RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3763-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREIVIN ESTRADA,

a/k/a GREIVIN BOSA,

and GREIVIN ESTRADA 

BARBOSA,

Defendant-Appellant.

________________________

Submitted October 20, 2021 – Decided November 9, 2021

Before Judges Hoffman and Geiger.

On appeal from the Superior Court of New Jersey, Law 

Division, Warren County, Indictment No. 14-08-0299

and Accusation No. 16-09-0370.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on the 

briefs).

James L. Pfeiffer, Warren County Prosecutor, attorney 

for respondent (Dit Mosco, Assistant Prosecutor, of 

counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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PER CURIAM

Defendant Greivin Estrada appeals from an October 31, 2019 Law 

Division order denying his petition for post-conviction relief (PCR) without an 

evidentiary hearing. We affirm. 

We briefly recount the underlying facts. On December 31, 2013, police 

officers saw a parked car with its driver's side signal on. When they identified 

themselves, defendant rolled down the window and stated he pulled over to take 

a nap. The officers asked if anyone else was in the car and defendant did not 

respond. From outside the car, the officers saw that defendant's pants were down 

and his buttocks were exposed. The officers saw movement under a blanket in 

the backseat of the car and asked defendant to step out of the car. Defendant 

got into the front seat, drove away at high speed, and was in a hit and run 

accident before officers caught and arrested him. The victim, a twelve-year-old 

girl, was found in the backseat without her underwear on. 

The victim reported that defendant, a close family friend, picked her up at 

her house after asking her mother if he could take her to the store, drove to an 

unknown location, and asked her to take her pants off. He then took his own 

pants off, put on a condom, and sexually assaulted her. Defendant told her to 

cover herself up with a blanket in the backseat when the officers arrived. 
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According to the victim, this was the second time they had sexual intercourse, 

but she could not remember the date of the other incident. She did not tell 

anyone about the other incident because defendant told her it would get them 

both in trouble. 

On January 1, 2014, a search warrant was granted for defendant's car. 

Officers found a pair of men's underwear, a blanket, a bed sheet, an empty Trojan 

Magnum condom package, and a box of Trojan Magnum condoms containing 

two unused condoms in the car. The police also found a clear plastic Ziplock 

bag containing a white, powdery substance on the front seat. The substance field 

tested positive for cocaine. 

On August 27, 2014, a Warren County grand jury returned an indictment 

charging defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-

2(a)(1) (count one); second-degree endangering the welfare of a child, N.J.S.A. 

2C:24-4(a) (count two); second-degree eluding, N.J.S.A. 2C:29-2(b) (count 

three); third-degree possession of a controlled substance (CDS), N.J.S.A. 2C:35-

10(a)(1) (count four); and second-degree possession with intent to distribute 

CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count five). 

Defendant was separately charged with second-degree witness tampering, 

N.J.S.A. 2C:28-5(d). 
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On May 10, 2016, the victim's mother advised the Warren County 

Prosecutor's Office that she received a letter from defendant in May 2015. In 

the letter, defendant urged her not to testify against him in court, offered to pay 

for her to take a trip out of the U.S. during the criminal proceedings, and gave 

her instructions on how to contact him under a false name so that their 

communications would be secret. 

On September 19, 2016, defendant pled to counts one, three, and five, and 

to second-degree witness tampering, in exchange for a recommended aggregate 

fifteen-year term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2, and dismissal of the remaining charges. During the plea hearing, defendant 

acknowledged he understood his sentencing exposure, the terms of the plea 

agreement, that he voluntarily executed the plea forms, and his satisfaction with 

the services of trial counsel, who answered all of his questions. 

When providing his factual basis for the plea, defendant admitted to 

committing an act of sexual penetration on the twelve-year-old victim, that his 

flight from police caused a risk of death or injury to another, that he possessed 

with intent to distribute more than one-half ounce of cocaine, and that he 

engaged in witness tampering of the victim's mother. 
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On January 6, 2017, defendant was sentenced in accordance with the plea 

agreement. As to counts one, three, and five, the trial court found aggravating 

factors one, three, and nine, N.J.S.A. 2C:44-1(a)(1), (3) and (9), mitigating 

factor, N.J.S.A. 2C:44-1(b)(7), and that the aggravating factors substantially 

outweighed the mitigating factor. On count one, defendant received a fifteenyear NERA term, parole supervision for life, N.J.S.A. 2C:43-6.4, and 

compliance with Megan's Law, N.J.S.A. 2C:7-1 to -23, and Nicole's Law, 

N.J.S.A. 2C:14-12. On counts three and five, he was sentenced to concurrent,

flat five-year terms. On the witness tampering charge, the trial court found 

aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3) and (9), no mitigating 

factors, and sentenced defendant to a concurrent, flat five-year term. Counts 

two and four and the motor vehicle summonses were dismissed. 

