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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2245-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE D. BENAVIDEZ,
Defendant-Appellant. _______________________
Submitted September 21, 2022 – Decided October 4, 2022
Before Judges Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 17-04-0349.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Chief Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Jose D. Benavidez pleaded guilty to first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(1), pursuant to a plea agreement with the
State. The court denied his motion to withdraw his plea and imposed sentence
in accordance with the plea agreement. On his direct appeal, an Excessive
Sentence Oral Argument (ESOA) panel affirmed defendant's sentence and the
order denying his plea withdrawal motion. State v. Benavidez, No. A-4612-18
(App. Div. Jan. 8, 2020).
Defendant filed a post-conviction relief (PCR) petition asserting his
appellate counsel was ineffective by allowing the appeal from the order denying
his plea withdrawal motion to be heard on the ESOA calendar and by failing to
offer argument before the ESOA panel challenging the denial of his plea
withdrawal motion. He appeals from the order denying his PCR petition.
Unpersuaded by his contention the PCR court erred, we affirm.
I.
A grand jury charged defendant in an indictment with first-degree
aggravated assault, N.J.S.A. 2C:14-2(a)(l) (count one); second-degree sexual
assault, N.J.S.A. 2C:14-2(b) (count two); and third-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a)(1) (count three). Under count one,
A-2245-20 2 defendant's sentencing exposure was within a range of between twenty-five
years term and life imprisonment. N.J.S.A. 2C:14-2(a)(7).
Defendant pleaded guilty to first-degree aggravated sexual assault under
count one pursuant to a plea bargain with the State. The State agreed to
recommend an eight-year sentence, which is within the range for a second-
degree offense, N.J.S.A. 2C:43-6(a)(2), subject to the requirements of the No
Early Release Act, N.J.S.A. 2C:43-7.2, Megan's Law, N.J.S.A. 2C:7-1 to -23,
and the conditions of parole supervision for life, N.J.S.A. 2C:43-6.4.
During his plea proceeding, defendant testified that between January 23,
2014, and January 22, 2016, he penetrated the vagina of his wife's six-year-old
granddaughter with his finger. He admitted the penetration occurred "in a sexual
manner" and not for any legitimate purpose, such as cleaning or providing
medical care to the child.
Defendant testified he was not forced or threatened to plead guilty, he did
so of his "own free will," and he was "guilty" of the offense to which he pleaded.
He further testified he "went through all the discovery with [his] lawyer," as
well as the "evidence," and he had sufficient time to do so. Defendant advised
the court he was "satisfied with his lawyer's advice."
A-2245-20 3 Prior to sentencing, defendant moved to withdraw his guilty plea. In his
certification supporting the motion, defendant claimed: plea counsel "refused
to . . . look into" a statement made by the court "that all charges were dismissed";
plea counsel said he "would receive a greater sentence" if he did not plead; he
"felt forced to plead guilty"; plea counsel said "pleading guilty was [defendant's]
only option and the jury will only believe the alleged victim"; plea counsel
advised defendant he "either had to plead guilty or go to trial"; plea counsel did
not review discovery with him and did not assist in the preparation of the case;
and plea counsel "put pressure" on him to plead guilty. Defendant also asserted
he would raise a defense the victim's father "coerced her to make up the[]
allegations against" him if the court allowed him to withdraw his plea and
proceed to trial.
In a detailed opinion from the bench, the court noted defendant pleaded
guilty on the fourth day of jury selection in his trial on the charges. The court
summarized the claims set forth in defendant's supporting certification and
considered defendant's motion under the four-pronged standard established in
State v. Slater, 198 N.J. 145 (2009). More particularly, the court explained
proper consideration of defendant's motion required the weighing and balancing
of the following factors: "(1) whether the defendant has asserted a colorable
A-2245-20 4 claim of innocence; (2) the nature and strength of defendant's reasons for
withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal
would result in unfair prejudice to the State or unfair advantage to the accused."
Id. at 157-58.
The court found defendant failed to assert a colorable claim of innocence,
explaining defendant's claim he would establish at trial the victim's father
coerced her into making the allegations against him constituted a conclusory
assertion untethered to any "credible facts." The court also determined
defendant failed to present any fair or just reasons supporting his plea
withdrawal motion. The court further found defendant's testimony during the
plea proceeding undermined his contrary, conclusory assertions his counsel
pressured him into pleading guilty.
Additionally, the court found no support in the record for defendant's
claim his counsel was ineffective by failing to address an alleged pre-plea
statement by the court that all the charges against him were to be dismissed. The
court explained that it reviewed all the proceedings in the matter, found no such
statement concerning the dismissal of the charges, and observed defendant did
not produce any evidence supporting his claim. The court also reviewed prior
A-2245-20 5 court proceedings during which it was established defendant was provided with
the discovery and he acknowledged he reviewed the discovery with counsel.
The court also concluded the third Slater factor — defendant's plea was
entered pursuant to a plea bargain — weighed against defendant's request to
withdraw his plea. The court observed defendant was fully aware he was
entitled to a trial when he entered his plea because the jury selection process had
begun, and defendant received the benefit of a substantial reduction in his
sentencing exposure by pleading guilty to first-degree aggravated sexual assault
under an agreement providing for second-degree sentencing exposure. The
court also found the State would be prejudiced if the court permitted defendant
to withdraw his plea because the victim-witness was very young, defendant's
entry of the plea offered finality to the victim, and the victim's memory of the
events would have since faded due to her young age at the time of defendant's
conduct.
After determining none of the Slater factors weighed in support of
defendant's withdrawal motion, the court further found defendant failed to
present evidence establishing a prima facie claim of ineffective assistance of his
trial counsel under the standard established in Strickland v. Washington, 466
U.S. 668, 687 (1984), and adopted for application under the New Jersey
A-2245-20 6 constitution in State v. Fritz, 105 N.J. 42, 58 (1987). More particularly, the
court concluded defendant failed to demonstrate his counsel was ineffective and
there is a reasonable probability that but for his counsel's alleged errors, the
result of his trial and plea proceeding would have been different. The court
entered an order denying defendant's plea withdrawal motion and, as noted,
sentenced defendant to an eight-year prison term in accordance with the plea
agreement.
Defendant filed a PCR petition following his sentencing. The court
subsequently dismissed the petition without prejudice to allow defendant to
appeal from his sentence and denial of his plea withdrawal motion. Defendant
appealed from his sentence and from the order denying his motion to withdraw
his guilty plea, and the matter was scheduled on an ESOA calendar in
accordance with Rule 2:9-11. At oral argument, defendant's counsel made a
brief argument in support of defendant's appeal of his sentence, and the panel
thanked defense counsel "for [his] submissions," which the court found "very
helpful."1
1 On appeal, defendant argues his appellate counsel did not make arguments supporting the challenge to the denial of the plea withdrawal motion, but defendant does not include in the record on appeal the "submissions" made by counsel on defendant's behalf that the sentencing panel noted and found "very
A-2245-20 7 In the order issued following oral argument, the ESOA panel explained it
considered the record and argument of counsel, and it rejected defendant's
challenge to his sentence. Benavidez, No. A-4612-18 (slip op. at 1). The panel
also addressed defendant's appeal from the order denying defendant's plea
withdrawal motion, affirming the order and "find[ing] the court did not abuse
its discretion in weighing the factors under" Slater. Ibid.
