STATE OF NEW JERSEY VS. HECTOR C. CORDERO (13-08-2512, CAMDEN COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-3662-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

HECTOR C. CORDERO,

     Defendant-Appellant.
__________________________

                   Submitted November 2, 2020 – Decided November 17, 2020

                   Before Judges Fasciale and Rothstadt.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 13-08-2512.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Howard E. Drucks, Designated Counsel, on
                   the brief).

                   Jill S. Mayer, Acting Camden County Prosecutor,
                   attorney for respondent (Maura Murphy Sullivan,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      After pleading guilty to first-degree aggravated manslaughter, defendant

appeals from a February 8, 2019 order denying his petition for post-conviction

relief (PCR).   Defendant maintains his plea counsel rendered ineffective

assistance by failing to make evidence-based arguments related to mitigation,

competency, and capacity. Judge Gwendolyn Blue found defendant knowingly

and voluntarily pled guilty, entered the order under review, and rendered a

comprehensive oral opinion.

      On appeal, defendant argues:

            POINT I

            THE PCR [JUDGE] ERRED IN DENYING
            DEFENDANT'S PETITION FOR [PCR] DESPITE
            INEFFECTIVE ASSISTANCE OF [PLEA] COUNSEL
            AS ESTABLISHED PURSUANT TO THE U.S.
            CONST. AMEND. VI AND BY THE N.J. CONST.
            ART. I, ¶ 10. (Raised Below).

            POINT II

            THE PCR [JUDGE] ERRED IN NOT RULING THAT
            [PLEA] COUNSEL'S FAILURE T[O] MAKE
            EVIDENCE-BASED ARGUMENTS RELEVANT TO
            MITIGATION   CONSTITUTED      INEFFECTIVE
            ASSISTANCE OF COUNSEL. (Raised Below).

            POINT III

            THE PCR [JUDGE] ERRED IN NOT RULING THAT
            [PLEA] COUNSEL'S FAILURE TO RAISE
            EVIDENCE-BASED ARGUMENTS REGARDING

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                                      2
           COMPETENCY CONSTITUTED INEFFECTIVE
           ASSISTANCE OF [PLEA] COUNSEL. (Raised
           Below).

           POINT IV

           THE [PCR JUDGE] ERRED IN NOT RULING THAT
           [PLEA] COUNSEL'S FAILURE TO DEVELOP
           CAPACITY     ARGUMENTS          BASED ON
           DEFENDANT'S MEDICAL RECORDS DID NOT
           CONSTITUTE INEFFECTIVE ASSISTANCE OF
           [PLEA] COUNSEL. (Raised Below).

           POINT V

           THE    PCR     [JUDGE]     ERRED      IN
           MISCHARACTERIZING THE     RECORD    AND
           DEFENDANT'S ARGUMENTS.

           POINT VI

           THE PCR [JUDGE] ERRED IN NOT RULING THAT
           THE    ERRORS     OF    [PLEA]  COUNSEL
           CUMULATIVELY CONSTITUTED INEFFECTIVE
           ASSISTANCE OF [PLEA] COUNSEL.

           POINT VII

           THE [PCR JUDGE] ERRED IN REFUSING TO
           GRANT DEFENDANT'S REQUEST FOR AN
           EVIDENTIARY      HEARING      REGARDING
           DEFENDANT'S CLAIMS OF INEFFECTIVE
           ASSISTANCE OF [PLEA] COUNSEL.

We disagree and affirm.




                                                      A-3662-18T1
                              3
      Defendant's ineffective assistance of counsel claims are akin to an

excessive sentence challenge and are substantially equivalent to claims raised—

or that could have been raised—on direct appeal and are therefore barred under

Rule 3:22-4(a).   Even if they were not—which is not the case—they are

substantively meritless.   Defendant failed to satisfy the two-pronged test

enumerated in Strickland v. Washington, 

466 U.S. 668

, 687 (1984), which our

Supreme Court adopted in State v. Fritz, 

105 N.J. 42

, 58 (1987). We will address

defendant's procedural and substantive contentions.

