                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-5566-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JESUS AGUILAR,

     Defendant-Appellant.
___________________________

                    Submitted November 12, 2019 – Decided February 24, 2020

                    Before Judges Rothstadt and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 12-09-0931.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Adam W. Toraya, Designated Counsel, on
                    the brief).

                    Angelo J. Onofri, Mercer County Prosecutor, attorney
                    for respondent (Laura C. Sunyak, Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Jesus Aguilar appeals from the denial of his post-conviction

relief (PCR) petition without an evidentiary hearing. He argues:

            POINT I

            THE POST-CONVICTION RELIEF COURT ERRED
            IN DENYING THE DEFENDANT'S PETITION FOR
            POST-CONVICTION     RELIEF     WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING
            TO FULLY ADDRESS HIS CONTENTION THAT
            HIS ATTORNEY WAS INEFFECTIVE IN FAILING
            TO ADVANCE HIS MOTION TO WITHDRAW HIS
            GUILTY PLEA.

            A.   THE PREVAILING LEGAL PRINCIPLES
            REGARDING    CLAIMS  OF  INEFFECTIVE
            ASSISTANCE OF COUNSEL, EVIDENTIARY
            HEARINGS, AND PETITIONS FOR POST-
            CONVICTION RELIEF.

            B.   DEFENDANT RECEIVED INEFFECTIVE
            ASSISTANCE   OF  COUNSEL     WHEN  HIS
            ATTORNEY FAILED TO ADVANCE HIS MOTION
            TO WITHDRAW HIS GUILTY PLEA.

Unpersuaded, we affirm.

      Absent an evidentiary hearing, our review of the factual inferences drawn

from the record by the PCR court is de novo. State v. Blake, 444 N.J. Super.

285, 294 (App. Div. 2016). Likewise, we review de novo the PCR court's legal

conclusions. Ibid.




                                                                       A-5566-17T1
                                      2
      Originally indicted for five counts of fourth-degree criminal sexual

contact, N.J.S.A. 2C:14-3(b) (counts one, two, four, five, and six); seven counts

of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (counts three, seven,

eight, ten, twelve, fourteen, and sixteen); four counts of second-degree sexual

assault by physical force or coercion, N.J.S.A. 2C:14-2(c)(1) (counts nine,

eleven, thirteen, and fifteen); and two counts of third-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a) (counts seventeen and eighteen),

defendant pleaded guilty to second-degree sexual assault of a fifteen-year-old

girl by physical force or coercion, N.J.S.A. 2C:14-2(c)(1) (count nine). The

plea, entered on the day trial was to begin, was open; that is the State did not

make a sentencing recommendation but reserved the right to argue for a sentence

in the second-degree range.

      When given the opportunity to allocute at sentencing, defendant told the

judge: "I have many things that aren't clear and I'd like a motion to vacate [the]

guilty plea." He claimed he "never used force against the victim." Defendant's

counsel informed the judge that she was not aware of defendant's desire to

withdraw his plea. The judge granted a recess for defendant to consult with

counsel. Thereafter, counsel advised the judge defendant did not agree with her

assessment that defendant's basis for withdrawing his plea would not satisfy the


                                                                          A-5566-17T1
                                        3
test under State v. Slater, 198 N.J. 145, 150 (2009).1 Although defendant

admitted he "made a mistake," he reiterated his claim that he "never used force

against the victim" and averred he could prove that.        When asked by the

sentencing judge what proof he had to support his proposed motion, defendant

replied:

                   In the discovery that [the victim] has and the
            statements that she has, she explains that we had a
            consensual relationship. And there are things that aren't
            clear and, as far as us having relations . . . how can I
            force somebody and then nevertheless afterward that
            person is a virgin[?] So the only thing that I would like
            to clarify is that I never used force against her in any
            way.

The judge, recounting the plea proceedings, found no basis for defendant's

proposed plea withdrawal and sentenced defendant to a five-year prison term,

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and other applicable

statutory requirements.




1
   In Slater, the New Jersey Supreme Court created a four-factor test for
determining whether a defendant should be allowed to withdraw his or her guilty
plea, which requires the court to consider: "(1) whether the defendant has
asserted a colorable claim of innocence; (2) the nature and strength of
defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4)
whether withdrawal would result in unfair prejudice to the State or unfair
advantage to the accused." 198 N.J. at 150.
                                                                        A-5566-17T1
                                       4
      Defendant argues his trial counsel was ineffective for failing to advance a

motion to withdraw his plea, contending he told counsel, in a letter he sent prior

to sentencing and on other occasions, he was not guilty and the allegations of

sexual relations with the victim were false.

