State of New Jersey v. Joaquin A. Linares-Hernandez ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-1883-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOAQUIN A. LINARES-
HERNANDEZ, a/k/a
JOAQUIN LINARES, and
JOAQUIN HERNANDEZ,
Defendant-Appellant.
_______________________
Submitted November 29, 2023 – Decided February 12, 2024
Before Judges Firko and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No.
16-06-0972.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Erin M. Campbell, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Joaquin A. Linares-Hernandez pled guilty in 2016 to
aggravated sexual assault. Defendant was sentenced in 2017 in accordance with
his plea agreement to a ten-year prison term subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. He appeals from a January 20, 2022 order entered
by Judge Pedro J. Jimenez, Jr., denying his petition for post-conviction relief
(PCR) without an evidentiary hearing. After carefully reviewing the record in
light of the governing legal principles, we affirm.
I.
We briefly summarize the pertinent facts and procedural history leading
to this appeal. In December 2015, defendant attended a party during which he
encountered an eight-year-old girl. Defendant sexually assaulted her by pulling
down her pants and underwear and touching her vagina.
In June 2016, defendant was charged by indictment with first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault,
N.J.S.A. 2C:14-2(b); third-degree endangering welfare of child, N.J.S.A. 2C:24-
4(a)(1); second-degree hindering own apprehension, N.J.S.A 2C:29-3(b)(3); and
third-degree terroristic threats, N.J.S.A. 2C:12-3(a).
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At a status conference conducted in July 2016, defendant proposed a
counteroffer to the plea agreement that had been offered by the prosecutor.
Defendant proposed to plead guilty to a second-degree aggravated sexual assault
with a recommendation for a nine-year prison term and the ability to argue for
a five-year term. The State's offer had capped the sentence at ten years rather
than nine. Although the State was prepared to accept defendant's
counterproposal, defendant was not ready to plead guilty and the offer expired.
At a status conference in September 2016, the prosecutor's plea offer
reverted to a ten-year maximum prison term but retained the possibility for
defendant to argue for a lesser sentence within the second-degree range. During
a subsequent status conference in October 2016, defense counsel told Judge
Jimenez he would present evidence at the sentencing hearing that would mitigate
the crime. Judge Jimenez responded:
Okay, but I would be surprised, very surprised—and
you're good enough to do that [defense counsel]—to get
me down to a five. . . but I would probably feel—
depending on what the facts are like—I'm not sure that
I'm going to get there. At a best case scenario, because
I've never seen . . . anything otherwise, but I'm looking
for you to impress me as you always do, [defense
counsel], maybe an eight, maybe an eight, and that's a
stretch. But I'm thinking that the value of this case is
anywhere between eight years and [ten] years based on
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the offer that you got. Certainly, if we go to trial, you're
looking at [twenty-five] to life.
Later during that hearing, Judge Jimenez clarified:
Ten years is the offer. That's what the State is
recommending. Maybe, based on what [defense
counsel] presents at the time of sentencing, maybe I
could go down to nine, pressing me very hard, maybe
an eight. Okay? But if you're thinking that the State is
going to resolve this case by way of a five or that five
years is an offer you're going to get for sentence, wipe
that out of your mind. This is not that kind of case.
Okay? The best you'd be able to do is anywhere
between eight to [ten] years. And even then, I would
be kind of hard pressed to get to that number because I
don't know that there's [anything] in this record for me
to be able to do that. But I'm telling you from me, based
on my experience with these cases, representation of
counsel so far, what I've read in the file, what I expect
to read in the file, based on what the State offers, what
the victim supplies, and most importantly what
[defense counsel] is going to give me, I have to assess
this case . . . as being no less than eight, no more than
[ten]. Okay? Now, that's why I'm telling you when I
bring this case back on . . . Monday . . . I need to know
whether you're going to take this plea offer or not. It's
going to be not to a first-degree but to a second-degree
aggravated sexual assault . . . .
The prosecutor originally told Judge Jimenez the offer was only open for that
day, but the judge convinced the prosecutor to hold the offer open until the next
conference on the following Monday.
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At the plea conference, which was convened on November 7, 2016, Judge
Jimenez stated:
You're pleading guilty to [c]ount 1 of this indictment.
It charges you with aggravated sexual assault in the
second degree. In exchange—the maximum for which
you could receive is ten years. In exchange, the State
is dismissing the balance of this indictment,
recommending that you serve ten years, [eighty-five]
percent of which you would have to serve without
parole as per [NERA]. And your attorney's going to
argue for less time than that. The minimum you could
receive is five years. I guess it will be up for me to
decide based on my review of the aggravating and
mitigating factors.