At the conclusion of the sentencing hearing, the judge advised defendant 

of his right to appeal his conviction and sentence within forty-five days, his right 

to request a thirty-day extension of that time period, the right to be represented 

by counsel on appeal, that counsel would be appointed to represent him if he 

could not afford an attorney, and that if he failed to file an appeal within the 

extended deadline, he may lose his right to appeal. Defendant acknowledged he 
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understood those time frames and signed the standard notice of appeal rights 

form. 

On January 12, 2017, defendant wrote to trial counsel asking whether, on 

appeal, "I will get a lesser sentence or a higher sentence if the appeal is heard . 

. . would it be best for me to go through the appeal or not?" Trial counsel

responded: "Because you entered a guilty plea there is little to appeal except the 

sentencing. Judge Curry sentenced you in accordance with the plea bargain, and 

he gave several reasons for imposing that sentence. I do not think an excessive 

sentence argument would be successful." Defendant did not file a direct appeal 

of his conviction or sentence. 

On December 20, 2018, defendant filed a pro-se PCR petition, arguing 

that trial counsel was ineffective at sentencing. PCR counsel was appointed to 

represent him. Defendant claims he did not pursue a direct appeal because he 

feared he could get a greater sentence if he was unsuccessful on appeal. 

In his supporting certification, defendant stated he was "not challenging 

the guilty plea in itself," only the fact that he "was not properly represented by 

counsel at [his] sentencing when [counsel] failed to make the necessary 

arguments in [his] favor that would have resulted in a lesser sentence[] than was 

applied." He contended that he would have received a lower sentence, for this, 
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his first offense, but did not because trial counsel did not: (a) personalize him

by failing to present character witnesses; (b) demand that the judge specify

which aggravating factors corresponded to which charges; (c) argue that

mitigating factors seven, eight, nine, and ten applied; and (d) argue that 

aggravating factor one should not be applied to all counts. Defendant also stated

that he asked trial counsel to present "character letters" at the sentencing and 

"she said it wouldn’t matter and made no attempt to obtain the letters." 1

Defendant also claimed that he was not the victim's caretaker, therefore, 

count two, which charged second-degree endangering the welfare of a child by 

a caretaker, should have been amended to third-degree endangering. 

On October 31, 2019, the trial court heard oral argument. Defendant did 

not contest his guilty plea or conviction. He claimed that trial counsel should 

have argued for a sentencing downgrade to a lower degree under N.J.S.A. 2C:44-

1(f)(2). 

The PCR judge issued an order and oral decision denying PCR without an 

evidentiary hearing. The judge noted the underlying facts, including the 

1

 Defendant also contended that the minimum fifteen-year term now mandated 

by N.J.S.A. 2C:14-2(d) did not apply because the sexual assault occurred before 

the statute's effective date of May 15, 2014. 
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statements given by the victim and the defendant, and the factual basis defendant 

gave for his guilty pleas. 

The judge also noted defendant was represented by an experienced public 

defender, and that defendant was sentenced in accordance with the negotiated 

plea agreement. The judge explained that defendant could have received a 

longer sentence, including consecutive terms. As to a sentencing downgrade, 

the judge found the aggravating factors clearly outweighed the mitigating 

factors. 

Additionally, the judge found trial counsel was not ineffective "by 

advising her client that she did not think that an excessive sentence appeal would 

be productive. An attorney with years of experience in the criminal defense 

world probably knows that this was not an excessive sentence." The judge 

deemed the sentence the minimum defendant could have received. 