      Although the PCR judge addressed the merits of defendant's PCR petition,

declining to address any procedural bars, we note defendant's appellate counsel

argued before our excessive sentencing panel:

                  [T]his is a situation where the defendant appeared
            for sentencing and . . . [asked] to have his plea back.
            The problem that I have with it is that [trial] counsel's
            response was, ["]my client has no basis for such a
            motion["] and as far as I'm concerned . . . he's entitled
            to something more than my client hasn't got a leg to
            stand on . . . please deny his motion.

                  So I think that a remand is in order for a proper
            Slater hearing.

In addition to affirming defendant's sentence, we determined, "[d]ef endant's

arguments pursuant to [Slater] . . . are without sufficient merit to warrant

discussion." State v. Aguilar, No. A-0612-14 (App. Div. July 29, 2015).

      Rule 3:22-5 bars a defendant from raising an issue in a PCR petition that

is identical or substantially similar to an issue that was already raised and

adjudicated in the defendant’s direct appeal. State v. Marshall, 173 N.J. 343,

351 (2002). Inasmuch as the argument that trial counsel failed to advance a

                                                                          A-5566-17T1
                                        5
motion to withdraw defendant's plea was already made on appeal and rejected,

defendant is procedurally barred from presenting the same argument in this PCR

matter.

      Moreover, we note defendant does not argue in his merits brief how he

would overcome the "formidable barrier" created by his own admissions during

the plea hearing in order to prevail at a Slater hearing. Slater, 198 N.J. at 156.

We agree with the State's argument before the excessive sentencing panel that

defendant would not be able to prevail on a motion to withdraw his plea because,

in claiming he never used force against the victim, he misapprehended that term

as it applies to sexual assaults under N.J.S.A. 2C:14-2(c)(1).

      In construing that statute, our Supreme Court held, "[t]he definition of

'physical force' is satisfied under N.J.S.A. 2C:14-2[(c)](1) if the defendant

applies any amount of force against another person in the absence of what a

reasonable person would believe to be affirmative and freely-given permission

to the act of sexual penetration." In re M.T.S., 129 N.J. 422, 444 (1992).

Finding that the Legislature eliminated "nonconsent and resistance from the

substantive definition" of sexual assault when it reformed the sexual assault

statute in 1978, id. at 440-41, 443, the Court was "satisfied that an interpretation

of the statutory crime of sexual assault to require physical force in addition to


                                                                            A-5566-17T1
                                         6
that entailed in an act of involuntary or unwanted sexual penetration would be

fundamentally inconsistent with the legislative purpose to eliminate any

consideration of whether the victim resisted or expressed non[]consent," id. at

443.

       When admitting to the crime during the plea colloquy, defendant agreed

that he anally penetrated the victim and continued to do so after she indicated

she was in pain and said, "no." He understood that the anal penetration was

against the victim's will. Defendant's admissions proved the State's burden "that

there was sexual penetration and that it was accomplished without the

affirmative and freely-given permission of the . . . victim." Id. at 448. "Because

'physical force' as an element of sexual assault in this context requires the

absence of affirmative and freely-given permission, the 'consent' necessary to

negate such 'physical force' under a defense based on consent would require the

presence of such affirmative and freely-given permission."            Id. at 449.

Defendant, therefore, would not have been able to demonstrate that he did not

provide a factual basis for the plea based on his claim that he did not use force.

       Nor did defendant assert a colorable claim of innocence. Contrary to

defendant's claim that the allegations of sexual relations were false, DNA

analysis of sperm found in the victim's underwear confirmed defendant as the


                                                                          A-5566-17T1
                                        7
source, and numerous messages between defendant and the victim confirmed

sexual relations. Although there were no allegations of vaginal penetration—

perhaps explaining defendant's claim that the victim was still a virgin—the State

alleged acts of fellatio and cunnilingus in addition to defendant's admitted act

of anal penetration. As such, defendant would not be able to satisfy his burden

to show that his proposed motion would have been successful if filed. See State

v. Fisher, 156 N.J. 494, 501 (1998). Counsel's decision not to file the motion

did not constitute ineffective assistance under the familiar Strickland-Fritz

standard.2

      Defendant also claims in his merits brief that his "trial counsel 'lied and

misinformed' him"; "constantly barraged [him] to plead guilty"; and "coerced

and cajoled him into accepting the [S]tate's plea offer." He argues the PCR

judge erred by failing to hold an evidentiary hearing at which "he could have

explained how he had been misled and coerced by his attorney to enter the plea,


2
   The test announced by the United States Supreme Court for determining if
counsel was ineffective, adopted by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987), requires a defendant to first show that counsel was deficient
or made errors so egregious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment of the Unites States Constitution.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To meet the second prong,
a defendant must also demonstrate that there exists "a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Id. at 694.
                                                                         A-5566-17T1
                                       8
how he was not guilty of the crime to which he had previously entered a guilty

plea, and how his attorney refused to file a motion to withdraw the plea." He

asserts his counsel told him he would likely get a three-year sentence and would

face little more prison time because he already amassed two years of j ail credit.

