest wrote letters to the victim in violation of a no-contact order. Defendant, who was twenty-six at the time, knew that the girl was a minor.
Defendant retained attorney Paul W. Bergrin to represent him in the criminal proceedings. Bergrin arranged for another attorney Dana M. Scarrillo to assist with the case.*fn1
On June 15, 2005, defendant, represented by Scarrillo, appeared before Judge Patrick J. Roma and pled guilty to first-degree aggravated sexual assault and fourth-degree contempt. As part of the plea agreement, the State recommended that the defendant be sentenced on the aggravated sexual assault count as a second-degree offender to eight years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and receive a concurrent eighteen-month sentence for the fourth-degree contempt count. Before accepting his plea, the judge questioned the defendant extensively regarding his understanding of the plea and sentence, its factual basis, and the voluntariness of his decision. On September 30, 2005, Judge Roma sentenced defendant consistent with the plea agreement. Defendant did not file a direct appeal.
On April 23, 2009, defendant filed a pro se PCR petition. On October 30, 2009, assigned counsel filed a brief in support of defendant's petition for post-conviction relief, contending his trial attorney provided ineffective assistance of counsel.
At the March 5, 2010 PCR hearing, defendant argued that Bergrin and his firm were compromised in their ability to effectively represent defendant as a result of contemporaneous state and federal criminal investigations of Bergrin, which resulted in federal indictments in 2009. Judge Roma analyzed the claim of conflict of interest under the standard in State v. Bell, 90 N.J. 163, 171-73 (1982), where the court recognized an actual conflict or actual prejudice only if "the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice." In determining whether a substantial likelihood of prejudice existed, the judge relied on State v. Pych, 213 N.J. Super. 446 (App. Div. 1986), certif. denied, 107 N.J. 90 (1987), where the court found no significant likelihood of prejudice when an attorney was indicted in one county while his client was under indictment in another county.
Judge Roma concluded that, as Bergrin was not indicted in the same county or by the same grand jury as the defendant, no evidence showed that the judge or prosecutor was aware of the investigation, and Bergrin was not indicted until several years after the defendant's plea and then by federal authorities, defendant had not shown a significant likelihood of prejudice. In addition, the judge noted that Bergrin played a minimal role in defendant's representation and Scarrillo, about whom defendant has presented no evidence of an investigation or an indictment, actually negotiated the plea agreement.
Judge Roma determined that the defendant was not prejudiced by his attorney's representation, as required for an ineffective assistance counsel claim under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). ...