STATE OF NEW JERSEY v. SAUL HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4253-08T44253-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAUL HERNANDEZ,

Defendant-Appellant.

_____________________________________________

 

Submitted May 17, 2010 - Decided

Before Judges Rodr guez and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-06-0820.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jill Greenberg Kail, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Saul Hernandez appeals from the December 4, 2008 denial of his first petition for post-conviction relief (PCR). We affirm.

In August 2004, defendant entered a negotiated plea of guilty to first degree murder, N.J.S.A. 2C:11-3. In exchange, the State agreed to dismiss other charges arising from the same episode and to recommend that prison term not to exceed thirty-years with a thirty-year parole disqualifier. Judge Phillip Lewis Paley imposed the recommended sentence. On direct appeal, we affirmed defendant's sentence at an Excessive Sentence Oral Argument calendar. State v. Saul Hernandez, No. A-4773-04T4 (App. Div. Mar. 9, 2006), certif. denied, 188 N.J. 492 (2006).

In March 2009, defendant filed pro se his first PCR petition, raising a claim of ineffective assistance of plea counsel. Counsel filed an amended petition. The nub of the petition was that plea counsel did not fully explain the terms of the sentence recommendation. Judge Dennis Nieves denied the petition and defendant's request for an evidentiary hearing.

On appeal, defendant contends:

THE ORDER DENYING DEFENDANT'S MOTION FOR [PCR] MUST BE REVERSED BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PLEA COUNSEL.

DEFENDANT WAS ENTITLED TO [PCR] BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL, AND THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING.

We reject these contentions and agree with Judge Nieves that the petition should be denied.

Defendant has not shown either prong of the Strickland v. Washington standard for determining ineffective assistance of counsel. This standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant's allegation that he did not receive accurate information about his exposure and the sentence recommendation is belied by the record. Although defendant claims that he needed an interpreter, the plea transcript indicates that he understood all aspects of the plea. He did not show signs of confusion or lack of understanding. He first raised this issue almost five years after the entry of the plea and sentence.

We also disagree with the argument that the judge should have granted an evidentiary hearing. Defendant has failed to meet the threshold for an evidentiary hearing. When issues of defective performance of counsel are raised that involve disputed facts outside the record, the appropriate procedure for their resolution is to hold a hearing if a prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 460-61 (1992). Here, there has been no such showing. Moreover, the alleged disputed performance by plea counsel can be scrutinized based on the plea hearing record.

 
Affirmed.

466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984).

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A-4253-08T4

June 1, 2010