      Like the PCR judge, we engaged in a careful review of the plea trans cript

that shows the judge engaged in a patient and thorough colloquy with defendant

that belies defendant's claims. That colloquy revealed trial counsel assumed

defendant's representation about one month after the case had been placed on

the trial list on May 6, 2013. In preparing the case for trial, she claimed the

State had not timely provided discovery. The State admitted sending her DNA

packets containing New Jersey State Police Lab worksheets which were the

basis for a previously provided report; Facebook messages between defendant

and the victim, translated from Spanish to English; and the victim's birth

certificate. Counsel also learned from her review of discovery that defendant

faced federal charges because he had previously been deported and reentered

the United States prior to the alleged crimes, a fact of which defendant had not

been made aware prior to trial counsel's consultation with him.

      The ensuing colloquy with defendant makes abundantly clear that

defendant had full opportunity to proclaim his innocence and tell of trial


                                                                          A-5566-17T1
                                        9
counsel's coercion and deceit.      The judge's initial questioning informed

defendant he had an open line of communication with the judge throughout the

plea hearing:

            [THE COURT]: Now, I'm going to ask you questions
            this morning that sometimes call for a yes or no answer.
            I do this so that I can focus in on determining whether
            to accept your guilty plea. Do you understand?

            [DEFENDANT]: Yes, sir.

            [THE COURT]: By asking you these questions, I'm not
            trying to lead you into saying something that is not true.
            I'm not trying to trick you or I'm not trying to get you
            to say what anyone else wants you to say. Do you
            understand?

            [DEFENDANT]: Yes, sir.

            [THE COURT]: If you feel that you're being forced
            into giving an answer by the way that I'm asking you a
            question, or saying something that is not true, please let
            me know before you answer. Do you understand?

            [DEFENDANT]: Yes, sir.

            [THE COURT]: If you don't understand my question,
            or you don't understand something we are talking about,
            please let me know. Do you understand?

            [DEFENDANT]: Yes, sir.

            [THE COURT]: If I say something different than what
            you believe, or what you were told by someone else,
            what will control is our conversation and not what
            anyone else has told you. Do you understand?

                                                                         A-5566-17T1
                                       10
            [DEFENDANT]: Yes, sir.

            [THE COURT]: If something does not sound right to
            you, tell me as we go through this. Do you understand?

            [DEFENDANT]: Yes, sir.

            [THE COURT]: What we say here today on the record
            will control whether or not your guilty plea today will
            be accepted or rescinded either now or at some future
            date . . . and not what anyone else has told you. Do you
            understand?

            [DEFENDANT]: Yes, sir.

            [THE COURT]: If you need to speak to your attorney
            . . . at any point during this proceeding, let me know
            and I will give you all the time that you need. Do you
            understand?

            [DEFENDANT]: Yes, sir.

      Defendant's admissions to the judge stand in stark contrast to his present

allegations against his trial counsel:

            [THE COURT]: Has anyone forced you or threatened
            you to give up these rights?

            [DEFENDANT]: No, sir.

                   ....

            [THE COURT]: Are you satisfied with [trial counsel’s]
            advice?

            [DEFENDANT]: Yes, sir.


                                                                        A-5566-17T1
                                         11
[THE COURT]: Has she answered all of your questions
to your satisfaction?

[DEFENDANT]: Yes, sir.

[THE COURT]: Do you need any additional time to
speak to [trial counsel] or anybody else such as a family
member or friend regarding your guilty plea or anything
in connection with the charges against you?

[DEFENDANT]: No, sir.

[THE COURT]: Is anyone forcing or threatening you
to plead guilty?

[DEFENDANT]: No, sir.

[THE COURT]: Knowing everything that I’ve said, do
you want me to allow you to plead guilty?

[DEFENDANT]: Yes, sir.

[THE COURT]: Are you pleading guilty because you
are guilty and for no other reason?

[DEFENDANT]: Yes, sir.

      ....

[THE COURT]: Are you giving this plea knowingly,
intelligently, and voluntarily?

[DEFENDANT]: Yes, sir.

[THE COURT]: And do you understand everything
that we've done and spoken about so far?

[DEFENDANT]: Yes, sir.

                                                            A-5566-17T1
                          12
            [THE COURT]: Is there anything you wish to ask me
            before we go further?

            [DEFENDANT]: No, sir.

            [THE COURT]: Is there anything you wish to ask [trial
            counsel] before we go further?

