                                NOT FOR PUBLICATION WITHOUT THE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-5194-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JULIO E. MARTINEZ,

     Defendant-Appellant.
______________________________

                   Submitted May 6, 2019 – Decided July 17, 2019

                   Before Judges Sabatino and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 13-03-0736.

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

                   Mary Eva Colalillo, Camden County Prosecutor,
                   attorney for respondent (Linda Anne Shashoua,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Julio E. Martinez appeals from the denial of his petition for

post-conviction relief (PCR). Defendant pled guilty pursuant to a negotiated

plea agreement to aggravated manslaughter for stabbing his former girlfriend to

death. He was sentenced in accordance with the plea agreement to a prison term

of twenty-eight years subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2(a). His homicide sentence was ordered to run concurrently with the

sentence defendant was already serving for a drug conviction.

      Defendant’s PCR petition claims that he received ineffective assistance of

counsel.   Specifically, defendant contends that his trial attorney failed to

investigate whether medication defendant claims to have been taking while

incarcerated inhibited his ability to enter a knowing and voluntary guilty plea.

We affirm substantially for the reasons set forth by the PCR judge in his

thorough and well-reasoned oral decision denying relief without an evidentiary

hearing.

                                        I.

      Defendant was indicted for knowing-purposeful murder, felony murder,

burglary, unlawful possession of a weapon, possession of a weapon for an

unlawful purpose, two counts of endangering the welfare of a child, and stalking .

Those charges stemmed from a tragic domestic violence episode during which


                                                                          A-5194-17T3
                                        2
defendant broke into his former girlfriend’s apartment, fatally stabbed her with

a knife, and fled the scene with the blade still in his victim’s back. Before

succumbing to her wounds, the victim managed to call 9-1-1 and told police

what defendant had done.

      Defendant’s counsel negotiated a plea agreement in which the State

agreed that in exchange for defendant’s guilty plea to aggravated manslaughter,

the State would dismiss the murder charge and all other counts of the indictment.

The State also agreed that the sentence would run concurrently to the narcotics -

conviction sentence defendant was already serving.

      On September 8, 2014, defendant appeared before the Hon. John T.

Kelley, J.S.C., to enter his guilty plea to the reduced charge of aggravated

manslaughter. During the plea colloquy, the judge asked defendant, "[a]s you

stand before me this afternoon, sir, are you under the influence of any drugs,

alcohol, or any medicines that would affect your judgment?" Defendant, who

was under oath, replied "[n]o, sir." The judge then asked, "[a]s you stand before

me do you have a clear head and understand what you’re doing?" Defendant

replied, "[y]es sir."

      Prior to sentencing, defendant was interviewed by court staff as part of

the process of preparing the Adult Presentence Report (PSR). According to the


                                                                         A-5194-17T3
                                       3
PSR, defendant "described his health as good and denied any physical or mental

disorders."    The PSR does not indicate that defendant was taking any

medications.

      On October 10, 2014, defendant was sentenced by Judge Kelley in

accordance with the plea agreement. Defendant filed a direct appeal, only

challenging his sentence. On June 1, 2015, an excessive sentence panel of this

court granted defendant’s request for a remand to consider the proper number of

jail credits that should have been awarded, and the Judgment of Conviction was

thereafter amended to reflect the correct number of credits. The sentence was

otherwise left undisturbed.

      Two years later, defendant filed a PCR petition contending that his trial

counsel rendered ineffective assistance by failing to inquire about medications

defendant claims he was taking at the time of his guilty plea. The PCR judge,

who had previously accepted defendant’s plea and sentenced him, denied

defendant relief without an evidentiary hearing.

                                      II.

      Defendant appeals, arguing:

              DEFENDANT    WAS    DENIED   EFFECTIVE
              ASSISTANCE OF COUNSEL FOR COUNSEL'S
              FAILURE TO INVESTIGATE DEFENDANT'S
              CLAIM THAT THE MEDICATION HE WAS BEING

                                                                       A-5194-17T3
                                       4
            ADMINISTERED    WHILE    INCARCERATED
            INHIBITED HIS ABILITY TO ENTER INTO A
            KNOWING AND INTELLIGENT PLEA.


                                       III.

      To show ineffective assistance of counsel, defendant must meet the two-

part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), which

was adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). "'First,

the defendant must show that counsel’s performance was deficient.'" Fritz, 105

N.J. at 52 (quoting Strickland, 466 U.S. 687); see also State v. Tacetta, 200 N.J.

183, 193 (2009).      "'Second, the defendant must show that the deficient

performance prejudiced the defense.'" Ibid. When the claim of ineffective

assistance relates to a guilty plea, a defendant must satisfy a modified Strickland

standard:

            When a guilty plea is part of the equation, . . . 'a
            defendant must show that (i) counsel’s assistance was
            not "within the range of competence demanded of
            attorneys in criminal cases"; and (ii) "that there is a
            reasonable probability that, but for counsel’s errors,
            [the defendant] would not have pled guilty and would
            have insisted on going to trial."'

            [State v. Nuñez-Valdez, 200 N.J. 129, 139 (2009)
            (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)
            (citations omitted) (second alteration in original)).]



                                                                           A-5194-17T3
                                        5
         Furthermore, to obtain relief under the second prong, "a petitioner must

convince the court that a decision to reject the plea bargain would have been

rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372

(2010) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000)).

         An evidentiary hearing for PCR is only required when the defendant has

made a prima facie showing of entitlement to such relief by demonstrating "a

reasonable likelihood that his or her claim will ultimately succeed on the

merits." State v. Marshall, 148 N.J. 89, 158 (1997) (citing State v. Preciose, 129

N.J. 451, 463 (1992)). A petitioner must establish the right to relief by a

preponderance of the evidence. Preciose, 129 N.J. at 459.

         Bald assertions of ineffective assistance are not enough.          State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A petitioner "must

allege     facts   sufficient   to   demonstrate   counsel’s   alleged   substandard

performance[,]" and the court must view the facts alleged in the light most

favorable to the petitioner. Ibid. Of particular note for purposes of the case

before us on this appeal, PCR petitions must be "accompanied by an affidavit or

certification by the defendant, or by others, setting forth with particularity the

facts that he wished to present." State v. Jones, 219 N.J. 298, 312 (2014).




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                                           6
      Guided by these principles, we find no merit to defendant’s contentions

and we affirm substantially for the reasons set forth by Judge Kelley in his oral

decision. The PCR court correctly characterized defendant’s claims as "bald"

assertions because defendant provided no support for his claim that he was

taking medications. Defendant’s claims are belied by his sworn statement at the

time of the plea colloquy that he was not taking any medications that might

affect his judgment and by his acknowledgement that he had a "clear head" and

understood what was happening during the plea hearing. His unsupported claim

also flies in the face of the information he provided to probation staff as they

were preparing the PSR.

      Furthermore, the PCR court noted that defendant has failed to supply

records from the Camden County Correctional Facility concerning any

medications he was taking at the time of the guilty plea. Indeed, as the PCR

court aptly noted, "[h]e has not specified the medications he purportedly took

and has not identified how they would affect his judgment. He has not even set

forth a medical condition, which would have required medication."

      Finally, defendant has not presented any colorable argument that the

decision to reject the plea agreement – which allowed him to avoid a mandatory

thirty-year parole ineligibility term, if not a substantially longer life prison


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                                       7
sentence – would have been rational under the circumstances. Padilla, 559 U.S.

at 372. As the judge who entered the plea, sentenced defendant, and heard the

PCR petition noted, the State’s evidence in this case is overwhelming.

      Affirmed.




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