On appeal, defendant argues: 

MR. ESTRADA IS ENTITLED TO A REMAND FOR 

NEW FINDINGS OR FOR AN EVIDENTIARY 

HEARING ON HIS CLAIM THAT HIS ATTORNEY 

RENDERED INEFFECTIVE ASSISTANCE OF 

COUNSEL FOR FAILING TO ADVOCATE FOR 

HIM AT SENTENCING AND MISADVISING HIM 

ABOUT HIS DIRECT APPEAL, THEREBY 

CAUSING HIM TO RELINQUISH HIS RIGHT TO A 

DIRECT APPEAL.
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Post-conviction relief is not a "substitute for direct appeal; nor is it an 

opportunity to relitigate a case on the merits." State v. Szemple, 247 N.J. 82, 97 

(2021) (citing State v. Jones, 219 N.J. 298, 310 (2014)). "[A] defendant is 

precluded from using 'post-conviction relief to assert a new claim that could 

have been raised on direct appeal.'" Id. at 97-98 (citing State v. McQuaid, 147 

N.J. 464, 483 (1997). "[G]enerally an alleged excessive sentence—that is, a 

sentence within the range permitted by a verdict or a plea—is not cognizable on 

PCR." State v. Hess, 207 N.J. 123, 145 (2011) (citing State v. Clark, 65 N.J. 

426, 436-37 (1974)). Two exceptions to the rule forbidding new claims are 

when "'the ground for relief not previously asserted could not reasonably have 

been raised in any prior proceeding,' R. 3:22-4(a)(1), and when 'enforcement of 

the bar to preclude claims, including one for ineffective assistance of counsel, 

would result in fundamental injustice,' R. 3:22-4(a)(2)." Hess, 207 N.J. at 145. 

Where an evidentiary hearing is not held, we conduct a de novo review of 

the trial court's factual inferences drawn from the record and its legal 

conclusions. State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (citing 

State v. Harris, 181 N.J. 391, 420-21 (2004); State v. O'Donnell, 435 N.J. Super. 

351, 373 (App. Div. 2014)). 
10 A-3763-19

New Jersey courts follow the two-prong test adopted in Strickland v. 

Washington, 466 U.S. 668, 687 (1984). State v. Fritz, 105 N.J. 42, 52 (1987). 

"First, the defendant must show that counsel's performance was deficient." State 

v. Gideon, 244 N.J. 538, 550 (2021) (quoting Strickland, 466 U.S. at 687). 

"Second, the defendant must have been prejudiced by counsel's deficient 

performance." Ibid. 

To satisfy the first prong, a "defendant must show that counsel's 

representation fell below an objective standard of reasonableness." State v. 

Pierre, 223 N.J. 560, 578 (2015) (quoting Strickland, 466 U.S. at 688). There is 

a "'strong presumption' that counsel exercised 'reasonable professional 

judgment' and 'sound trial strategy' in fulfilling [their] responsibilities." Hess, 

207 N.J. at 147 (quoting Strickland, 466 U.S. at 689-90). This "highly 

deferential standard," requires defendant to prove "that counsel's performance 

fell 'outside the wide range of professionally competent assistance,'" and "was 

constitutionally deficient." Ibid. (citations omitted). 

The second prong, prejudice to the defendant, is "far more difficult" to 

prove. Gideon, 244 N.J. at 550 (citing State v. Preciose, 129 N.J. 451, 463

(1992)). Defendant must affirmatively prove prejudice. Id. at 551 (citations 

omitted). This is "an exacting standard." Ibid. (quoting State v. Allegro, 193 
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N.J. 352, 367 (2008)). Defendant must demonstrate "a reasonable probability 

that, but for counsel's unprofessional errors, the result of the proceeding would 

have been different." Strickland, 446 U.S. at 694. 

Ineffective Assistance During the Sentencing Hearing 

As we have noted, defendant claims trial counsel did not personalize him 

by introducing character letters, advocate for applicable mitigating factors, 

emphasize this was a first offense, or request that the trial court specify the

counts aggravating factor one applied to. Relying on State v. Briggs, 349 N.J. 

Super. 496, 501 (App. Div. 2002), he contends that had trial counsel vigorously 

argued at the sentencing hearing, the court would have considered mitigating 

factors eight, nine, and ten, and balanced them with the minimized aggravating 

factors, a lower sentence would have been required.2 

In response, the State first argues that defendant's claim is procedurally 

barred, as he could have but did not file a motion to withdraw his guilty plea, a 

motion for reconsideration of his sentence, or a direct appeal. The State also 

2

 On appeal, defendant did not argue or brief the issue of whether he was acting 

as the victim's caretaker at the time the offenses were committed. We deem that 

issue waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 

2011) ("An issue not briefed on appeal is deemed waived."). In any event, count 

two was dismissed. 
12 A-3763-19

contends that the trial court properly applied the aggravating and mitigating 

factors. 