                                       I.

      It is well-settled that PCR proceedings are not a substitute for a direct

appeal. R. 3:22-3; State v. Afanador, 

151 N.J. 41

, 50 (1997). "Ordinarily, PCR

enables a defendant to challenge the legality of a sentence or final judgment of

conviction by presenting contentions that could not be raised on direct appeal."

Id. at 49

(citing State v. McQuaid, 

147 N.J. 464

, 482 (1997)). "Under Rule 3:22-

5, prior adjudication of an issue, including a decision on direct appeal, will

ordinarily bar a subsequent [PCR] hearing on the same basis."

Id. at 51.

PCR

is precluded when the issue is identical or substantially equivalent to the issue

already adjudicated on the merits.

Ibid. (citing McQuaid, 147

N.J. at 484).

"PCR cannot be used to circumvent issues that could have, but were not raised


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                                       4
on appeal, unless the circumstances fall within one of the exceptions."

Id. at 50

(citing R. 3:22-4). Rule 3:22-4(a) provides:

            Any ground for relief not raised in the proceedings
            resulting in the conviction, or in a post-conviction
            proceeding brought and decided prior to the adoption
            of this rule, or in any appeal taken in any such
            proceedings is barred from assertion in a proceeding
            under this rule unless the court on motion or at the
            hearing finds:

                  (1) that the ground for relief not previously
                  asserted could not reasonably have been
                  raised in any prior proceeding; or

                  (2) that the enforcement of the bar to
                  preclude claims, including one for
                  ineffective assistance of counsel, would
                  result in fundamental injustice; or

                  (3) that denial of relief would be contrary
                  to a new rule of constitutional law under
                  either the Constitution of the United States
                  of the State of New Jersey.

                  A ground could not reasonably have been
                  raised in a prior proceeding only if
                  defendant shows that the factual predicate
                  for that ground could not have been
                  discovered earlier through the exercise of
                  reasonable diligence.

                  A denial of relief would be contrary to a
                  new rule of constitutional law only if the
                  defendant shows that the claim relies on a
                  new rule of constitutional law, made
                  retroactive to defendant's petition by the

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                                       5
                   United States Supreme Court or the
                   Supreme Court of New Jersey, that was
                   unavailable during the pendency of any
                   prior proceedings.

             [R. 3:22-4(a)(1)-(3).]

      Defendant argues that plea counsel rendered ineffective assistance by not

investigating and raising mental illness as a non-statutory factor and by failing

to present competency and capacity arguments in support of mitigating factors

(2) and (4) at sentencing.      But the judge concluded—and we agree—that

defendant's ineffective assistance claims are really "excessive sentence

argument[s] in disguise," which Rule 3:22-4(a) precludes. See State v. Acevedo,

205 N.J. 40

, 44 (2011) (explaining that "excessive sentencing arguments must

be raised in a direct appeal, not by way of . . . a petition for [PCR] ").

      Moreover, defendant's claims were previously adjudicated or could have

been raised on direct appeal. At defendant's excessive sentence oral argument

his appellate counsel argued that the trial judge should have afforded weight to

defendant's alleged mental illness as a non-statutory factor and emphasized that

defendant suffered from schizophrenia and bipolar disorder and had been

hospitalized on several occasions. Appellate counsel also argued that the trial

judge should have ordered a psychological evaluation of defendant prior to



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                                         6
sentencing. This court considered these arguments and all relevant mitigating

factors and affirmed defendant's sentence.

      As such, defendant's claims are procedurally barred.

                                       II.

      Even if defendant's arguments were not procedurally barred—which is not

the case—he has failed to establish a prima facie claim for ineffective assistance

of counsel under Strickland/Fritz.

      To meet the first Strickland/Fritz prong, a defendant must establish that

his counsel "made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth 

Amendment.” 466 U.S. at 687

.

The defendant must rebut the "strong presumption that counsel's conduct [fell]

within the wide range of reasonable professional assistance[.]"

Id. at 689.

Thus,

we must consider whether counsel's performance fell below an objective

standard of reasonableness.

