SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0361-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL GOMES, a/k/a

MICHAEL WELLS,

Defendant-Appellant.

___________________________________

Submitted January 25, 2017 – Decided

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey, 

Law Division, Hudson County, Indictment No. 

13-09-1698.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Abby P. Schwartz, Designated 

Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor, 

attorney for respondent (Frances Tapia Mateo, 

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Michael Gomes, appeals from an order denying his 

petition for post-conviction relief (PCR) after oral argument, 

without an evidentiary hearing. We affirm.

NOT FOR PUBLICATION WITHOUT THE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.

March 22, 2017
2 A-0361-15T1

A grand jury charged defendant with first-degree robbery, 

N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon 

for unlawful purposes, N.J.S.A. 2C:39-4a (count two); seconddegree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, (count 

three); and third-degree receiving stolen property, N.J.S.A.

2C:20-7 (count four).

Pursuant to a plea agreement on May 8, 2014, defendant pled 

guilty to count three of the indictment. Prior to sentencing, on 

June 19, 2014, defendant filed a pro se motion seeking to have

trial counsel relieved and to withdraw his guilty plea. Based 

upon that motion, a new attorney was appointed to represent 

defendant.

 On February 20, 2015, defendant appeared for a hearing on the 

motion with his new counsel. Defendant withdrew his motion and 

advised the judge he was prepared to proceed with sentencing. That 

same day, defendant was sentenced to a five-year state prison term

with three-years' parole ineligibility. Appropriate fines and 

penalties were imposed. The remaining counts of the indictment 

were dismissed.

On March 9, 2015, defendant filed a pro se PCR. Four months 

later, defendant's PCR counsel filed a certification on behalf of 

defendant and submitted a supplemental brief. In his PCR, 

defendant argued that his counsel was ineffective for failing to 
3 A-0361-15T1

review the case, failing to provide defendant with discovery, 

failing to apprise defendant of the strengths and weaknesses of 

the State's evidence, and failing to investigate the plea bargain's 

effect on pending criminal charges against him in Massachusetts.

In a thorough and well-reasoned oral opinion, the judge denied 

the petition finding that defendant's arguments primarily amounted 

to vague allegations and the assertions were "directly contrary 

to the statements [defendant] made under oath at the time he 

entered his plea." Specifically, the judge pointed to defendant's 

statement during the plea that counsel fully discussed the case, 

its facts and circumstances, and his potential defenses. The 

judge also noted that counsel properly apprised defendant of his 

sentence exposure, explaining that defendant's prior offenses made 

him eligible for an extended prison term if convicted after trial.

Defendant alleged that his second trial counsel did not make 

a sufficient effort to determine the status of the pending 

Massachusetts charges, and argued that this would have had a "big 

effect" on the New Jersey criminal charges.1 The judge disagreed. 

Subsequent to the plea, the judge noted those charges remained 

pending due to an issue with the testing of the narcotics involved. 

 

1 There is nothing in the record beyond defendant's bald assertion 

as to whether the Massachusetts criminal charges or their status 

could have had any impact on the New Jersey charges.
4 A-0361-15T1

The judge found this issue could not have been reasonably 

anticipated by defendant's counsel, and concluded the argument was 

without merit.

Defendant raises the following point on appeal:

POINT I

BY FAILING TO INVESTIGATE THE OFFENSE, FAILING 

TO GIVE [DEFENDANT] A COPY OF HIS DISCOVERY 

SO THAT [DEFENDANT] COULD GO OVER THE STATE'S 

PROOFS WITH HIS [ATTORNEY], FAILING TO MEET 

WITH [DEFENDANT], AND, FAILING TO FILE A 

MOTION TO WITHDRAW [DEFENDANT'S] GUILTY PLEA, 

COUNSEL WAS INEFFECTIVE IN VIOLATION OF 

[DEFENDANT'S] RIGHTS TO DUE PROCESS AND A FAIR 

TRIAL.