Defendant filed a pro se PCR petition asserting an ineffective-assistance-
of-counsel claim against his trial counsel. Defendant generally asserted trial
counsel did not properly explain discovery materials, counsel "talked" him into
accepting a plea agreement "under duress of trial," there was insufficient
evidence supporting the charges against him, and the six-year-old victim was
"coerced during the interrogation." In a supplemental certification supporting
the PCR petition, defendant asserted his appellate counsel was ineffective by
failing to present argument before the ESOA panel in support of the appeal from
the order denying the plea withdrawal motion.
helpful." Similarly, in support of defendant's PCR petition, PCR counsel submitted a certification referencing appellate counsel's submission of a "'Sentencing Categories of Excessive Sentence Appeals' (Form)," but that form is not included in the appellate record. See R. 2:6-1(a)(1)(I) (requiring the appendix prepared by the appellant or jointly by the parties include such parts of the record "as are essential to the proper consideration of the issues"). A-2245-20 8 At argument on the PCR petition, defendant's counsel asserted appellate
counsel was ineffective by: allowing defendant's direct appeal to be heard on
the ESOA calendar instead of a plenary calendar; failing to argue before the
ESOA panel that the trial court erred by denying defendant's motion to withdraw
his guilty plea; and failing to raise other cognizable claims on appeal. The PCR
court noted defendant also argued, apparently in his brief in support of his
petition, appellate counsel was ineffective by failing to argue his plea
withdrawal motion should have been granted because defendant was denied his
request to consult with an immigration attorney about the immigration
consequences of his plea, and the trial court erred by denying the PCR petition
without an evidentiary hearing.
The court rejected defendant's claims, finding defendant did not sustain
his burden of demonstrating appellate counsel's performance was deficient. The
court found submission to the ESOA panel of defendant's challenge to the order
denying his plea withdrawal motion did not constitute deficient performance by
appellate counsel because such issues are routinely decided in that manner in
accordance with Rule 2:9-11.
The court also determined defendant failed to show any prejudice
resulting from the submission of the issue to the ESOA panel or from counsel's
A-2245-20 9 failure to make a specific argument addressing the issue at oral argument . The
court reasoned the pre-argument form appellate counsel submitted to the ESOA
panel directly challenged the order denying the plea withdrawal motion, the
ESOA panel had the full record of the proceedings on the plea withdrawal
motion, and the ESOA panel's order addressed the merits of defendant's
challenge to the order. The court further found defendant made no showing that
but for counsel's alleged errors in submitting the issue to the ESOA and not
addressing the issue at oral argument, there is a reasonable probability the result
of the direct appeal would have been different.
The PCR court also rejected defendant's claim appellate counsel should
have argued trial counsel was ineffective by denying defendant's request to
confer with an immigration attorney concerning the immigration consequences
of his plea before entering the plea. The court explained the transcript of the
plea proceeding undermined defendant's contention because it established plea
counsel represented to the court he consulted with defendant's immigration
attorney, and plea counsel directly and correctly advised defendant he would be
deported as a result of his conviction of the crime — first-degree aggravated
sexual assault — to which he agreed to plead guilty. Moreover, during the plea
proceeding, defendant acknowledged he had been informed he would be
A-2245-20 10 deported and understood he would be deported. The PCR court also noted
defendant acknowledged, in the plea form he executed, he was subject to
deportation as a result of his plea and that he had spoken to an immigration
attorney about the consequences of his plea.
The court concluded defendant failed to make any showing his trial
counsel's performance was deficient by allegedly denying defendant an
opportunity to confer with immigration counsel or by misadvising defendant of
the immigration consequences of his plea. The court also determined defendant
failed to make any showing of prejudice based on his counsel's purported errors.
The court further denied defendant's claim he was entitled to an
evidentiary hearing on his ineffective-assistance-of-counsel claims. The court
reasoned defendant was not entitled to an evidentiary hearing because he failed
to establish a prima facie ineffective-assistance-of-counsel claim. The court
entered an order denying the PCR petition.
Defendant appeals from the order, and presents the following arguments:
POINT I
APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT MOVING DEFENDANT'S APPEAL FROM [THE E]SOA CALENDAR TO THE PLENARY CALENDAR AND FOR FAILING TO RAISE ISSUES WHICH PREVENTED THE COURT FROM
A-2245-20 11 ADDRESSING, ON APPEAL, ERRORS WHICH OCCURRED BELOW.
