                                NOT FOR PUBLICATION WITHOUT THE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.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5870-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CARLOS B. GONZALEZ,

     Defendant-Appellant.
_________________________

                   Submitted December 11, 2019 – Decided February 7, 2020

                   Before Judges Koblitz and Gooden Brown.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Ocean County, Indictment Nos.
                   11-08-1353 and 12-02-0307.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Monique D. Moyse, Designated Counsel,
                   on the brief).

                   Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney for respondent (Samuel J. Marzarella, Chief
                   Appellate Attorney, of counsel; Roberta DiBiase,
                   Supervising Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant Carlos Gonzalez appeals from the July 16, 2018 Law Division

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

evidentiary hearing. We affirm.

      We glean these facts from the record. In 2011, defendant and three co-

defendants were charged in a four-count indictment with murder, N.J.S.A.

2C:11-3 and 2C:2-6; first-degree conspiracy to commit murder, N.J.S.A. 2C:5-

2 and 2C:11-3; first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; and

second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a) (the murder indictment). In 2012, defendant and one co-defendant were

charged in a one-count indictment with third-degree aggravated assault, N.J.S.A.

2C:12-1(b)(5)(h) (the aggravated assault indictment). The murder indictment

stemmed from the 2010 shooting of two victims, one fatally, in connection with

gang-related activities.   The aggravated assault indictment stemmed from

defendant punching a corrections officer in the county jail where he was

incarcerated pending trial on the murder indictment.

      Represented by private counsel, on November 13, 2013, defendant entered

a negotiated guilty plea to an amended charge of first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1), and aggravated assault of the corrections

officer. Under the terms of the plea agreement, the State agreed it would not


                                                                        A-5870-17T4
                                       2
seek a sentence in excess of twenty-five years, subject to an eighty-five percent

period of parole ineligibility pursuant to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2, on the aggravated manslaughter charge, to run concurrent

with the aggravated assault. The State also agreed to move for the dismissal of

the remaining counts of the murder indictment as well as an unrelated 2010

indictment. At the February 26, 2014 sentencing hearing, without objection, an

attorney from plea counsel's firm represented defendant. The judge sentenced

defendant to an aggregate twenty-two-year term of imprisonment, subject to

NERA, in accordance with the plea agreement.

      At the sentencing hearing, the judge imposed sentence after finding

aggravating factors three, five, and nine, and mitigating factor seven. See

N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will commit another

offense;" N.J.S.A. 2C:44-1(a)(5), "[t]here is a substantial likelihood that the

defendant is involved in organized criminal activity;" and N.J.S.A. 2C:44-

1(a)(9), "[t]he need for deterring the defendant and others from violating the

law[.]" See also N.J.S.A. 2C:44-1(b)(7), "[t]he defendant has no history of prior

delinquency or criminal activity or has led a law-abiding life for a substantial

period of time before the commission of the present offense[.]" Weighing the

factors, the judge was "clearly convinced [that] the aggravating factors


                                                                         A-5870-17T4
                                       3
substantially outweigh[ed] the mitigating factor[]." On February 10, 2015, we

affirmed the sentence on a Sentence Only Argument (SOA) calendar, see R. 2:9-

11, "conclud[ing] that the findings of fact regarding aggravating and mitigating

factors were based on competent and credible evidence in the record[.]"

      On January 4, 2017, defendant filed a timely pro se PCR petition,

certifying that his attorney "failed to present . . . all of the mitigating factors

relevant to [his] case[,]" resulting in the denial of effective assistance of counsel.

Additionally, in a supplemental affidavit, defendant averred that his "plea

attorney was ineffective in failing to properly explain . . . the difference between

first[-]degree aggravated [manslaughter] and second[-]degree manslaughter[,]"

and had he been "properly" advised, he "would not have [pled] guilty" but would

have gone "to trial." In his supporting briefs, in addition to arguing that his

attorney failed "to argue" certain "mitigating factors," defendant asserted his

attorney "neglected to adequately consult with him[,]" and failed to "provide

discovery and review same with [him]."

      Following oral argument, Judge James Blaney denied defendant's petition.

In a July 16, 2018 written decision, the judge reviewed the factual background

and procedural history of the case, applied the applicable legal principles, and

concluded defendant failed to establish a prima facie case of ineffective


                                                                              A-5870-17T4
                                          4
assistance of counsel (IAC). The judge found defendant "failed to show . . .

counsel's performance fell below the objective standard of reasonableness" set

forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our

Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or "that the outcome

would have been different" as required under "the second prong of the

Strickland/Fritz test."   Additionally, in rejecting defendant's request for an

evidentiary hearing, the judge concluded defendant failed to present any issues

that could not be resolved by reference to the existing record.

