RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4610-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NELSON GOMEZ,

Defendant-Appellant.

_______________________________

Submitted July 23, 2018 – Decided

Before Judges Whipple and Suter.

On appeal from Superior Court of New Jersey, 

Law Division, Monmouth County, Indictment No. 

09-05-1146.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Suzannah Brown, Designated 

Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Mary R. 

Juliano, Assistant Prosecutor, of counsel and 

on the brief; Emily M. M. Pirro, Legal 

Assistant, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

August 3, 2018
2 A-4610-16T4

Defendant Nelson Gomez appeals from the February 28, 2017 

order denying of his petition for post-conviction relief (PCR)

without an evidentiary hearing. After considering the relevant 

facts in light of the applicable legal principles, we affirm.

On May 29, 2009, defendant was indicted and charged with 

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); 

and second-degree endangering the welfare of a child, N.J.S.A. 

2C:24-4(a) stemming from allegations he sexually abused six year 

old N.B.

A number of lawyers represented defendant throughout the 

proceedings. At least one lawyer, Barry Shapiro, filed motions 

for Miranda1 and N.J.R.E. 803(c)(27) hearings, and in March 2010 

sent discovery requests to the State. In May 2010, John Goins 

became defendant's lawyer. 

On September 27, 2010, defendant withdrew his pretrial 

motions and on October 13, 2010, defendant entered a guilty plea 

to the first count of the indictment, amended to second-degree 

sexual assault, N.J.S.A. 2C:14-2(b). In exchange, the State 

recommended the dismissal of the second count, a sentence of eight 

years, with an eighty-five percent period of parole ineligibility,

Megan's Law consequences, parole supervision for life, no victim 

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
3 A-4610-16T4

contact, and restitution. The judge questioned defendant 

thoroughly about the plea form, including the portions about 

Megan's Law and parole supervision for life, ensured he understood 

his right to a trial, and he was not coerced into accepting the 

plea agreement. Defendant testified he touched the chest of a 

young girl, between the age of six and thirteen, outside of her 

clothing in order to sexually gratify himself. The court accepted 

defendant's guilty plea.

On March 21, 2011, Christopher Campbell substituted as 

defendant's attorney and moved to withdraw the guilty plea, arguing

defendant's prior attorneys were ineffective for their failure to 

file motions, and defendant's plea allocution was deficient. These 

motions were heard by the Honorable Jamie Perri, J.S.C., in May 

2011. 

After reviewing the plea transcript, Judge Perri confirmed 

the defendant was not under the influence of drugs or alcohol, 

entered the plea agreement voluntarily, and free of any force, 

coercion, or threats. The judge examined defendant in detail 

regarding his understanding of the plea agreement, and his 

acknowledgment under oath that he had read and understood the 

terms of the plea agreement and had entered the agreement freely.

Further, defendant reviewed the plea agreement with his attorney 

and indicated his satisfaction with his attorney's services. Judge 
4 A-4610-16T4

Perri found defendant pointed to no colorable facts supporting his 

claim of innocence, State v. Slater, 198 N.J. 145, 157-58 (2009). 

Defendant's previous attorneys had prepared and filed motions and 

thus his claim of ineffective assistance was without support, the 

existence of a plea bargain weighed against withdrawal, and the 

withdrawal of the plea would force a young child to testify. 

Lastly, Judge Perri rejected defendant's argument regarding his 

plea allocution, finding the judge's use of the word "chest" 

instead of the statutory language "breast" was "nothing more than 

semantics." As such, she denied defendant's motion to withdraw 

his plea and sentenced defendant in accordance with the plea 

agreement.

On October 16, 2015, defendant filed a pro se petition for 

PCR. After PCR counsel entered an appearance, defendant filed an 

amended petition in October 2016 asserting prior lawyers were 

ineffective for their failure: (1) to investigate the case, (2) 

to obtain DCPP records, (3) to file various motions, and (4) advise 

defendant of the consequences of the plea. Defendant also asserted 

his petition was not procedurally barred by Rule 3:22-4 because 

there was not a sufficient record from which to make a direct 

appeal.

On February 17, 2017, the Honorable Joseph W. Oxley, J.S.C., 

heard oral argument on the petition, and denied defendant's 
5 A-4610-16T4

petition in a February 28, 2017 written decision addressing all 

defendant's arguments and denying defendant's petition. He found 

defendant's claims procedurally barred by Rules 3:22-4 and 3:22-5 

because defendant had raised the same arguments during his motion 

to withdraw his guilty plea, Judge Perri determined the ineffective 

assistance of counsel claims at that time, and fundamental 

injustice would not result because defendant knowingly and 

voluntarily entered into the plea. Despite finding defendant's 

claims were procedurally barred, Judge Oxley also denied 

defendant's PCR claims on their merits.

This appeal followed. We review the PCR judge's legal 

conclusions under a de novo standard. State v. Harris, 181 N.J. 

391, 415-16 (2004) (citing Toll Bros. v. Twp. of W. Windsor, 173 

N.J. 502, 549 (2002)). We review a PCR petition with deference 

to the trial court's factual findings. State v. Nash, 212 N.J. 

518, 540 (2013) (citations omitted). We "give deference to those 

findings of the trial judge which are substantially influenced by 

his opportunity to hear and see the witnesses and to have the 

'feel' of the case, which a reviewing court cannot enjoy." State 

v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 

N.J. 146, 161 (1964)).
6 A-4610-16T4

To prevail on a claim of ineffective assistance of counsel, 

defendant must satisfy the two-prong Strickland2 test: (l) 

counsel's performance was deficient, and he made errors that were 

so egregious counsel was not functioning effectively as guaranteed 

by the Sixth Amendment to the United States Constitution; and (2) 

"defendant must show that there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the 

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

687; State v. Fritz, 105 N.J. 42, 52 (1987).

Under the first prong, "counsel is strongly presumed to have 

rendered adequate assistance and made all significant decisions 

in the exercise of reasonable professional judgment." Strickland, 

466 U.S. at 690. The court must determine whether the acts or 

omissions of counsel "were outside the wide range of professionally 

competent assistance." Ibid. Adequate assistance of counsel must 

be measured by a standard of "reasonable competence." State v. 

Jack, 144 N.J. 240, 248 (1996) (citing Fritz, 105 N.J. at 53).

Under the second prong of Strickland, defendant must prove 

prejudice. Fritz, 105 N.J. at 52. He must show a "reasonable 

probability" that counsel's deficient performance affected the 

outcome of the proceeding. Strickland, 466 U.S. at 694. A 

 

2 Strickland v. Washington, 466 U.S. 668 (1984). 
7 A-4610-16T4

reasonable probability is defined as "a probability sufficient to 

undermine confidence in the outcome." Ibid. Applying these 

standards, and having undertaken a thorough review of the record 

and having considered the arguments raised, we affirm for the 

reasons expressed by Judge Oxley in his through written decision.

Affirmed.