STATE OF NEW JERSEY v. JOSE MARTINEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3191-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE MARTINEZ,

Defendant-Appellant.

____________________________________

February 8, 2011

 

Submitted January 5, 2011 - Decided

Before Judges Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0904.

 

Law Office of Paul Condon, attorney for appellant (Kathleen M. Theurer, on the brief).

 

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent

(Jason M. Cieri, Assistant Prosecutor, on the brief).

 

PER CURIAM

Defendant Jose Martinez appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

On December 10, 2007, defendant pleaded guilty pursuant to a plea agreement to a single-count indictment charging the second-degree crime of vehicular homicide, N.J.S.A. 2C:11-5a. As a factual basis for his guilty plea, defendant admitted that on December 18, 2006, he drove his vehicle after drinking with friends. He passed through a toll booth and then drove into the wrong lanes and toward oncoming traffic on Interstate Highway 280. His car collided head-on with another vehicle, and a rear passenger in his car was killed. Defendant stipulated that his blood alcohol level at the time of the crash was above the legal limit for driving while intoxicated.

On February 2, 2008, defendant was sentenced to five years' imprisonment, with eighty-five percent of the term to be served before parole and three years of parole supervision under the No Early Release Act (NERA), N.J.S.A.2C:43-7.2. On October 20, 2009, defendant filed the petition for PCR claiming that he did not understand the consequences of his guilty plea because he is Spanish-speaking and his attorney did not adequately advise him about the charge and the terms of the plea agreement. The judge who had taken defendant's guilty plea and imposed sentence heard argument on the PCR petition and denied it without an evidentiary hearing.

On appeal, defendant argues:

POINT I

THE GUILTY PLEA OF JOSE MARTINEZ

SHOULD BE VACATED AS IT WAS NOT

ENTERED KNOWINGLY, INTELLIGENTLY

AND VOLUNTARILY.

 

POINT II

APPELLANT WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL.

 

In his appellate brief, defendant raises several arguments about his attorney's performance at the time of his guilty plea, the crux of which is that he was not correctly advised about the effect of NERA on his sentence and about the potential sentence he faced if he stood trial on the charge.

Our standard of review is plenary on questions of law in a PCR appeal, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. See State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). In addition, the trial court has discretion to determine whether an evidentiary hearing is required to resolve factual issues outside the trial record. See State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). We have reviewed the transcript of the plea and related documents, and we find no merit in defendant's arguments.

Defendant's guilty plea was taken with the aid of an official Spanish interpreter. The judge asked defendant about his understanding of the consequences of his plea, including the sentence that would be recommended by the State and the effect of NERA on that sentence. The following colloquy occurred between the court and defendant:

THE COURT. Do you understand, sir, that at the time that you're sentenced the State will recommend that the court send you to prison for five years?

 

DEFENDANT. Yes.

 

THE COURT. And you understand, sir, insofar as this is a second degree offense, that there is a presumption that you will be sent to prison?

 

DEFENDANT. Yes.

 

THE COURT. And do you understand, sir, insofar as this offense is covered by the No Early Release Act, the law will require that you serve 85 percent of whatever sentence is imposed without eligibility for parole?

 

DEFENDANT. Yes.

 

THE COURT. Do you also understand, sir, that law also requires that upon your release from custody that you be required to undergo three years of parole supervision?

 

DEFENDANT. Yes.

 

THE COURT. And you understand, sir, that if you violate the terms of your parole, even if that occurs after five years from the date of your conviction, you can still be returned to prison?

 

DEFENDANT. Yes.

 

In addition, the plea form signed by defendant stated that he would be ineligible for parole for fifty-one months. Thus, with the aid of an interpreter at the time of his guilty plea, defendant was fully informed that he must serve at least four years and three months in prison and that he must then serve an additional term of three years of parole supervision.

The plea form also correctly informed defendant of the ten-year maximum prison sentence applicable to the second-degree charge of vehicular homicide, not a longer term that he alleges his attorney told him he would face if convicted after a trial.

T

he trial court found that defendant "had a full and complete understanding of the consequences of his plea." It concluded that "[a]s a result, he could not have been prejudiced by his counsel's alleged failure to advise him of the same." The record of the guilty plea supports the court's finding and conclusion. Defendant cannot establish that he was prejudiced by his counsel's alleged ineffective performance, thus entitling him to relief from his conviction and sentence. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Affirmed.