(a) Applicable law.
(b) Appellate counsel was ineffective for allowing defendant's appeal to remain on the sentencing calendar rather than move it to the plenary calendar.
(c) Appellate counsel was ineffective for failing to adequately argue defendant's motion to withdraw his plea on appeal.
(d) Appellate counsel was ineffective for failing to challenge defendant's right to speak to his immigration attorney on issues of deportation before entering a guilty plea.
II.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies
to mixed questions of fact and law. Id. at 420. Where an evidentiary hearing
has not been held, it is within our authority "to conduct a de novo review of both
the factual findings and legal conclusions of the PCR court." Id. at 421. We
apply that standard here.
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee a defendant in a criminal
A-2245-20 12 proceeding the right to the assistance of counsel in his defense. The right to
counsel includes "the right to the effective assistance of counsel." State v. Nash,
212 N.J. 518, 541 (2013) (quoting Strickland, 466 U.S. at 686).
In Strickland, the Court established a two-part standard to determine
whether a defendant has been deprived of the effective assistance of counsel.
Strickland, 466 U.S. at 687. Under the first prong of the Strickland standard, a
petitioner must show counsel's performance was deficient by demonstrating
counsel's handling of the matter "fell below an objective standard of
reasonableness" and "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Id. at 687-88.
Under the second prong of the Strickland standard, a defendant "must
show that the deficient performance prejudiced the defense." Id. at 687. There
must be a "reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." Id. at 694. In the
context of a PCR petition challenging a guilty plea based on the ineffective
assistance of counsel, the second prong is established when the defendant
demonstrates a "reasonable probability that, but for counsel's errors, [the
defendant] would not have pled guilty and would have insisted on going to trial,"
A-2245-20 13 State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting
State v. DiFrisco, 137 N.J. 434, 457 (1994)); see also State v. McDonald, 211
N.J. 4, 30 (2012), and that "a decision to reject the plea bargain would have been
rational under the circumstances," Padilla v. Kentucky, 559 U.S. ____, 176 L.
Ed. 2d 284, 297 (2010).
A petitioner must establish both prongs of the Strickland standard to
obtain a reversal of the challenged conviction. Strickland, 466 U.S. at 687;
Nash, 212 N.J. at 542; Fritz, 105 N.J. at 52. A failure to satisfy either prong of
the Strickland standard requires the denial of a petition for PCR. Strickland,
466 U.S. at 700.
The Strickland standard applies where, as here, a defendant claims
ineffective assistance of appellate counsel. Harris, 181 N.J. at 518. Appellate
counsel will not be found ineffective if counsel's failure to appeal an issue could
not have prejudiced the defendant because the reviewing court would have
found, had the issue been raised on appeal, no error had occurred or any
purported error was harmless. State v. Reyes, 140 N.J. 344, 365 (1995).
Defendant first argues appellate counsel was ineffective by allowing the
appeal from the order denying his plea withdrawal motion to be heard on the
ESOA calendar in accordance with Rule 2:9-11. We observe challenges to
A-2245-20 14 denials of plea withdrawal motions are routinely presented and decided on
ESOA calendars, and we measure the reasonableness of counsel's performance
based on the prevailing professional norms "as of the time of counsel's conduct."
State v. Gaitan, 209 N.J. 339, 350 (2012) (quoting State v. Castagna, 187 N.J.
293, 314 (2006)). Defendant does not point to any part of the ESOA calendaring
process under Rule 2:9-11 that limited his or his counsel's ability to obtain a full
and fair consideration of his challenge to the order denying his plea withdrawal
motion and, as a matter of fact, defendant obtained a disposition on the merits
of his claim from the ESOA panel based on its review of the plea proceedings.
