STATE OF NEW JERSEY V. HECTOR TORRES

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5057-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HECTOR TORRES,

Defendant-Appellant.

________________________________________________________________

September 24, 2015

Submitted September 17, 2015 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 87-05-0661.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR). We affirm, essentially for the reasons set forth in a written letter opinion by Judge Rudolph A. Filko.

Defendant pled guilty to first-degree aggravated manslaughter, amended from murder, N.J.S.A.2C:11-4(a), pursuant to a plea agreement in December 1988. Consistent with the terms of the plea agreement, he was sentenced in January 1989 to thirty years with a fifteen-year period of parole ineligibility, consecutive to the sentence he was then serving.1 Defendant appealed, arguing only that his sentence was excessive. An excessive sentencing panel of this court remanded the matter for reconsideration. State v. Torres, No. A-3250-88 (App. Div. June 7, 1990). In 1995, the court resentenced defendant to twenty-eight years with a fourteen-year parole disqualifier, consecutive to his New York sentence. Defendant appealed the sentence as excessive. There is no indication that the panel granted any relief.2

Defendant did not file a PCR petition until June 2013. In his petition, defendant alleged his petition was timely, considering his circumstances, and he was denied the effective assistance of counsel in pretrial preparation by counsel not properly reviewing his case, not communicating with defendant, and coercing defendant into accepting the plea agreement. He also claimed his sentence was illegal. Specifically, in his supporting certification, defendant stated he "never received any documents from his attorney during the trial/plea proceedings," his attorney never "explore[d] insanity or diminished capacity affirmative defense[s]," and his attorney was not aware of statutory amendments increasing his exposure to a lengthier sentence. Finally, defendant argued he presented a prima facie claim of ineffective assistance of trial counsel to warrant an evidentiary hearing. He did not deny, however, committing the underlying crime.

Judge Filko considered defendant's petition, finding that he "presented some compelling evidence" to justify the late filing. However, after considering the merits, the judge denied defendant's petition without a hearing, setting forth his reasons in a comprehensive written letter opinion.

In this appeal, defendant raises the following issue

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS ENTITLED TO WITHDRAW HIS GUILTY PLEA ON THE BASIS THAT HE HAD FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL, RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN FREELY, KNOWINGLY, AND VOLUNTARILY ENTERED.

We are not persuaded by defendant's argument and affirm, essentially for the reasons set forth by Judge Filko. We agree that defendant failed to prove a prima facie case of ineffective assistance of counsel pursuant to the standard established in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J.42 (l987), and that, as a result, no evidentiary hearing was required. SeeState v.Preciose, 129 N.J.451, 462-63 (1992). We also agree defendant's sentence was not illegal for the reasons stated by Judge Filko.

Affirmed.

1 Defendant was serving a twenty-eight year term of imprisonment in New York for a prior conviction since 1986. He was released into New Jersey's custody in 2012.

2 There is no record of the panel's disposition included in either party's appendix.