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State v. Sanchez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 22, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK SANCHEZ, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Accusation No. 05-01-0183.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 19, 2007

Before Judges Axelrad and Sapp-Peterson.

Defendant Frank Sanchez appeals from the January 2, 2007 Law Division order denying his motion for post-conviction relief (PCR). We affirm.

After a jury convicted defendant of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and fourth-degree child abuse, N.J.S.A. 9:6-3, defendant was sentenced, in the aggregate, to eighteen years imprisonment with a nine-year period of parole ineligibility. On appeal, defendant's convictions were reversed and the matter remanded for a new trial based upon the improper admission of highly prejudicial N.J.R.E. 404(b) evidence. State v. Sanchez, No. A-478-02T4 (App. Div. April 8, 2004).

Upon remand, on January 27, 2005, defendant waived indictment and trial by jury and agreed to prosecution on an accusation charging him with one court of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On that same day, defendant, as part of a negotiated plea agreement, pled guilty to the charge. In exchange, the State agreed to dismiss the original indictment and to recommend a flat five-year period of incarceration together with a Megan's Law community supervision for life (CSL) component. N.J.S.A. 2C:43-6.4.

During the plea colloquy with defendant, Judge Venezia not only obtained a factual basis for the plea, but also reviewed in great detail the penal consequences of his plea, most significantly, registration, CSL, and civil commitment following the completion of his incarceration "if the Court finds after [a] hearing [that he is] in need of involuntary civil commitment for sex offender treatment." Defendant acknowledged his understanding of all of these penal consequences to his guilty plea.

Thereafter, defendant was sentenced in accordance with the plea agreement and subsequently appealed his sentence to the Excessive Sentence Oral Argument Program. Defendant's sentence was upheld. We noted, in the order affirming the sentence, that defendant was no longer imprisoned. Instead, he was being held at the Special Treatment Unit for Sexually Violent Predators.

On October 20, 2006, defendant filed a verified petition seeking PCR based upon ineffective assistance of trial counsel, who defendant claimed failed to properly advise him of the penal consequences of his guilty plea, specifically, the possibility of civil commitment following completion of the custodial portion of state prison sentence. Additionally, defendant alleged ineffective assistance of appellate counsel for failure to raise the issue of the civil commitment before the Excessive Sentencing Panel.

Following oral argument on the motion, Judge Venezia denied the petition, finding that defendant entered his guilty plea "freely and voluntarily" and was fully aware of the "ramifications" of his plea and "fully aware of his rights and circumstances with respect to [his] plea." The judge rejected defendant's claim that he was forced to enter the guilty plea by his former attorney. The ensuing appeal followed.

Defendant raises the following points for our consideration:

POINT ONE

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT TWO

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT THREE

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF COUNSEL.

POINT FOUR

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF (NOT RAISED BELOW).

We have considered the points raised in light of the applicable law and we are satisfied that the arguments are of insufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2). We affirm substantially for the reasons expressed in Judge Venezia's oral opinion of December 19, 2006. We add the following comments.

Although defendant's affidavit in support of his petition claimed that defense counsel "affirmatively misinformed [him] regarding [his] release from custody following the plea and the possibility of future civil commitment under the Sexually Violent Predator's Act," N.J.S.A. 30:4-27.24 to -27.38, the very detailed colloquy between the court and defendant on the issue of civil commitment, registration, and CSL belie this allegation. The court therefore properly denied defendant's request for an evidentiary hearing. Evidentiary hearings on PCR petitions are neither mandated nor necessary to fully and properly evaluate each issue for relief asserted. See State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).

Affirmed.

20080222

© 1992-2008 VersusLaw Inc.



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