Opinion
DOCKET NO. A-3344-12T1
09-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JORGE M. HERNANDEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Koblitz. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 10-06-00652. Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Jorge M. Hernandez appeals from a December 20, 2012 order denying his petition for post-conviction relief (PCR). We affirm for the reasons stated by Judge Thomas V. Manahan in his written opinion issued with the order.
The facts and procedural history are set forth at length in Judge Manahan's opinion and need not be repeated here in detail. In summary, defendant pled guilty to one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), in return for the State's agreement to recommend a sentence of fifteen years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant's attorney would be permitted to argue for a ten-year term instead.
Defendant was repeatedly advised, by his attorney and by Judge Manahan, who was then the trial judge, that there was no guarantee he would receive a ten-year term at sentencing. Defendant was given two opportunities to withdraw his guilty plea after he expressed concern about the potential sentence. However, he decided to go through with the guilty plea. After weighing the mitigating and aggravating factors, Judge Manahan imposed a fifteen-year term.
We affirmed the sentence on an Excessive Sentence Oral Argument calendar. State v. Hernandez, No. A-005525-10 (App. Div. Nov. 21, 2011). Defendant then filed a PCR petition, contending that his trial counsel misled him into believing he would receive a ten-year sentence and was ineffective in failing to raise additional mitigating factors at sentencing. He also argued that his appellate counsel was ineffective in failing to raise those issues on the direct appeal. Judge Manahan found no merit in any of those arguments, concluding that defendant was amply advised of the potential sentence, and defendant failed to demonstrate that the alleged mitigating factors would have made a difference to the sentencing decision.
On this appeal, defendant raises the following point for our consideration:
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
Having reviewed the record, we conclude that defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). We add only that defendant was not entitled to an evidentiary hearing because he did not present a prima facie case that his trial or appellate attorneys rendered ineffective assistance. State v. Preciose, 129 N.J. 451, 462-63 (1992). As previously noted, we affirm for the reasons stated in Judge Manahan's opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION