STATE OF NEW JERSEY v. DANIEL V. HERNANDO

NOT FOR PUBLICATION WITHOUT THE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-5038-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DANIEL V. HERNANDO, a/k/a
DANNY HERNANDO TINK,

     Defendant-Appellant.
___________________________

                   Submitted January 12, 2021 – Decided February 1, 2021

                   Before Judges Mawla and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hunterdon County, Indictment Nos. 10-12-
                   0452 and 11-05-0166.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Kathryn Sylvester, Deputy Public Defender,
                   of counsel and on the brief).

                   Michael J. Williams, Acting Hunterdon County
                   Prosecutor, attorney for respondent (Jeffrey L.
                   Weinstein, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, on the brief).
PER CURIAM

      Defendant Daniel V. Hernando appeals from a May 31, 2019 Law

Division order dismissing his petition for post-conviction relief (PCR) with

prejudice. We reverse and remand for further proceedings.

                                      I.

      Defendant was born in Uruguay and became a United States permanent

resident. On January 16, 2009, he pled guilty under Indictment No. 08-10-0407

to third-degree conspiracy to commit burglary and a petty disorderly persons

offense, and was sentenced to a concurrent two-year probationary term.

Defendant subsequently pled guilty to a violation of probation and was

sentenced to an aggregate four-year prison term.

      On December 16, 2010, defendant was charged under Indictment No. 10-

12-0452 with two counts of third-degree possession of a controlled substance

(CDS), one count of fourth-degree unlawful possession of a weapon, and one

count of fourth-degree possession of a CDS with intent to distribute.     On

December 21, 2010, the Department of Homeland Security filed a notice for

defendant to appear for removal proceedings. An Immigration and Customs

Enforcement (ICE) detainer was also lodged against him.




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      On May 19, 2011, defendant was charged under Indictment No. 11-05-

0166 with three counts of third-degree forgery, one count of fourth-degree theft

by deception, and one count of third-degree burglary.         On June 16, 2011,

defendant entered a negotiated plea under Indictment Nos. 452 1 and 166 to one

count of third-degree possession of CDS, one count of fourth-degree possession

with intent to distribute, and one count of third-degree forgery.

      In the accompanying plea form, defendant acknowledged in question

number seventeen that: 1) he was not a citizen of the United States; 2) he "may

be deported by virtue of [his] plea of guilty"; 3) "if [his] plea of guilty is to a

crime considered an 'aggravated felony' under Federal law [he would] be subject

to deportation/removal"; and 4) "[he had] the right to seek legal advice on [his]

immigration status prior to entering a plea of guilty." Defendant also stated that

he did not have any questions concerning the plea. On January 3, 2012, a

judgment of conviction (JOC) was entered against defendant which sentenced

him in accordance with his plea to a four-year prison term concurrent with his

existing term of incarceration. 2



1
   For ease of reference we refer only to the last three digits of the indictment
numbers.
2
    The record does not contain a copy of the January 3, 2012 sentencing
transcript.
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      On December 20, 2013, defendant filed a PCR petition related to his

conviction and sentence under Indictment No. 407 and his subsequent violation

of probation. Defendant alleged that "but for the misinformation he received

from his trial counsel with regard to the immigration consequences of his guilty

plea, he would not have entered a guilty plea on the original charges." Defendant

further maintained that "that no one explained to him the effect that the plea and

subsequent sentence would have on his status" when he entered the plea for

violation of probation.

      On March 31, 2016, the PCR judge granted an evidentiary hearing. In her

accompanying written decision, the judge found that defendant had established

"a prima facie case that his counsel gave material mis-advice . . . regarding his

immigration status and that advice had subsequent material consequences after

pleading guilty and being sentenced on his [violation of probation]." The judge

further concluded that "[t]here [was] circumstantial evidence that defendant

would have viewed deportation as a substantial consequence and that he would

accept the risk of trial in return for the prospect of acquittal and the ability to

remain in the United States."

      On April 21, 2016, the PCR judge granted defendant's petition for post-

conviction relief and vacated his sentence under Indictment No. 407 and


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subsequent violation of probation. Defendant later agreed to plead guilty to

criminal trespass and was sentenced to 180 days in county jail and was awarded

180 days of jail credit.

