                        NOT FOR PUBLICATION WITHOUT THE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-3436-15T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FLORIBERT B. NAVA,

     Defendant-Appellant.
__________________________

              Submitted May 17, 2017 – Decided July 20, 2017

              Before Judges Fuentes and Farrington.

              On appeal from the Superior Court of New
              Jersey, Law Division, Cape May County,
              Indictment No. 13-07-0690.

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

              Robert L. Taylor, Cape May County Prosecutor,
              attorney   for    respondent   (Gretchen   A.
              Pickering, Assistant Prosecutor, of counsel
              and on the brief).

PER CURIAM

        Defendant appeals from the order of the Criminal Part denying

her post-conviction relief (PCR) petition.               We affirm.
     On February 27, 2014, defendant Floribert Nava pleaded guilty

pursuant to a negotiated agreement to first degree carjacking,

N.J.S.A. 2C:15-2.    At the plea hearing, defendant admitted she

entered a young woman's car, brandished what turned out to be a

toy handgun, and forced the victim to drive her to Philadelphia.

Defendant also admitted that she threatened the victim by telling

her that she would harm the victim's family.         Although not a part

of the plea hearing, it is not disputed that defendant forced the

victim to drive for nearly ninety minutes.          Defendant's goal was

to retrieve the victim's child.       This harrowing ordeal came to an

abrupt end when the victim intentionally drove the car into a

marked police vehicle. Defendant was apprehended near the Benjamin

Franklin Bridge.

     As a part of the plea agreement, the State agreed to recommend

that the court sentence defendant to a term of twelve years with

an eighty-five percent period of parole ineligibility and five

years of parole supervision as required under the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2.         On March 27, 2014, the court

sentenced    defendant   consistent    with   the   terms   of   the   plea

agreement.

     Defendant appealed the sentence under the summary process

authorized by Rule 2:9-11.      In an order dated October 1, 2014,

this court remanded the matter and directed the sentencing judge

                                  2                                A-3436-15T4
to provide more detailed reasons for the imposition of the sentence

and   to   make   specific   findings   in   support    of   the   applicable

aggravating and mitigating factors in N.J.S.A. 2C:44-1.              State v.

Floribert Nava, No. A-4552-13 (App. Div. Oct. 1, 2014).                      On

December 5, 2014, the trial court followed our instructions and

again sentenced defendant to a term of twelve years subject to

NERA.

      On April 27, 2015, defendant filed a pro se PCR petition

alleging ineffective assistance of counsel.            Defendant claimed

            her assigned counsel coerced her into entering
            a guilty plea by misrepresenting her potential
            sentencing exposure if she proceeded to trial
            in the case (telling her "100 years"); and
            failed to explain to her the strengths and
            weaknesses of the prosecution's case, as well
            as failing to make an informed decision
            because defense counsel never attempted to
            interview the purported victim in the case[.]

      The trial court assigned counsel to represent defendant in

prosecuting the PCR petition. PCR counsel filed a brief in support

of defendant's petition.      The matter came for oral argument before

Judge Donna M. Taylor on February 9, 2016.         After considering the

arguments of counsel, Judge Taylor issued a memorandum of opinion

denying defendant's petition on February 26, 2016.            As a threshold

issue, Judge Taylor concluded that an evidentiary hearing was not

necessary because the material facts pertaining to defendant's

allegations in support of PCR were not disputed.

                                    3                                 A-3436-15T4
      After reviewing the record of defendant's plea hearing, Judge

Taylor found defendant was fully apprised of her rights and

knowingly waived those rights.          Defendant also acknowledged that

her attorney had answered all of her questions to her satisfaction,

she had sufficient time to discuss her case with the attorney, and

she was satisfied with the advice the attorney had provided her.

With respect to her penal exposure, Judge Taylor found both defense

counsel and the trial judge addressed defendant directly and

explained to her in detail the potential sentence she could receive

if   she   was   convicted   of   the   five   charges   reflected   in   the

indictment.1     Under these circumstances, Judge Taylor found that

defense counsel's alleged warning to defendant that she was facing

100 years of imprisonment was a legally sound assessment of

defendant's potential penal exposure.

      Judge Taylor also rejected defendant's claim that defense

counsel failed to review with her the strengths and weaknesses of

the State's case.       The record of the plea hearing shows that

defendant acknowledged she had given a voluntary statement to law

enforcement investigators admitting her culpability.             Defendant


1
  In addition to the first degree carjacking charge that she
pleaded guilty to, defendant was indicted for first degree
kidnapping, N.J.S.A. 2C:13-1b(2); second degree luring or enticing
a child, N.J.S.A. 2C:13-6; third degree terroristic threats,
N.J.S.A. 2C:12-3a; and fourth degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4c.

                                        4                            A-3436-15T4
was found inside the car owned by the victim "with a bag containing

duct tape and a mask."    The police found a weapon inside the car.

