STATE OF NEW JERSEY v. WILLIAM P. JIMBO-AUCAPINA

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                                NOT FOR PUBLICATION WITHOUT THE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 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-0411-19

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

WILLIAM P. JIMBO-AUCAPINA,
a/k/a WILLIAM PATRICIO
ACUAPINA,

     Defendant-Respondent.
______________________________

                   Submitted January 25, 2021 – Decided February 10, 2021

                   Before Judges Messano and Hoffman.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Indictment No. 15-06-0632.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Frank M. Gennaro, Designated Counsel, of
                   counsel and on the brief).

                   Fredric M. Knapp, Morris County Prosecutor, attorney
                   for respondent (Paula Jordao, Assistant Prosecutor, on
                   the brief).

PER CURIAM
      Defendant William Jimbo-Aucapina appeals the denial of his petition for

post-conviction relief (PCR) without an evidentiary hearing. Defendant pled

guilty to second-degree aggravated assault,  N.J.S.A. 2C:12-1(b)(1) (causing or

attempting to cause serious bodily injury), and the lesser-included offense of

third-degree endangering the welfare of a child,  N.J.S.A. 2C:24-4(a)(2).

Defendant admitted under oath repeatedly stabbing his ex-wife, including after

their ten-year-old daughter walked into the room. In accordance with the plea

bargain, the judge sentenced defendant to a seven-year term of imprisonment on

the aggravated assault, subject to the No Early Release Act,  N.J.S.A. 2C:43-7.2,

and a consecutive three-year term of imprisonment on the endangering

conviction.

      With the assistance of appointed counsel, defendant filed a timely PCR

petition alleging ineffective assistance of plea counsel. 1 Specifically, stated he

"did not speak English well at all," and he certified that plea counsel only spoke

to him three times prior to the guilty plea and was accompanied only once by a

Spanish interpreter. Although counsel supplied defendant with some of the

discovery, defendant did not read or understand English and plea counsel never


1
  In his pro se petition, defendant said that he would be deported to Ecuador
upon completion of his sentence, and he only sought a sentence reduction so he
could be returned to his "home country" sooner.
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reviewed discovery with him. Defendant asserted counsel never told him the

plea bargain included consecutive sentences, and defendant understood that the

prosecutor had offered a lesser sentence recommendation of six years'

imprisonment.

      Judge David H. Ironson, who was not the plea or sentencing judge,

considered oral argument on the petition. In a comprehensive oral opinion,

Judge Ironson reviewed the relevant case law, in particular the two-prong test

for evaluating claims of ineffective assistance of counsel formulated in

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

Supreme Court in State v. Fritz,  105 N.J. 42, 58 (1987).

      The judge noted that a certified Spanish interpreter translated for

defendant at the time of his guilty plea. At that time, under oath, defendant

acknowledged reviewing the plea form with his attorney and the interpreter.

Judge Ironson reviewed in detail the plea proceedings, including the plea judge's

explicit explanation to defendant that the State would recommend the court

impose consecutive sentences. He further noted the plea judge told defendant

"the State will recommend a total of [ten] years in New Jersey [S]tate

[P]rison . . . ." Judge Ironson concluded that "viewing these facts in a light most

favorable to the defendant, the proofs fail to establish that . . . defense counsel's


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                                         3
representation was deficient." Judge Ironson also concluded defendant failed to

prove the second prong of the Strickland/Fritz test, i.e., that but for counsel's

deficient performance the result of the proceedings would have been different.

      Before us, defendant contends he demonstrated a prima facie case of

ineffective assistance of counsel because his attorney failed to review all the

discovery and failed to use an interpreter when discussing the plea bargain. We

disagree and affirm substantially for the reasons expressed by Judge Ironson.

We add only the following brief remarks.

      To establish a viable claim of ineffective assistance of counsel (IAC), a

defendant must show "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz,  105 N.J. at 52 (quoting Strickland,  466 U.S. at 687). Additionally, a defendant must

prove he suffered prejudice due to counsel's deficient performance. Strickland,

 466 U.S.  at 687. "In the specific context of showing prejudice after having

entered a guilty plea, a defendant must prove 'that there is a reasonable

probability that, but for counsel's errors, [he or she] would not have pled guilty

and would have insisted on going to trial.'" State v. Gaitan,  209 N.J. 339, 351

(2012) (alteration in original) (quoting State v. Nuñez-Valdéz,  200 N.J. 129, 139

(2009)). Our rules anticipate the need to hold an evidentiary hearing on IAC


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                                        4
claims "only upon the establishment of a prima facie case in support of post -

conviction relief[.]" R. 3:22-10(b).

      Simply put, there is no evidence supporting defendant's bald assertions

that trial counsel failed to communicate with him or review discovery. See State

v. Porter,  216 N.J. 343, 355 (2013) (a defendant's PCR petition must contain

"specific facts and evidence supporting his allegations"). As Judge Ironson

aptly found, the transcript of the plea proceedings belies any support for

defendant's other claims of ineffective assistance of counsel. Lastly, defendant

never asserted in either his pro se or counsel-assisted certification that but for

counsel's errors, he would not have pled guilty. Nunez-Valdez,  200 N.J. at 139

(citing State v. DiFrisco,  137 N.J. 434, 457 (1994)).

      Affirmed.




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