      On January 3, 2017, defendant filed a pro-se PCR petition with an

accompanying certification related to the January 3, 2012 JOC for Indictment

Nos. 452 and 166. Defendant certified that his attorney incorrectly told him that

"since [he] had a previous deportable conviction, it didn't make any difference

[if he] accepted another deportable conviction." Defendant also attested that his

attorney failed to inform him that his first sentence was appealable under Rule

3:22. Defendant further stated he voluntarily left the country for his native

Uruguay.

      The matter was assigned to the same PCR judge for disposition. On March

10, 2017, the PCR judge issued an order of assignment of counsel in accordance

with Rule 3:22-6A. On March 16, 2018, at the parties' request, the PCR judge

issued an order dismissing defendant's petition for post-conviction relief

"without prejudice for a period of one year." The order also provided that if

defendant decided "to refile his [m]otion for [p]ost-[c]onviction [r]elief within

one year from the date of this [o]rder, the original filing date . . . will apply."




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      At some point thereafter, defendant was assigned new counsel who

requested an extension from the March 16, 2018 order to file an amended

petition and a briefing schedule due to his inability to maintain contact with

defendant as he resided in Uruguay. On March 6, 2019, the PCR judge granted

defendant's counsel's request and issued an order requiring defendant to file any

amended petition by April 30, 2019.

      Defendant failed to file an amended petition by April 30, 2019.

Nonetheless, with the State's consent, the court granted another extension to

May 30, 2019.      Defense counsel again was apparently unable to contact

defendant and subsequently requested "that the petition be withdrawn, resulting

in a dismissal without prejudice, so that if [defendant] was in touch with counsel

or the Office of the Public Defender, his first PCR petition could be refiled."

The State, however, objected and on May 31, 2019, the PCR judge issued an

order dismissing defendant's PCR petition with prejudice and explained:

            The court having extended [defendant's] time to file
            from April 30, 2019 to May 30, 2019, with prosecutor
            consent; the court having considered [defendant's]
            counsel's request to withdraw the petition without
            prejudice; the state objecting to same; the court having
            considered this court's order dated March 16, 2018,
            previously dismissing [defendant's] petition without
            prejudice and allowing [defendant] an additional year
            to file, with prosecutor consent; the court finding that
            [defendant] has not shown excusable neglect pursuant

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                                        6
            to [Rule] 3:22-12(a)(1)(A); [Defendant] having been
            unable to be located by counsel, with a last known
            address in Uruguay; the absence of an amended petition
            pursuant to [Rule] 3:22-6A(3); and for good cause
            shown.

                                     II.

      On appeal, defendant presents the following arguments for our

consideration.

            I. AS PETITIONER'S PCR FILING IS TIMELY, NO
               EXCUSABLE     NEGLECT     SHOWING      IS
               REQUIRED.

            II. THE COURT ABUSED ITS DISCRETION BY
                DISMISSING   [DEFENDANT'S]    POST
                CONVICTION  RELIEF  PETITION  WITH
                PREJUDICE.

      A claim for ineffective assistance of counsel must satisfy the two-part test

pronounced in Strickland v. Washington,  466 U.S. 668 (1984), and State v. Fritz,

 105 N.J. 42 (1987), by demonstrating that "counsel's performance was

deficient," that is, "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Strickland,  466 U.S.  at 687; Fritz,  105 N.J. at 58. This test extends to appellate

counsel as well. State v. Loftin,  191 N.J. 172, 197-98 (2007).

      The first prong requires a showing that "counsel's representation fell

below an objective standard of reasonableness." Strickland,  466 U.S.  at 688. A

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defendant, however, must overcome a strong presumption that counsel rendered

reasonable professional assistance. Id. at 689. "The test is not whether defense

counsel could have done better, but whether he met the constitutional threshold

for effectiveness." State v. Nash,  212 N.J. 518, 543 (2013). Further, the failure

to raise unsuccessful legal arguments does not constitute ineffective assistance

of counsel. State v. Worlock,  117 N.J. 596, 625 (1990); Strickland,  466 U.S.  at
 688.