      Specifically, after considering defendant's claim that "there was an

'ongoing lapse of communication' between himself and counsel during the

proceedings," the judge rejected the claim as belied by the record. Relying on

defendant's colloquy at the plea hearing, Judge Blaney noted defendant "stated

under oath that he had 'more than enough time' to meet with [his attorney] before

he entered the plea agreement, that [his attorney] explained 'in detail' the nature

of both charges [defendant] ple[]d to, and that [his attorney] answered all of

[defendant's] questions to his satisfaction." Defendant also confirmed these

representations on "each page of the plea form[.]" Additionally, defendant

"stated on the record that he was 'more than satisfied' with [his attorney's]

representation of him."    Likewise, "[defendant] stated on the record at his


                                                                           A-5870-17T4
                                        5
sentencing hearing that he was satisfied with the representation of both of his

attorneys."

      Addressing defendant's assertion that "had he known of the discovery

contents[,]" he "would have taken th[e] case to trial," the judge pointed out that

defendant failed to "provide th[e] [c]ourt with any affidavits or information

explaining what discovery he claims he was unaware of at the time he ple []d,

nor does he explain how this discovery would have persuaded him to take the

case to trial." Thus, the judge rejected the claim as "a 'bald assertion' prohibited

by [State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)]."

      Next, the judge addressed defendant's arguments that his attorney was

ineffective for failing to argue at sentencing mitigating factors two, seven, eight,

nine, and thirteen.    See N.J.S.A. 2C:44-1(b)(2), "[t]he defendant did not

contemplate that his conduct would cause or threaten serious harm;" N.J.S.A.

2C:44-1(b)(8), "[t]he defendant’s conduct was the result of circumstances

unlikely to recur;" N.J.S.A. 2C:44-1(b)(9), "[t]he character and attitude of the

defendant indicate that he is unlikely to commit another offense;" and N.J.S.A.

2C:44-1(b)(13), "[t]he conduct of a youthful defendant was substantially

influenced by another person more mature than the defendant."

      In rejecting these contentions, the judge explained:


                                                                            A-5870-17T4
                                         6
                    Here, [defendant] admitted to shooting [the
             victim], which resulted in his death. [Defendant]
             further admitted to hitting a corrections officer with his
             fist while in Ocean County Jail, which resulted in the
             officer sustaining injuries. This [c]ourt does not find
             that [defendant's] counsel was ineffective for failing to
             argue that one who shoots or assaults another did not
             contemplate that his conduct would cause serious harm
             [in accord with mitigating factor two], nor does this
             [c]ourt find that the circumstances were random
             occurrences to require the finding of mitigating factor
             eight.

       Regarding mitigating factor seven, which the sentencing court in fact

found, Judge Blaney stated:

                    At the sentencing hearing, [defendant's attorney]
             stated, "I would like to note that [defendant] is a young
             man, [twenty-two-]years of age, who up until this point
             has led a law abiding life. As you can see from his
             record, he has no record." [1] Although counsel did not
             directly argue for mitigating factor seven, he did inform
             the [c]ourt of [defendant's] lack of a prior record . . . .




1
    Counsel added:

             "[W]e're here today because [defendant] . . . made an
             extremely poor choice, and I . . . anticipate that when
             the time comes for him to speak, he will acknowledge
             that poor choice and he will also show extreme remorse.
             So as a result of all of that, . . . I believe that the [c]ourt
             should show some leniency towards [defendant] and
             give him less than the [twenty-five] years bargained
             for."
                                                                               A-5870-17T4
                                           7
      As to mitigating factor nine, the judge explained that the court "asked

[defendant] at the sentencing hearing if he wished to address the [c]ourt [,]" as a

result of which defendant "displayed his remorse to the court" for the court to

consider if it "chose to." Regarding mitigating factor thirteen, analogizing the

case to State v. Torres, 313 N.J. Super. 129 (App. Div. 1998), the judge

concluded "this [was] the same type of conduct that the Torres court found to be

a 'cold-blooded act' [to] which mitigating factor . . . [thirteen did] not apply."

Further, the judge found "no evidence" in the record that defendant "was

influenced by an older individual prior to committing the crime" to support

mitigating factor thirteen. Therefore, according to the judge, "counsel was not

ineffective for choosing not to argue this mitigating factor."

      Turning to the prejudice prong of the Strickland test, the judge explained:

            [Defendant] received a [twenty-two] year sentence
            subject to NERA, for two separate indictments for two
            separate charges of aggravated manslaughter and
            aggravated assault. The aggravated manslaughter
            charge allows for a maximum term of imprisonment of
            thirty years. Charges dropped included first-degree
            conspiracy to commit murder, first-degree attempted
            murder, and second-degree possession of a weapon for
            an unlawful purpose. These dropped charges all would
            have exposed [defendant] to a substantially lengthy
            sentence and [defendant] cannot show that had his
            counsel argued these factors, his sentence would have
            been reduced any more than it was already reduced.


                                                                           A-5870-17T4
                                        8
The judge entered a memorializing order and this appeal followed.