            [DEFENDANT]: No, sir.

                  ....

            [THE COURT]: Now, I’ve asked you questions this
            morning in a yes or no format. Do you feel that I forced
            you to give the answers that you’ve given today?

            [DEFENDANT]: No, sir.

            [THE COURT]: Has anyone told you to give me the
            answers that you’ve given?

            [DEFENDANT]: No, sir.

            [THE COURT]: And have you entered into this plea
            agreement knowingly, intelligently, and voluntarily?

            [DEFENDANT]: Yes, sir.

            [THE COURT]: And do you want me to accept your
            plea of guilty?

            [DEFENDANT]: Yes, sir.

      Defendant's contention that trial counsel told him his exposure would

likely be three years is also belied by the record. During the preliminary stages

of the plea hearing—in defendant's presence—the assistant prosecutor advised:

                                                                         A-5566-17T1
                                      13
"This is an open plea. The State is not making a recommendation. The State is

going to argue that the defendant be sentenced within that second[-]degree

range." Later, after the judge told defendant, "please pay close attention while

the [assistant] prosecutor . . . places the plea agreement on the record," the

assistant prosecutor stated the plea agreement exposed defendant

            to a sentence within the five[-] to ten[-]year range, of
            which [eighty-five] percent he'll have to serve. The
            State [in]tends to make an argument that he serve a
            sentence within that second[-]degree range.
            Ultimately, that sentence is going to be with the
            [c]ourt's discretion and that's because this is an open
            plea offer.        The State is not making any
            recommendation.

Defendant responded affirmatively when the judge asked him if that was his

understanding of the plea agreement.

      He reiterated his understanding when the judge reviewed that he faced "a

maximum of ten years" and "would have to serve [eighty-five] percent of that

time"; and that "the State will make no recommendation to [the judge] other than

stating that [the judge] should sentence [defendant] anywhere between five to

ten years" subject to the NERA parole ineligibility. The colloquy continued:

            [THE COURT]: Do you also understand that your
            attorney . . . will try to present facts to me that would
            cause me to give you less time than five years NERA?

            [DEFENDANT]: Yes, sir.

                                                                        A-5566-17T1
                                       14
            [THE COURT]: But I will not make that decision nor
            can I make that decision until we appear at your
            sentencing. Do you understand that?

            [DEFENDANT]: Yes, sir.

            [THE COURT]: So to make it – try to make it even
            simpler, [defendant], do you understand that at this
            point in time I can sentence you from anywhere
            between five to ten years NERA, you will serve [eighty-
            five] percent of that time unless [trial counsel]
            convinces me that it would be in the interest of justice
            to allow you to do less than five years? Do you
            understand that?

            [DEFENDANT]: Yes, sir.

            [THE COURT]: And whatever amount of time I give
            you, whether it’s been five and ten years or less than
            five years, you must serve [eighty-five] percent of that
            time. Do you understand that?

            [DEFENDANT]: Yes, sir.

            [THE COURT]: And do you understand that I’m not
            making any guarantees to you at this point in time how
            much time I will give you? Do you understand that?

            [DEFENDANT]: Yes, sir.

      The colloquy also established that defendant: reviewed all of the

discovery provided by the State with trial counsel; reviewed the plea forms

utilizing an interpreter, and understood them; understood trial counsel's

explanation of "everything on the plea papers"; was satisfied with trial counsel's


                                                                          A-5566-17T1
                                       15
advice; had all his questions answered by counsel; and did not need any

additional time to speak with counsel.

      "[I]n order to establish a prima facie claim, a petitioner must do more than

make bald assertions that he was denied the effective assistance of counsel."

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant's

bald assertions about counsel's ineffectiveness, belied by the record, do not

establish a prima facie claim. "Defendant may not create a genuine issue of fact,

warranting an evidentiary hearing, by contradicting his prior statements without

explanation." Blake, 444 N.J. Super. at 299. And, an evidentiary hearing is not

to be used to explore PCR claims. See State v. Marshall, 148 N.J. 89, 157-58

(1997).   Thus, the PCR court correctly denied defendant's request for an

evidentiary hearing. R. 3:22-10(b); State v. Preciose, 129 N.J. 451, 462-63

(1992). As we have determined, defendant failed to establish a "reasonable

likelihood of succeeding" under the familiar Strickland-Fritz test. Preciose, 129

N.J. at 463.

      To the extent not addressed, we determine the balance of defendant's

arguments, including that his appellate counsel was ineffective, are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant did not advance in his merits brief any of the other arguments


                                                                          A-5566-17T1
                                         16
presented to the PCR judge; we will not address them. See Sklodowsky v.

Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (holding that "[a]n issue not

briefed on appeal is deemed waived").

      Affirmed.




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