       Under the second prong, a defendant must demonstrate that his counsel's

errors prejudiced the defense such as to deprive defendant of a fair and reliable

outcome. Strickland,  466 U.S.  at 687. To prove this element, a defendant must

demonstrate "a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Id. at 694.

       Rule 3:22-12(a)(1) provides "no petition shall be filed pursuant to this rule

more than [five] years after the date of entry pursuant to Rule 3:21-5 of the

judgment of conviction that is being challenged . . . ." See also State v. Riley,

 216 N.J. Super. 383, 389 (App. Div. 1987) (noting that the five-year period for

filing commences with the entry of the judgment of conviction). "[A] court may

relax the time bar if the defendant alleges facts demonstrating that the delay was

due to the defendant's excusable neglect or if the 'interests of justice' demand


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it." State v. Milne,  178 N.J. 486, 492 (2004) (quoting State v. Goodwin,  173 N.J. 583, 594 (2002)); see also Rule 3:22-12(a)(1)(A).

      Accordingly, "[t]he time bar should be relaxed only 'under exceptional

circumstances' because '[a]s time passes, justice becomes more elusive and the

necessity for preserving finality and certainty of judgments increases.'"

Goodwin,  173 N.J. at 594 (quoting State v. Afanador,  151 N.J. 41, 52 (1997)).

Further, "'[a]bsent compelling, extenuating circumstances, the burden to justify

filing a petition after the five-year period will increase with the extent of the

delay.'" Milne,  178 N.J. at 492 (2004) (quoting Afandor,  151 N.J. at 52).

      We agree with defendant that the PCR court erred in dismissing the case

with prejudice as untimely. As noted, defendant filed a timely PCR petition on

January 3, 2017, which was within five years of the JOC for Indictment Nos.

452 and 166, a point the State concedes. In his petition, defendant certified that

his counsel was ineffective because he improperly informed defendant that he

would be deported regardless of whether or not he accepted a plea bargain, and

that counsel did not tell defendant that his first sentence was appealable under

Rule 3:22. Further, nothing in the record before us indicates that the original




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                                        9
petition was incognizable or that defendant's counsel informed the PCR court

that it contained any deficiencies. R. 3:22-6A(3).3

      We acknowledge that the parties consented to dismiss defendant's petition

without prejudice for a period of one year, and that defendant failed to comply

with the time deadlines in the March 16, 2018 and March 6, 2019 orders. We

also understand, however, that defendant is in contact with his appellate counsel

and is prepared to prosecute the petition.

      Under the circumstances here, where: 1) a timely petition was filed, 2)

defendant is prepared to prosecute the petition, and 3) the PCR court determined

defendant received ineffective assistance of counsel with respect to an earlier

petition based on similar grounds as alleged here, we conclude the appropriate

course is to remand the matter for the PCR court to address the merits of

defendant's claims. See State v. Odom,  113 N.J. Super. 186, 189 (App. Div.

1971) (noting that "[p]etitions for post-conviction relief cannot be disposed of

out of hand"). On remand, the court shall address the claims in defendant's


 3 Rule 3:22-6A(3) provides in part: "[w]here the order of assignment sets forth
reasons that the petition is not cognizable . . . or the Office of the Public
Defender determines that such deficiencies exist and so notifies the court, the
attorney assigned to represent the defendant shall, within 120 days of
assignment, file an amended petition or new application that is cognizable under
[Rule] 3:22-2 and which meets the requirements contained in [Rule] 3:22-
8 . . . ."
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                                        10 January 3, 2012 petition and certification under the Strickland test.4 Nothing in

our opinion should be construed as suggesting our view on the outcome of the

remanded proceedings.

      Reversed and remanded for further proceedings in conformity with this

opinion. We do not retain jurisdiction.




4
  We note in addition to concluding defendant's petition was untimely, the PCR
court in its May 31, 2019 order also determined that defendant failed to meet
the excusable neglect standard of Rule 3:22-12(a)(1)(A). The PCR court,
however, failed to provide the factual or legal bases for that determination
contrary to Rule 1:7-4. As we have concluded the PCR court should address the
matter as a timely-filed petition, we do not deem it necessary for the PCR court
to explain further its ruling on the excusable neglect issue.
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