Trial Counsel's Advocacy During the Sentencing Hearing 

Defendant was sentenced in accordance with the plea agreement. 

Accordingly, the sentence is presumed to be reasonable. He was sentenced 

within the ranges permitted for the offenses. On three of the charges, he received 

the minimum term permitted for second-degree offenses. On count one, he 

received a mid-range sentence. Moreover, counsel successfully negotiated 

concurrent sentences despite defendant's clear exposure to a consecutive 

sentence on the witness tampering charge. 

Moreover, "trial judges are given wide discretion so long as the sentence 

imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 

(2005). "When the aggravating and mitigating factors are identified, supported 

by competent, credible evidence in the record, and properly balanced, we must 

affirm the sentence and not second-guess the sentencing court, provided the 

sentence does not 'shock the judicial conscience.'" State v. Case, 220 N.J. 49, 

65 (2014) (citations omitted). 

Defendant contends he would have received a lower sentence if trial 

counsel had argued that aggravating factors three and nine did not apply. We 
13 A-3763-19

disagree. Although defendant had no prior convictions, the trial court did not 

misapply aggravating factor nine. Aggravating factor nine may be applied to 

deter the defendant even if the defendant has no prior criminal convictions. 

State v. Fuentes, 217 N.J. 57, 80 (2014). A psychological evaluation performed 

at the Adult Diagnostic and Treatment Center pursuant to N.J.S.A. 2C:47-1, 

found defendant's "criminal sexual behavior was repetitive" and recommended 

treatment for "relapse prevention." Therefore, finding the need for personal 

deterrence was supported by the record. So too was the need to deter others 

from violating the law. "The need for public safety and deterrence increase 

proportionally with the degree of the offense." State v. Carey, 168 N.J. 413, 426 

(2001) (citing State v. Megargel, 143 N.J. 484, 500 (1996)). 

Standing alone, defendant's lack of a criminal record does not support 

application of mitigating factor eight. Generally, mitigating factor eight applies 

in rare situations where the circumstances that led to the defendant's conduct 

were unique and thus unlikely to repeat themselves. Interpreting mitigating 

factor eight to allow its application based primarily on the defendant's lack of 

prior delinquency or criminal activity would render it duplicative of mitigating 

factor seven and thereby superfluous, a result this court should avoid. See

Franklin Tower One, L.L.C. v. N.M., 157 N.J. 602, 613 (1999). 
14 A-3763-19

Defendant has not shown that he would have received a term less than

fifteen years on count one but for counsel's ineffectiveness. His argument that 

counsel's failure to advocate for sentencing one-degree lower also lacks merit. 

A sentencing downgrade under N.J.S.A. 2C:44-1(f)(2) is appropriate only 

if "the court is clearly convinced that the mitigating factors substantially 

outweigh the aggravating factors and where the interest of justice demands" the 

downgrade. State v. L.V., 410 N.J. Super. 90, 112-13 (App. Div. 2009); see also

Megargel, 143 N.J. at 496. "[T]he court must find that there are 'compelling' 

reasons 'in addition to, and separate from,' the mitigating factors, which require 

the downgrade in the interest of justice." State v. Locane, 454 N.J. Super. 98, 

121 (App. Div. 2018) (quoting State v. Jones, 197 N.J. Super. 604, 607 (App. 

Div. 1984)). "The interest of justice analysis does not include consideration of 

defendant's overall character or contributions to the community." Id. at 122 

(citing State v. Lake, 408 N.J. Super. 313, 328-29 (App. Div. 2009)). Here, 

defendant has not demonstrated that the mitigating factors substantially 

outweighed the aggravating factors or that the interest of justice demands a 

sentencing downgrade. Therefore, defendant has not demonstrated a reasonable 

probability that a sentencing downgrade argument would have been successful. 
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Failure to File a Direct Appeal 

One of the grounds for PCR is ineffective assistance of counsel "based on 

trial counsel's failure to file a direct appeal of the judgment of conviction and 

sentence upon defendant's timely request." R. 3:22-2(e). "[A] lawyer who 

disregards specific instructions from the defendant to file a notice of appeal acts 

in a manner that is professionally unreasonable." State v. Jones, 446 N.J. Super. 