"Post-conviction relief is New Jersey's analogue to the 

federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 

459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled 

to post-conviction relief if there was a "[s]ubstantial denial in 

the conviction proceedings of defendant's rights under the 

Constitution of the United States or the Constitution or laws of 

the State of New Jersey[.]" "A petitioner must establish the 

right to such relief by a preponderance of the credible evidence." 

Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain 

that burden, specific facts" that "provide the court with an 

adequate basis on which to rest its decision" must be articulated. 

State v. Mitchell, 126 N.J. 565, 579 (1992).
5 A-0361-15T1

Claims of constitutionally ineffective assistance of counsel 

are well suited for post-conviction review. See R. 3:22-4(a)(2); 

Preciose, supra, 129 N.J. at 460. In determining whether a 

defendant is entitled to relief on the basis of ineffective 

assistance of counsel, New Jersey courts apply the two-prong test 

articulated by the United States Supreme Court in Strickland v. 

Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.

2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 

658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). 

Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-

50 (1987). 

Under the first prong of the Strickland test, a "defendant 

must show that [defense] counsel's performance was deficient." 

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693. Under the second prong, a defendant must demonstrate 

"a reasonable probability that, but for counsel's unprofessional 

errors, the result of the proceeding would have been different." 

Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. 

In demonstrating that counsel's performance was deficient 

under the first prong of Strickland, a defendant must overcome "a

strong presumption that counsel's conduct falls within the wide 

range of reasonable professional assistance." Fritz, supra, 105 
6 A-0361-15T1

N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct.

at 2065, 80 L. Ed. 2d at 694).

In satisfying the second prong, because prejudice is not 

presumed, a defendant must typically demonstrate "how specific 

errors of counsel undermined the reliability of the finding of 

guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047 

n.26, 80 L. Ed. 2d at 668 n.26 (citation omitted); see also Roe v. 

Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. 

Ed. 2d 985, 998 (2000). There must be "a probability sufficient 

to undermine confidence in the outcome." Strickland, supra, 466 

U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. 

The United States Supreme Court has applied these principles 

to a criminal defense attorney's representation of an accused in 

connection with a plea negotiation. Lafler v. Cooper, 566 U.S.

156, 162-163, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 

(2012); Missouri v. Frye, 566 U.S. 134, 144 132 S. Ct. 1399, 1407-

08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate 

with "reasonable probability" that the result would have been 

different had he received proper advice from his trial 

attorney. Lafler, supra, 566 U.S. at 163, 132 S. Ct. at 1384, 182 

L. Ed. 2d at 407 (citing Strickland, supra, 466 U.S. at 694, 104 

S. Ct. at 2068, 80 L. Ed. 2d at 698).
7 A-0361-15T1

Review of an order granting or denying PCR contains 

consideration of mixed questions of law and fact. State v. Harris, 

181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. 

Ct. 2973, 162 L. Ed. 2d 898 (2005). The appellate court defers

to a PCR court's factual findings and will uphold those findings 

that are "supported by sufficient credible evidence in the record." 

State v. Nash, 212 N.J. 518, 540 (2013) (citations omitted). 

However, a PCR court's interpretations of law are provided no 

deference and are reviewed de novo. Id. at 540-41. 

On appeal, defendant contends he received ineffective 

assistance of counsel since his counsel failed to review the case, 

failed to provide him with discovery, failed to apprise defendant 

of the strengths and weaknesses of the State's evidence, and failed 

to investigate the plea bargain's effect on his pending criminal 

charges in Massachusetts.

We view defendant's criticism of his counsel's performance 

as directed at his post-conviction dissatisfaction with the plea 

agreement. In essence, defendant alleges that, but for his 

counsel's unprofessional errors, he would not have entered into 

the plea. The record belies that bald allegation. See State v. 

Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 

162 N.J. 199 (1999) (" A petitioner must do more than make bald 
8 A-0361-15T1

assertions that he was denied the effective assistance of 

counsel.")