Benavidez, slip op. at 1. Thus, defendant failed to sustain his burden under
Strickland's first prong on his claim appellate counsel was ineffective by
submitting the challenge to the order denying the plea withdrawal motion to the
ESOA panel; defendant did not present any evidence establishing that counsel's
submission of the appeal to an ESOA panel under Rule 2:9-11 either "fell below
an objective standard of reasonableness" or constituted an "error[] so serious
that counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Strickland, 466 U.S. at 687.
Defendant also argues appellate counsel's performance was deficient by
failing either to file a brief or offer oral argument before the ESOA panel
A-2245-20 15 supporting his contention the trial court erred by denying his plea withdrawal
motion. The record shows appellate counsel challenged the court's order
denying the plea withdrawal motion, apparently in the ESOA form referenced
in the trial court record but not included in the record on appeal. Indeed, it is
undisputed appellate counsel challenged the validity of the order denying the
plea withdrawal motion before the ESOA panel, and the panel expressly
addressed the issue and decided it on the merits in the order on defendant's direct
appeal. Benavidez, slip op. at 1.
Defendant's claim he is entitled to PCR because his appellate counsel
failed to offer argument challenging the validity of the order denying the plea
withdrawal motion lacks merit because he did not demonstrate he suffered any
prejudice as a result of counsel's purported error. See State v. Roper, 378 N.J.
Super. 236, 237 (App. Div. 2005) (observing if a legal argument "had no merit,
then defendant would be unable to establish the 'prejudice prong' of the
ineffective assistance of counsel standard established by Strickland"). A
counsel's performance is not deficient by failing to make a meritless argument.
See generally State v. O'Neal, 190 N.J. 601, 619 (2007) (holding "[i]t is not
ineffective assistance of counsel for defense counsel not to file a meritless
motion . . . ."); State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise
A-2245-20 16 unsuccessful legal arguments does not constitute ineffective assistance of
counsel."); State v. Morrison, 215 N.J. Super. 540, 549 (App. Div. 1987) (citing
Jones v. Barnes, 463 U.S. 745 (1983)) (explaining "appellate counsel does not
have a constitutional duty to raise every nonfrivolous issue requested by the
defendant").
For the reasons explained first by the trial court, and then by the PCR
court, we find no merit in defendant's claim he demonstrated an entitlement to
withdraw his guilty plea under the Slater standard. He did not present facts
establishing a colorable claim of innocence, he failed to offer any fair and just
reasons for his withdrawal request, and he entered his plea pursuant to an
advantageous plea bargain. See Slater, 198 N.J. at 157-58. The State was not
required to demonstrate prejudice because defendant failed to establish the other
Slater factors. See id. at 162 (explaining a showing of prejudice is not required
"if a defendant fails to offer proof of other factors in support of the withdrawal
of a plea.").
In sum, the record is devoid of any evidence supporting defendant's plea
withdrawal motion, and defendant failed to proffer any meritorious arguments
based on the Slater factors that appellate counsel might have asserted in support
of the challenge to the order denying his plea withdrawal motion. In that failure,
A-2245-20 17 defendant did not carry his burden under Strickland's second prong of
establishing a reasonable probability that had appellate counsel offered some
argument in support of the challenge to the order denying the plea withdrawal
motion, the result of defendant's direct appeal from the order would have been
different. See Strickland, 466 U.S. at 694. The PCR court correctly denied the
PCR claim on that basis.
Defendant also argues the PCR court erred by rejecting his claim appellate
counsel was ineffective by failing to argue before the ESOA panel that the plea
withdrawal motion should have been granted because defendant trial counsel
denied defendant the opportunity to confer with immigration counsel. The
argument lacks sufficient merit to warrant discussion in a written opinion, R.
2:11-3(e)(2), and we affirm the PCR court's rejection of the argument for the
reasons set forth in its thoughtful and detailed opinion from the bench.
