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(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4253-08T44253-08T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAUL HERNANDEZ,
Defendant-Appellant.
Submitted May 17, 2010 - Decided
Before Judges Rodríguez and Reisner.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,
Indictment No. 03-06-0820.
Yvonne Smith Segars, Public Defender, attorney for appellant (Jill Greenberg Kail,
Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Saul Hernandez appeals from the December 4, 2008 denial of his first petition for post-conviction relief
(PCR). We affirm.
In August 2004, defendant entered a negotiated plea of guilty to first degree murder, N.J.S.A. 2C:11-3. In exchange,
the State agreed to dismiss other charges arising from the same episode and to recommend that prison term not to
exceed thirty-years with a thirty-year parole disqualifier. Judge Phillip Lewis Paley imposed the recommended
sentence. On direct appeal, we affirmed defendant's sentence at an Excessive Sentence Oral Argument calendar.
State v. Saul Hernandez, No. A-4773-04T4 (App. Div. Mar. 9, 2006), certif. denied, 188 N.J. 492 (2006).
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a4253-08.opn.html
In March 2009, defendant filed pro se his first PCR petition, raising a claim of ineffective assistance of plea counsel.
Counsel filed an amended petition. The nub of the petition was that plea counsel did not fully explain the terms of
the sentence recommendation. Judge Dennis Nieves denied the petition and defendant's request for an evidentiary
hearing.
On appeal, defendant contends:
THE ORDER DENYING DEFENDANT'S MOTION FOR [PCR] MUST BE REVERSED BECAUSE
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PLEA COUNSEL.
DEFENDANT WAS ENTITLED TO [PCR] BASED ON THE REMAINING ARGUMENTS
ADVANCED BY DEFENDANT AND DEFENSE COUNSEL, AND THE MATTER SHOULD BE
REMANDED FOR AN EVIDENTIARY HEARING.
We reject these contentions and agree with Judge Nieves that the petition should be denied.
Defendant has not shown either prong of the Strickland v. Washington standard for determining ineffective
assistance of counsel. This standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987). Defendant's allegation that he did not receive accurate information about his exposure and the sentence
recommendation is belied by the record. Although defendant claims that he needed an interpreter, the plea
transcript indicates that he understood all aspects of the plea. He did not show signs of confusion or lack of
understanding. He first raised this issue almost five years after the entry of the plea and sentence.
We also disagree with the argument that the judge should have granted an evidentiary hearing. Defendant has
failed to meet the threshold for an evidentiary hearing. When issues of defective performance of counsel are raised
that involve disputed facts outside the record, the appropriate procedure for their resolution is to hold a hearing if a
prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 460-61 (1992). Here,
there has been no such showing. Moreover, the alleged disputed performance by plea counsel can be scrutinized
based on the plea hearing record.
Affirmed.
466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed.2d 674, 692 (1984).
(continued)
(continued)
4
A-4253-08T4
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June 1, 2010
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