## RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 4610
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STATE OF NEW JERSEY, Plaint iff
- 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
- 1 1 46. 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 Prosecut or, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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, 20182 A - 4610
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Defendant Nelson Gomez appeals from the February 28, 2017
order den ying of his petition for post - conviction relief (PCR) without an evidentiary hearing . After considering the rel evant facts in light of the applicable legal principles, w e 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:2 4
- 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 Miranda 1 and N.J.R.E. 803(c)(27) hearing s , 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 motion s and o n October 13, 2010, defendant enter ed 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 paro le ineligibility , Megan's Law consequences , parole supervision for life, no victim

1 Miranda v. Arizona , 384 U.S. 436 (1966) .3 A - 4610
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contact, and restitution. The judge questioned defendant thoroughly about the plea form, including the portions about Megan's Law and parole supervision for life, en sure d h e understood his right to a trial, and he was not coerced into accepting the plea agreement. D efendant 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. T he court ac cepted 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 pr ior attorneys were ineffective for their failure to file motions, and defendan t's pl ea allocution was deficient. These motions were heard by the Honorable Jamie Perri , J.S.C., i n 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 d efendant in detail regarding his understanding of the plea agreement , and his acknowledg ment under oath that he had read and understood the
t erms of the plea agreement and had entered the agreement freely . Further, d efendant reviewed the plea agreement with his attorney
and indicated his satisfaction with his attorney's services. Judge4 A - 4610
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Perri found defendant pointed to no colorable facts supporting his claim of innocen ce, 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 withdrawa l 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 d efendant in accord ance with the plea agreement. On October 16, 2015, defendant filed a pro se petition for
PCR . After PCR counsel entered an appearance, d efendant filed an
amende d 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 R ule 3:22
- 4 because there was not a sufficient record fro m which to make a direct appeal. On February 17, 2 017, the Honorable Joseph W. Oxley, J.S.C.,
heard oral argument on the petition , and deni ed defendant's5 A - 4610
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petition in a February 2 8 , 2017 written decision addressing all defendant's arguments and denying defendant's petition. He found defendant's claims procedurally barred by Rule s 3:22
- 4 and 3:22
- 5 because defendant had raised the same argumen ts during his motion to withdraw his guilty plea, Judge Perri de termined the ineffective assistance of counsel claims at that time , and fundamental injustice would not result because defendant knowingly and
vol untarily entered into the plea. Despite findi ng 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
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To prevail on a claim of ineffective assistance of counsel, defendant must satisfy the two
- prong Strickland 2 test: (l)
counsel's performance was deficie nt, 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 unprof essional 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 significa nt 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 assis tance 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
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reasonable probability is defined as "a probability sufficient to undermine confidence in the outcome." Ibid. Applyi ng 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 thr ough written decision. Affirmed.