Defendant thereupon accepted the State's offer and entered a guilty plea
to the amended charge of second-degree aggravated sexual assault. Defendant
provided a factual basis for the plea, admitting he improperly touched an eight -
year-old girl for sexual gratification at a party on December 13, 2015.
The sentencing hearing was held on March 31, 2017. Defense counsel
argued defendant accepted responsibility for the crime and provided letters from
friends and family. Defense counsel also proposed mitigating factors for the
judge to consider. Defendant spoke on his own behalf and expressed remorse.
Six character witnesses spoke in support of defendant.
After considering the applicable aggravating and mitigating factors, Judge
Jimenez sentenced defendant in accordance with the plea agreement to a ten-
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year NERA term. Defendant did not file a direct appeal. In November 2018, he
filed the present petition for PCR.
In February 2021, Judge Jimenez convened a non-evidentiary PCR
hearing. Defendant argued the judge misrepresented what the sentence was
going to be, violating his constitutional rights. Judge Jimenez asked defense
counsel, "[a]t any time did I tell the defendant that I was going to give him an
[eight]-year sentence?" Defense counsel acknowledged, "Your [H]onor did not
say that directly." The judge stated, "[t]he record doesn't reflect, at all, that I
ever said I was going to give him an [eight]-year sentence, and only an [eight]-
year sentence. Right?" Defense counsel replied, "[i]n no specific words."
On January 20, 2022, Judge Jimenez issued a written opinion denying
PCR. He found that any confusion regarding the plea agreement had been
cleared up before defendant accepted the State's final plea offer. The judge also
rejected defendant's argument that he detrimentally relied on the judge's
comments. Judge Jimenez noted the language used was "certainly not language
indicative of a guarantee or a promise as petitioner alleges."
With respect to defendant's ineffective assistance of counsel contention,
Judge Jimenez concluded "the counsel [d]efendant received from his attorneys
in no way reaches the level required to claim ineffective assistance of counsel."
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The judge further noted the plea agreement defendant accepted was "incredibly
favorable" considering the sentence he would have received if convicted of the
first-degree aggravated sexual assault of a minor charge. Judge Jimenez also
found defendant failed to show he suffered any prejudice as a result of his
attorney's performance.
Defendant raises the following contentions for our consideration:
POINT I
MR. LINARES-HERNANDEZ IS ENTITLED TO
RELIEF OR AN EVIDENTIARY HEARING ON HIS
CLAIM THAT HE IS ENTITLED TO AN
ENFORCEMENT OF HIS PLEA BARGAIN.
A. By pleading guilty, Mr. Linares-Hernandez
detrimentally relied on the sentencing court's
statements, and defense counsel's belief, that the
court could be convinced, through mitigating
evidence, to impose an eight-year term of
imprisonment.
B. The [S]tate and defense agreed to a nine-year
maximum sentence, where the range was
between five and nine years, in exchange for Mr.
Linares-Hernandez's guilty plea, and that plea
agreement must be enforced.
POINT II
IN THE ALTERNATIVE, MR. LINARES-
HERNANDEZ IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT COUNSEL
RENDERED INEFFECTIVE ASSISTANCE BY
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FAILING TO ADVOCATE ADEQUATELY ABOUT
HIS SENTENCE.
II.
We first address defendant's contentions regarding the plea agreement and
his reasonable expectations as to the sentence that would be imposed. "The
validity of a plea agreement is guided by considerations of fundamental fairness
and public policy." State v. Subin, 222 N.J. Super. 227, 237 (App. Div. 1988).
"The overall consideration when evaluating a particular plea agreement is
fairness." Ibid. "A defendant who pleads guilty in reliance on a promise or
agreement of the State has the right to expect that the bargain will be fulfilled."
Id. at 238.
Defendant argues, "[b]y pleading guilty, [he] detrimentally relied on the
sentencing court's statements, and defense counsel's belief, that the court could
be convinced, through mitigating evidence, to impose an eight-year term of
imprisonment." In support of that contention, defendant relies on our opinion
in State v. Hooper, 459 N.J. Super. 157 (App. Div. 2019). Defendant's reliance
on that opinion is misplaced.