      On appeal, defendant raises the following single point for our

consideration:

            POINT ONE

            [DEFENDANT]    IS   ENTITLED    TO  AN
            EVIDENTIARY HEARING ON HIS CLAIM THAT
            HIS ATTORNEY RENDERED INEFFECTIVE
            ASSISTANCE OF COUNSEL FOR FAILING TO
            COMMUNICATE,      REVIEW     DISCOVERY,
            INVESTIGATE, AND REVIEW THE CHARGES
            ADEQUATELY, ALL OF WHICH LED TO
            INADEQUATE REPRESENTATION DURING PLEA
            NEGOTIATIONS AND INADEQUATE ADVOCACY
            AT SENTENCING.

      Merely raising a claim for PCR does not entitle a defendant to an

evidentiary hearing. See Cummings, 321 N.J. Super. at 170. Rather, trial courts

should grant evidentiary hearings only if the defendant has presented a prima

facie claim of IAC, material issues of disputed fact lie outside the record, and

resolution of those issues necessitates a hearing. R. 3:22-10(b); State v. Porter,

216 N.J. 343, 355 (2013). A PCR court deciding whether to grant an evidentiary

hearing "should view the facts in the light most favorable to a defendant." State

v. Preciose, 129 N.J. 451, 463 (1992). However, "[a] court shall not grant an

evidentiary hearing" if "the defendant's allegations are too vague, conclusory or

speculative[.]" R. 3:22-10(e)(2). Indeed, the defendant "must do more than

                                                                          A-5870-17T4
                                        9
make bald assertions that he was denied the effective assistance of counsel. He

must allege facts sufficient to demonstrate counsel's alleged substandard

performance." Cummings, 321 N.J. Super. at 170.

      In turn, we review under the abuse of discretion standard the PCR court's

determination to proceed without an evidentiary hearing. State v. Marshall, 148

N.J. 89, 157 (1997). We also typically review a PCR petition with "deference

to the trial court's factual findings . . . 'when supported by adequate, substantial

and credible evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (quoting Toll

Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). However, where,

as here, "no evidentiary hearing has been held, we 'may exercise de novo review

over the factual inferences drawn from the documentary record by the [PCR

judge].'"   State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010)

(quoting Harris, 181 N.J. at 421). We also review de novo the legal conclusions

of the PCR judge. Harris, 181 N.J. at 415-16 (citing Toll Bros., 173 N.J. at 549).

      To establish a prima facie claim of IAC, defendant must satisfy the two-

prong Strickland test: he must show that (l) "counsel's performance was

deficient" and he "made errors so serious that counsel was not functioning as the

'counsel' guaranteed . . . by the Sixth Amendment" to the United States

Constitution; and (2) "there is a reasonable probability that, but for counsel's


                                                                            A-5870-17T4
                                        10
unprofessional errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J. at 52. A reasonable

probability is defined as "a probability sufficient to undermine confidence in the

outcome." Id. at 694.

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

rendered adequate assistance and made all significant decisions in the exe rcise

of reasonable professional judgment." Strickland, 466 U.S. at 690. Adequate

assistance of counsel must be measured by a standard of "reasonable

competence." State v. Jack, 144 N.J. 240, 248 (1996) (quoting Fritz, 105 N.J.

at 53).   However, "'[r]easonable competence' does not require the best of

attorneys[.]" State v. Davis, 116 N.J. 341, 351 (1989). Under the second

Strickland prong, defendant must prove prejudice. Fritz, 105 N.J. at 52. In order

to establish the Strickland prejudice prong to set aside a guilty plea, "'a

[defendant] must convince the court that a decision to reject the plea bargain'"

and "insist on going to trial" would have been "rational under the

circumstances." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011)

(quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). That determination

should be "based on evidence, not speculation." Ibid. Because there is a strong

presumption that counsel "rendered adequate assistance and made all significant


                                                                          A-5870-17T4
                                       11
decisions in the exercise of reasonable professional judgment[,]" Strickland, 466

U.S. at 690, a defendant "bears the burden of proving" both prongs of an IAC

claim "by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350

(2012).

      Applying these standards, we affirm substantially for the reasons

expressed in Judge Blaney's thoughtful and thorough written opinion. We agree

with the judge that defendant failed to make a prima facie showing of ineffective

assistance of counsel under the Strickland/Fritz test, and we discern no abuse of

discretion in the denial of defendant's PCR petition without an evidentiary

hearing. Indeed, "[d]efendant must demonstrate a prima facie case for relief

before an evidentiary hearing is required, and the court is not obligated to

conduct an evidentiary hearing to allow defendant to establish a prima facie case

not contained within the allegations in his PCR petition." State v. Bringhurst,

401 N.J. Super. 421, 436-37 (App. Div. 2008).

      We have considered all of defendant's contrary arguments in light of the

record and applicable legal principles, and conclude they are without sufficient

merit to warrant further discussion. R. 2:11-3(e)(2).

      Affirmed.




                                                                         A-5870-17T4
                                      12