Thus, Judge Taylor characterized the evidence against defendant

as   "substantial."    Under    these   circumstances,   Judge    Taylor

rejected as not credible defendant's claim that she did not make

a knowing and fully informed decision to plead guilty.

      At the PCR oral argument, defendant was provided with a

certified court interpreter.      At one point, defendant told Judge

Taylor that she was having difficulty understanding "the legal

things that are being said." That prompted the following colloquy:

           THE COURT: Okay. I understand that. I just
           want to make sure that the words that we're
           saying, the interpreter is interpreting them
           so that you can at least hear the words.

           DEFENDANT: Okay.

           THE COURT: Okay. Have you had any problems?
           I know you don't understand the legal
           terminology,   but   you've   been   able   to
           understand   the   words    that   are   being
           interpreted from English to Spanish?

           DEFENDANT: The last time I couldn't.

           THE COURT: No.     I'm talking about now.

           DEFENDANT: Yeah.

                . . . .

           PCR COUNSEL: I would just add, Your Honor,
           that although she didn't assert that she would
           have definitely went to trial in the brief,
           it's her position that she couldn't make that

                                   5                             A-3436-15T4
             decision   due  to   not  understanding   her
             interpreter at that time throughout the whole
             criminal process. She didn't understand her
             discovery review with her attorney.    And it
             seems like that.    So without understanding
             that voice, she doesn't know whether or not
             she would have went to trial.

             THE COURT: Okay. And is that argument based
             on when the defense counsel met her at the
             jail to review the investigation and her plea
             forms?

             PCR COUNSEL: Yes, Your Honor.

             THE COURT: Okay.    And it's just limited to
             that time frame.

             PCR COUNSEL: Well, any and all times counsel
             met with her with the translator.

             THE COURT: The translator that her attorney
             used?

             PCR COUNSEL: Yes.

       In addressing this argument, Judge Taylor acknowledged and

reaffirmed what this court has long made clear: "It is a self-

evident proposition that a defendant who is unable to speak and

understand English has a right to have his trial proceedings

translated so as to permit him to participate effectively in his

own defense."     State v. Guzman, 313 N.J. Super. 363, 377 (App.

Div.) (quoting State v. Kounelis, 258 N.J. Super. 420, 427 (App.

Div.), certif. denied, 133 N.J. 429 (1992)), certif. denied, 156

N.J.   424   (1998).   Citing    State   v.   Perez,   Judge   Taylor   also

recognized that "the language barrier between a defendant and

                                    6                              A-3436-15T4
trial counsel raises the question of whether defendant received

adequate assistance of counsel."         State v. Perez, 100 N.J. Super.

427, 430 (App. Div.), certif. denied, 52 N.J. 160 (1968).

      Judge Taylor ultimately rejected defendant's argument because

the   record   shows   defense   counsel   brought   a   Spanish   language

interpreter when he met with defendant.              Other than her bald

assertion in the PCR hearing, defendant neither presented evidence

explaining how her "dialect2 was different [from the translator's],

nor provide[d] information on the level of distinction."                More

importantly, Judge Taylor found defendant had not claimed she

would have rejected the State's plea offer and stood for trial if

she had fully understood her attorney.

      To prove ineffective assistance of trial counsel, a defendant

must satisfy Strickland's two-part test by demonstrating: (1)

"counsel's performance was deficient[,]" i.e., "that counsel made

errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment[;]" and (2) "there



2
  A dialect is defined as "a regional variety of language
distinguished   by    features   of   vocabulary,   grammar,   and
pronunciation from other regional varieties and constituting
together with them a single language."          Dialect, Merriam-
Webster.com,   https://www.merriam-webster.com/dictionary/dialect
(last visited July 7, 2017). At the plea hearing, defendant stated
she was born in Acapulco, a city in the State of Guerrero, Mexico.
No linguistic evidence has been presented to characterize the
Spanish spoken in Mexico as a dialect.

                                     7                              A-3436-15T4
is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052,

2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v.

Fritz, 105 N.J. 42, 58 (1987).            Applying this standard to the

evidence defendant presented, Judge Taylor concluded defendant had

failed to establish that defense counsel's representation fell

below the standards of professional competence expected from an

attorney in this State.    Even if she had satisfied the first prong

of   Strickland/Fritz,   defendant       did   not    prove   she    would    have

rejected the State's plea offer and risked exposing herself to a

likely far longer term of incarceration by going to trial.

      Against   this   record,   defendant      now    appeals      raising    the

following argument:

           POINT I

           MS. NAVA IS ENTITLED TO AN EVIDENTIARY HEARING
           ON HER CLAIM THAT HER ATTORNEY RENDERED
           INEFFECTIVE ASSISTANCE OF COUNSEL.

      We reject this argument and affirm substantially for the

reasons expressed by Judge Taylor in her memorandum of opinion

dated February 26, 2016.

      Affirmed.




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