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State v. Bermudez

June 28, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MANUEL J. BERMUDEZ, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 04-02-0252 and 04-02-0259.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2010

Before Judges Stern and Graves.

Defendant Manuel Bermudez appeals from an order entered on July 18, 2008, denying his petition for post-conviction relief (PCR). He raises the following issues for our consideration:

POINT I

DURING THE COURSE OF THE POST-CONVICTION MOTION, THE COURT BLATANTLY IGNORED THE UNCONTROVERTED EVIDENCE THAT DEFENDANT-APPELLANT SUFFERED FROM MENTAL ILLNESS, WHICH, COMPOUNDED BY HIS PHYSICAL AILMENTS, RENDERED HIM INCAPABLE OF ENTERING INTO A VOLUNTARY PLEA AGREEMENT.

POINT II

THE SENTENCING COURT WAS OBLIGATED BY LAW TO LIBERALLY CONSIDER DEFENDANT-APPELLANT'S APPLICATION TO WITHDRAW HIS GUILTY PLEA, AND ITS FAILURE TO DO SO UNDER THE CIRCUMSTANCES CONSTITUTED A MANIFEST DENIAL OF JUSTICE.

POINT III

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBTAIN AN EXPERT PSYCHIATRIC ASSESSMENT OF DEFENDANT-APPELLANT TO CONSIDER HIS DIMINISHED MENTAL CAPACITY TO ENTER INTO THE PLEA AGREEMENT.

POINT IV

THE TRIAL COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY [HEARING] DESPITE THE FACT THAT THERE WAS A PRIMA FACIE SHOWING THAT DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBTAIN AN EXPERT PSYCHIATRIC ASSESSMENT OF DEFENDANT TO ADDRESS THE DIMINISHED CAPACITY ISSUE.

Based on our review of the record and applicable law, we conclude that these arguments are clearly without merit. R. 2:11-3(e)(2). Accordingly, we affirm with only the following comments.

Ocean County Indictment No. 04-02-0259 charged defendant with five counts of third-degree attempt to lure or entice a child into a motor vehicle with a purpose to commit a criminal offense in violation of N.J.S.A. 2C:13-6; three counts of third- degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4(a); and two counts of fourth-degree criminal sexual contact in violation of N.J.S.A. 2C:14-3(b). Pursuant to a negotiated plea agreement on July 27, 2004, defendant pled guilty to all five counts of attempting to lure or entice a child into a motor vehicle, and the two counts of criminal sexual contact. In exchange for defendant's guilty pleas, the State agreed to dismiss the remaining counts of the indictment and to recommend a four-year prison term. Defendant also pled guilty to the single count of Ocean County Indictment No. 04-02- 0252, which charged him with third-degree attempted bail jumping in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:29-7. With regard to the bail jumping charge, the State agreed to recommend a four-year term, with the court deciding whether the two sentences would be concurrent or consecutive.

At the plea hearing, defendant testified he could read and write and that he understood all of the questions on the plea form. He also testified he understood the charges and the plea agreement, he was entering the guilty pleas voluntarily, and he was satisfied with the advice and counsel provided by his attorney. In addition, defendant set forth an adequate factual basis for his guilty pleas and, in response to questions by the prosecutor, defendant testified as follows:

Q: Sir, drawing your attention back to the indictment with regard to the luring. You gave a statement in this matter to Detective Mitch Cowit of the Jackson Township Police Department, correct?

A: Correct.

Q: You recall giving that ...


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