After the terms of the plea agreement were placed on the 

record by counsel, the judge, who was also the PCR judge, addressed 

defendant regarding his understanding of its terms. The judge 

specifically addressed defendant's right to go to trial and the 

consequences of pleading guilty to the charged offense. The judge 

also alerted defendant to the imposition of parole ineligibility 

and inquired whether he had questions for the court or his counsel. 

At the conclusion of the judge's instructions, counsel questioned

defendant about the circumstances surrounding the commission of 

the offense. Defendant acknowledged his culpability, specifically 

as to the possession of a weapon charge for which he was pleading 

guilty. Despite the opportunity to do so, defendant did not 

express reticence in entering the plea based upon the arguments 

he now raises; that he was uniformed by a lack of discovery or a 

lack of knowledge about the strengths and weaknesses of the State's 

case. 

Regarding the plea process, a guilty plea may not be entered 

without the judge first addressing defendant personally and 

determining by inquiry of defendant and others, in the court's 

discretion, that there is a factual basis for the plea and that 

the plea is made voluntarily, with an understanding of the nature 
9 A-0361-15T1

of the charges and consequences of the plea. R. 3:9-2; State v. 

Kovack, 91 N.J. 476, 484 (1982); accord State v. Simon, 161 N.J.

416, 443 (1999); State v. Barboza, 115 N.J. 415, 420-21 (1989); 

State v. Howard, 110 N.J. 113, 122 (1988); State v. Sainz, 107 

N.J. 283, 292-93 (1987). Here, the "cold record" not only supports 

a finding that the plea hearing complied with R. 3:9-2, the 

substance of the hearing directly refutes defendant's arguments 

of ineffective assistance.

Additionally, the plea agreement permitted defendant to plead 

guilty to one count of a four-count indictment, which included a 

count for first-degree robbery. The agreement called for a fiveyear-term of imprisonment subject to a parole disqualifier. 

However, if convicted after trial on the other charges, defendant 

was subject to a more severe aggregate sentence of incarceration, 

including eighty-five percent parole ineligibility subject to the 

"No Early Release Act" on the robbery. Notably, the State's proofs 

included a co-defendant's statement implicating defendant.

Placed in context, we are satisfied that counsel's 

performance with respect to his obtaining the plea agreement was 

well within the minimum standard of effective assistance of 

counsel. "The test is not whether defense counsel could have done 

better, but whether he [or she] met the constitutional threshold 

for effectiveness." State v. Nash, supra, 212 N.J. at 543.
10 A-0361-15T1

The record is devoid of any basis to support the finding that 

counsel's performance was deficient or that he was not functioning 

in a manner guaranteed by the Sixth Amendment. See State v. 

Gaitan, 209 N.J. 339, 349-50 (2012) (citation omitted), cert. 

denied, ____ U.S. ____, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). 

Therefore, we conclude defendant has not made out a prima facie 

case of ineffective assistance of counsel. Preciose, supra, 129 

N.J. at 463.

Notwithstanding our determination as to the failure to make 

out a prima facie case, we briefly address the second Strickland

prong. Following our review of the record, we hold with respect 

to the second prong that defendant has also failed to demonstrate 

how any alleged deficiency resulted in a prejudice that, "but for 

counsel's unprofessional errors, the result of the proceeding 

would have been different." Strickland, supra, 466 U.S. at 694, 

104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J.

at 52 (citations omitted).

Finally, we reject defendant's argument that it was error to 

deny the PCR without an evidentiary hearing. "An evidentiary 

hearing . . . is required only where the defendant has shown a 

prima facie case and the facts on which he relies are not already 

of record." Pressler & Verniero, Current N.J. Court Rules, comment 

2 on R. 3:22-10 (2015). The mere raising of a claim for PCR does 
11 A-0361-15T1

not entitle defendant to an evidentiary hearing. State v. 

Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied,

162 N.J. 199 (1999). As defendant failed to establish a prima 

facie case of ineffective assistance of counsel, no evidentiary 

hearing was required.

In light of our review of the record, we conclude defendant's

arguments lack sufficient merit to warrant discussion in a written 

opinion to the extent not already addressed. R.2:11-3(e)(2).

Affirmed.