Id. at 688.

      Defendant argues his plea counsel rendered ineffective assistance by

failing to make capacity, competency, and mitigation arguments. As to the first

prong of Strickland/Fritz, the judge concluded that:

            [E]ven if [an] excessive sentencing argument was a
            [cognizable] claim [on] . . . PCR, even if the Appellate
            Division had not already ruled in this matter, I find that
            . . . defendant's [plea] counsel acted within the range of

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                                          7
             competence demanded of attorneys in criminal cases
             when he argued during his client's sentencing,
             requesting a mid-range sentence.

We substantially agree. Counsel argued for a mid-range sentence where the

recommended term in the initial plea agreement was twenty-five years. Counsel

urged the judge to consider defendant's cooperation, his intent to rehabilitate

himself, and the hardship a long sentence would pose on his relationship with

his child. Therefore, defendant failed to rebut the "strong presumption that

counsel's conduct [fell] within the wide range of reasonable professional

assistance[.]"

Id. at 689.

      The judge noted that defendant was aware she was not bound by the

recommended sentence but voluntarily pled guilty. Defendant gave a sufficient

factual basis, and represented that he reviewed the police reports, his plea

counsel answered his questions, he was satisfied with his counsel's services, he

was pleading guilty voluntarily of his own free will, and that he understood his

sentencing exposure.

      To satisfy the second Strickland/Fritz prong, a defendant must show "that

counsel's errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable."

Id. at 687.

A defendant must establish "a reasonable

probability that, but for counsel's unprofessional errors, the result of the


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                                         8
proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome."

Id. at 694.

"[I]f counsel's

performance has been so deficient as to create a reasonable probability that these

deficiencies materially contributed to defendant's conviction, the constitutional

right will have been violated." 

Fritz, 105 N.J. at 58

. Both the United States

Supreme Court and the New Jersey Supreme Court have extended the

Strickland/Fritz test to challenges of guilty pleas based on ineffective assistance

of counsel. Lafler v. Cooper, 

566 U.S. 156

, 162-63 (2012); Missouri v. Frye,

566 U.S. 134

, 140 (2012); State v. DiFrisco, 

137 N.J. 434

, 456-57 (1994).

Defendant must demonstrate with "reasonable probability" that the result would

have been different had he received proper advice from his attorney. 

Lafler, 566 U.S. at 163

(quoting 

Strickland, 466 U.S. at 694

).

      Defendant presented no reports showing how his alleged intoxication

prevented him from forming the mens rea required for this crime and failed to

demonstrate that he would have prevailed on an intoxication defense. The judge

found that the introduction of defendant's mental health history would not have

been "outcome determinative" because the judge had given counsel time to

acquire information regarding his client and the pre-sentencing report outlined

defendant's self-reported mental health issues. There were no filed reports


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                                        9
indicating the defendant's mental health impacted his decision-making at the

time of the incident or that he suffered from a mental defect that interfered with

his ability to understand. Defendant's blanket allegations, unsupported by any

documents, are insufficient under Strickland/Fritz. See State v. Cummings, 

321 N.J. Super. 154

, 170 (1999) (stating that "a [defendant] must do more than make

bald assertions"). Defendant failed to demonstrate a reasonable probability that

but for plea counsel's failure to ask for more mitigating factors, the result would

have been different.

                                         III.

      Finally, an evidentiary hearing was unwarranted. A defendant is only

entitled to an evidentiary hearing when he "has presented a prima facie [case] in

support of [PCR]," meaning that a defendant must demonstrate "a reasonable

likelihood that his . . . claim will ultimately succeed on the merits." State v.

Marshall, 

148 N.J. 89

, 158 (1997) (first alteration in original) (quoting State v.

Preciose, 

129 N.J. 451

, 463 (1992)).            The defendant bears the burden of

establishing a prima facie case. State v. Gaitan, 

209 N.J. 339

, 350 (2012).

Defendant did not satisfy this burden.




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                                         10
      To the extent we have not addressed defendant's arguments, we conclude

they are without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

      Affirmed.




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                                      11

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