NOT FOR PUBLICATION WITHOUT THE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
A-3662-18T1
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
A-3662-18T1
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
A-3662-18T1
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
A-3662-18T1
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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
A-3662-18T1
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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
A-3662-18T1
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.
A-3662-18T1
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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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