We only add, again, appellate counsel's performance was not deficient
under Strickland's first prong by failing to make a groundless argument plea
counsel did not allow defendant to confer with immigration counsel. Roper, 378
N.J. Super. at 237. The claim is undermined by the record of the plea
proceeding, the PCR court's well-supported and unchallenged findings
defendant had numerous opportunities to confer with immigration counsel prior
A-2245-20 18 to entry of his plea, and defendant's responses to the questions on the plea form
concerning his opportunity to confer with immigration counsel.
Moreover, during the plea proceeding counsel directly, and correctly,
advised defendant that entry of his plea to first-degree aggravated sexual assault
would result in deportation. Defendant does not contend otherwise. Trial
counsel's performance was not constitutionally deficient under Strickland's first
prong by providing correct advice concerning the immigration consequences of
defendant's plea. See Padilla, 559 U.S. at ____, 176 L. Ed. 2d at 295-96
(explaining where "the terms of the relevant immigration statute are succinct,
clear, and explicit in defining the removal consequence[s]," then an attorney is
obliged to be "equally clear"); see also Nuñez-Valdéz, 200 N.J. at 138
(explaining plea counsel's performance is deficient under the first prong of the
Strickland standard where counsel "provides false or misleading information
concerning the deportation consequences of a plea of guilty.") and State v.
Blake, 444 N.J. Super. 285, 296 (App. Div. 2016) (quoting Gaitan, 209 N.J. at
380) (finding counsel's failure "to point out to a noncitizen client that he or she
is pleading to a mandatorily removable offense" "constitutes 'deficient
performance of counsel.'").
A-2245-20 19 The record offered no support for a meritorious argument on defendant's
direct appeal that plea counsel's performance was deficient under Strickland's
first prong based on any alleged failure of plea counsel to offer defendant an
opportunity to confer with immigration counsel. The PCR court correctly
rejected defendant's PCR claim on that basis alone. See Strickland, 466 U.S. at
687 (holding a failure to satisfy either prong of the Strickland standard requires
denial of an ineffective assistance of counsel PCR claim); Nash, 212 N.J at 542
(same).
We also reject defendant's claim appellate counsel should have argued the
trial court erred by denying the plea withdrawal motion based on issues related
to the immigration consequences of his plea for a separate but equally
dispositive reason. The plea withdrawal motion record is bereft of any evidence
that had defendant not allegedly been deprived of an opportunity to confer with
immigration counsel, there is "a reasonable probability that, but for his [plea]
counsel's [purported] error[], [he] would not have pleaded guilty and would have
insisted on going to trial," State v. O'Donnell, 435 N.J. Super. 351, 376 (App.
Div. 2014) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)), and "had he been
properly advised, it would have been rational for him to decline the plea offer
and insist on going to trial and, in fact, that he probably would have done so,"
A-2245-20 20 State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla, 559
U.S. at ____, 176 L. Ed. 2d at 297). Lacking such evidence, and because
defendant was required to make such a showing to satisfy his burden on his plea
withdrawal motion, O'Donnell, 435 N.J. Super. at 376; Maldon, 422 N.J. Super.
at 486, appellate counsel simply could not make a meritorious argument
supporting a challenge to the order denying the plea withdrawal motion. In sum,
appellate counsel's performance was not deficient under Strickland's first prong,
and defendant suffered no prejudice under Strickland's second prong, due to
appellate counsel's failure to make a wholly meritless argument challenging the
order denying defendant's plea withdrawal motion.
Defendant also argues the court erred by denying the PCR petition without
an evidentiary hearing. We reject the argument because an evidentiary hearing
is not required on a PCR petition where defendant does not sustain his burden
of establishing a prima facie ineffective assistance of counsel claim. State v.
Porter, 216 N.J. 343, 355 (2013); R. 3:22-10(b). That is the case here.
We have considered all the arguments presented on defendant's behalf
and, to the extent we have not expressly addressed any of those arguments, they
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
A-2245-20 21 Affirmed.
A-2245-20 22