On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0904.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011
Before Judges Ashrafi and Nugent.
Defendant Jose Martinez appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
On December 10, 2007, defendant pleaded guilty pursuant to a plea agreement to a single-count indictment charging the second-degree crime of vehicular homicide, N.J.S.A. 2C:11-5a. As a factual basis for his guilty plea, defendant admitted that on December 18, 2006, he drove his vehicle after drinking with friends. He passed through a toll booth and then drove into the wrong lanes and toward oncoming traffic on Interstate Highway 280. His car collided head-on with another vehicle, and a rear passenger in his car was killed. Defendant stipulated that his blood alcohol level at the time of the crash was above the legal limit for driving while intoxicated.
On February 2, 2008, defendant was sentenced to five years' imprisonment, with eighty-five percent of the term to be served before parole and three years of parole supervision under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On October 20, 2009, defendant filed the petition for PCR claiming that he did not understand the consequences of his guilty plea because he is Spanish-speaking and his attorney did not adequately advise him about the charge and the terms of the plea agreement. The judge who had taken defendant's guilty plea and imposed sentence heard argument on the PCR petition and denied it without an evidentiary hearing.
On appeal, defendant argues:
THE GUILTY PLEA OF JOSE MARTINEZ SHOULD BE VACATED AS IT WAS NOT ENTERED KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY.
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
In his appellate brief, defendant raises several arguments about his attorney's performance at the time of his guilty plea, the crux of which is that he was not correctly advised about the effect of NERA on his sentence and about the potential sentence he faced if he stood trial on the charge.
Our standard of review is plenary on questions of law in a PCR appeal, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. See State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). In addition, the trial court has discretion to determine whether an evidentiary hearing is required to resolve factual issues outside the trial record. See State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. ...