28, 32 (App. Div. 2016) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 477 

(2000)). In most circumstances, an attorney's error, "even if professionally 

unreasonable," does not require setting aside a judgment if the error had no 

effect on the outcome of the case. Ibid. (citation omitted). However, a 

"forfeiture of the proceeding itself" is a special circumstance that leads to a 

"presumption of prejudice." Ibid. (citations omitted). "[W]hen counsel's 

constitutionally deficient performance deprives a defendant of an appeal that he 

otherwise would have taken, the defendant has made out a successful ineffective 

assistance of counsel" claim. Ibid. (citing Flores-Ortega, 528 U.S. at 484). 

The State argues that defendant has not established a prima facie case of 

ineffective assistance of counsel because he was aware of his right to appeal, 

was fully informed about the consequences of the failure to file a timely appeal, 
16 A-3763-19

signed a notice appeal rights form, and received a favorable sentence in 

accordance with N.J.S.A. 2C:14-2(a)(1). 

Defendant relies on his letter to trial counsel requesting guidance on 

whether to appeal his sentence, and counsel's letter response regarding the 

likelihood of appellate success. As explained below, the record supports 

counsel's opinion. Defendant points to no other communications regarding 

appealing his sentence. Thus, he has not demonstrated that he ever directed 

counsel to file an appeal. Accordingly, he has not shown that a direct appeal 

was not filed due to ineffective assistance of counsel. 

Failure to Hold an Evidentiary Hearing 

Defendant contends that he made out a prima facie case of ineffective 

assistance of counsel, and that he was entitled to an evidentiary hearing because 

"his overall claim is dependent on evidence outside of the record." We disagree. 

To obtain an evidentiary hearing, defendant must establish, by a 

preponderance of the evidence, "a prima facie case for relief, material issues of 

disputed fact, and show that an evidentiary hearing is necessary to resolve the 

claims." R. 3:22-10(b)). "A 'prima facie case' requires that a defendant 

'demonstrate a reasonable likelihood that his or her claim, viewing the facts 

alleged in the light most favorable to the defendant, will ultimately succeed on 
17 A-3763-19

the merits[,]' . . . and must be supported by 'specific facts and evidence 

supporting his allegations.'" State v. Peoples, 446 N.J. Super. 245, 254 (App. 

Div. 2016) (quoting State v. Porter, 216 N.J. 343, 355 (2013)).

However, "[i]f the [PCR] court perceives that holding an evidentiary 

hearing will not aid the court's analysis of whether the defendant is entitled to 

post-conviction relief, . . . then an evidentiary hearing need not be granted." 

State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) (quoting State v. 

Marshall, 148 N.J. 89, 158 (1997)). If the defendant's "allegations are too vague, 

conclusory, or speculative[,]" they are not entitled to an evidentiary hearing. 

Porter, 216 N.J. at 355 (quoting Marshall, 148 N.J. at 158). "Rather, defendant 

must allege specific facts and evidence supporting his allegations." Ibid. 

Similarly, "'a petitioner must do more than make bald assertions that he was 

denied the effective assistance of counsel. He must allege facts sufficient to 

demonstrate counsel's alleged substandard performance.'" Ibid. (quoting State 

v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). 

Here, as we have already explained, defendant did not present a prima 

facie case for PCR. See R. 3:22-10(b) ("A defendant shall be entitled to an 

evidentiary hearing only upon the establishment of a prima facie case . . . ."). 

Nor has he demonstrated that an evidentiary hearing was required to resolve his 
18 A-3763-19

claims due to material disputed facts outside the record. See ibid. (defendant 

must also establish "there are material issues of disputed fact that cannot be 

resolved by reference to the existing record . . . ."). As to his claim that trial 

counsel failed to introduce character letters at sentencing, defendant has not 

identified those character witnesses or provided this court with any of the 

character letters. With regard to trial counsel's alleged substandard sentencing 

argument, the transcript reveals exactly what transpired. Similarly, the record 

includes adequate reference to the communications between defendant and trial 

counsel regarding filing a direct appeal of his sentence. Notably absent is any 

assertion that he expressly directed trial counsel to file an appeal. Consequently, 

an evidentiary hearing was not required. 

To the extent we have not addressed them, defendant's remaining 

arguments lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

In sum, defendant has not demonstrated a "reasonable probability that, but 

for counsel's unprofessional errors, the result of the proceeding would have been 

different." Strickland, 446 U.S. at 694. Denial of post-conviction relief without 

an evidentiary hearing was appropriate. 
19 A-3763-19

Affirmed.