STATE OF NEW JERSEY v. ANYELO MARTINEZ

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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 only binding 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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANYELO MARTINEZ,

Defendant-Appellant.

________________________________

October 20, 2016

Submitted October 11, 2016 Decided

Before Judges Nugent and Currier.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-03-0296.

Andril & Espinosa, LLC, attorneys for appellant (Antonio R. Espinosa, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Bryan S. Tiscia, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anyelo Martinez appeals from a March 23, 2015 Law Division order denying both his petition for post-conviction relief (PCR) and his motion to withdraw his guilty plea. He presents these arguments

POINT ONE: Martinez should be allowed to vacate his plea in the interest of justice.

POINT TWO: THE REQUEST FOR POST CONVICTION RELIEF IS . . . AN INTRICATE PART OF THE NEED TO VACATE THE PLEA.

We affirm.

On August 27, 2012, defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), for sexually penetrating a child less than thirteen years old, and to second-degree sexual assault, N.J.S.A. 2C:14-2(b), for having sexual contact with a child less than thirteen years old when he was at least four years older than the child. In exchange for the plea, the State agreed to recommend: consecutive sentences of fifteen years on the aggravated sexual assault offense and five years on the sexual assault offense, both prison terms subject to the No Early Release Act, N.J.S.A. 2C:43-7.2; parole supervision for life, N.J.S.A. 2C:43-6.4; and registration under Megan's Law, N.J.S.A. 2C:7-1 to -5.1 The court thereafter sentenced defendant in accordance with the plea agreement, except that the court imposed a consecutive term of four years rather than five years on the sexual assault charge. The court ordered that defendant serve his sentence at the Adult Diagnostic and Treatment Center in accordance with N.J.S.A. 2C:47-3(b).

Defendant appealed his sentence, which we affirmed on an excessive sentence oral argument calendar. State v. Martinez, No. A-2748-12 (App. Div. July 31, 2013). The Supreme Court denied certification. State v. Martinez, 217 N.J. 293 (2014).

During the month following the Supreme Court's denial of certification, defendant filed a PCR petition, and six months after filing the PCR petition, he filed a motion to vacate his guilty plea. In support of his PCR petition, defendant averred his attorney met with him only twice before the plea and did not properly advise him of his rights, as evidenced by the adjournment of the plea proceedings so defendant could view the DVD of the victim's statement to authorities. Defendant also averred his attorney never explained the elements of aggravated sexual assault and sexual assault. Additionally, defendant argued that because he had been medicated for depression and other mental issues, when he met with counsel he did not have the clarity of mind to understand the elements of the offenses. Lastly, defendant claimed he never penetrated the child, but only "touched the outside of [her] vagina." He maintained he was only "playing and tickling the victim," which made him feel good as a person but did not give him sexual gratification. Had he understood the legal meaning of sexual penetration and the difference between personal and sexual gratification, he would not have pled guilty to aggravated sexual assault and sexual assault.

In support of his motion to withdraw his guilty plea, defendant reiterated that he "never committed an act of sexual penetration" and therefore was not guilty of aggravated sexual assault, and he "did not commit the act of touching [the minor child's] intimate parts," but only tickled her, and therefore was not guilty of sexual assault. He insisted there was no legal or factual basis for his pleas.

Following oral argument, Judge Stuart Peim issued a March 23, 2015 opinion and order. Judge Peim recounted in detail the guilty plea proceedings, quoting at length those parts of the plea colloquy demonstrating defendant knowingly, intelligently, and voluntarily entered the plea, including defendant's admissions to penetrating the victim and touching her for his sexual gratification. After summarizing the parties' arguments, Judge Peim analyzed defendant's contentions under the legal principles announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987), applicable to PCR, and the legal principles announced in State v. Slater, 198 N.J. 145 (2009), applicable to an application to withdraw a guilty plea. The judge concluded defendant had established neither a prima facie case of ineffective assistance of counsel nor sufficient grounds to withdraw his plea.

On appeal, defendant raises essentially the same arguments he raised before the trial court in his PCR petition and motion to withdraw his guilty plea. We affirm, substantially for the reasons given by Judge Peim in his thorough and thoughtful opinion. Defendant's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 The State also agreed to dismiss the remaining three counts of the indictment.