In Hooper, the judge allegedly made remarks during off-the-record
negotiations between the defendant's attorneys and the prosecutor, commenting
the case did not appear to be one that justified consecutive sentences. Id. at 182-
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83. The defendant's lawyer claimed to rely on those statements by the judge "to
counsel defendant to reject a recommended thirty-year sentence and instead
enter an open plea to the indictment. . . . " Id. at 184. The defendant claimed
his counsel predicted his sentence would be between ten and twenty years. Id.
at 171. By entering an "open plea," defendant exposed himself to an extended
term of life in prison. Id. at 176.
On those facts, we reasoned, "although defendant cannot compel the court
to take any action based on its remarks about the sentence outside the confines
of Rule 3:9-3(c), the judge should, nevertheless, consider whether counsel's
reliance on those remarks, whether reasonable or not, caused them to seriously
misadvise their client." Id. at 183. We thus held fundamental fairness allows
the judge to consider whether a withdrawal of the guilty plea is permitted under
Rule 3:21-1. Id. at 183-84.
The matter before us is starkly different from the facts in Hooper. Here,
Judge Jimenez' remarks—which we have reproduced verbatim—were made
during a status conference on the record and in defendant's presence. We are not
dealing with a situation where a judge's off-the-record comments were presented
to defendant via his attorney. The record makes clear, moreover, that Judge
Jimenez at no time promised or guaranteed he would reduce the negotiated
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prison term from ten to eight years. To the contrary, Judge Jimenez's remarks
before the guilty plea was entered made clear that while a reduced sentence was
possible, it was unlikely.
We also reject defendant's contention he is entitled to specific
performance of the counteroffer that would have capped the prison term at nine
years. The record shows that while the prosecutor accepted the counteroffer,
defendant was not prepared to plead guilty at that hearing and wanted time to
speak with his family. The nine-year maximum plea offer thus expired before
defendant agreed to plead guilty.
At the hearing during which defendant did plead guilty, Judge Jimenez
made clear the State's offer was that it would recommend a ten-year sentence,
while leaving open the possibility for defense counsel to convince the court to
impose a lesser sentence. As Judge Jimenez stressed in his PCR decision, "any
confusion surrounding the plea agreement was ultimately cleared up prior to
[d]efendant accepting the plea."
On this record, we agree with Judge Jimenez that defendant knowingly
and voluntarily pled guilty pursuant to a plea agreement that capped his prison
term at ten years, not nine years. We add that notions of fundamental fairness
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do not require defendant be permitted to withdraw his guilty plea, nor entitle
him to specific performance of the nine-year plea agreement that had expired
before he pled guilty. See Subin, 222 N.J. Super. at 237 ("The overall
consideration when evaluating a particular plea agreement is fairness."). As
Judge Jimenez aptly noted in his PCR decision, "the plea being offered to
[d]efendant, even its final form, was incredibly favorable given the maximum
sentence [d]efendant faced."
III.
We next turn to defendant's contention he was denied effective assistance
of counsel. In addressing an ineffective assistance claim, New Jersey courts
follow the two-part test articulated by the United States Supreme Court in
Strickland v. Washington. 466 U.S. 668, 687 (1984). See State v. Fritz, 105 N.J.
42, 58 (1987). "First, the defendant must show that counsel's performance was
deficient." State v. Gideon, 244 N.J. 538, 550 (2021) (quoting Strickland, 466
U.S. at 687). "Second, the defendant must have been prejudiced by counsel's
deficient performance." Ibid. (quoting Strickland, 466 U.S. at 687).
To meet the first prong of the Strickland/Fritz test, a defendant must show
"that counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466
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U.S. at 687. Reviewing courts indulge in "a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance. . . ."
Id. at 689.
The second Strickland prong is especially demanding. It requires the
defendant 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. Put differently,
counsel's errors must create a "reasonable probability" that the outcome of the
proceedings would have been different if counsel had not made the errors. Id.
at 694.
This "is an exacting standard." Gideon, 244 N.J. at 551 (quoting State v.
Allegro, 193 N.J. 352, 367 (2008)). "Prejudice is not to be presumed," but must
be affirmatively proven by the defendant. Ibid. (citing Fritz, 105 N.J. at 52, and
Strickland, 466 U.S. at 693.). Furthermore, to set aside a guilty plea based on
ineffective assistance of counsel, a defendant must show "'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. DiFrisco,
137 N.J. 434, 457 (1994) (alteration in original) (quoting Hill v. Lockhart, 474
U.S. 52, 59 (1985)).
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In the present matter, defendant argues "counsel failed to argue against
the court's improper findings of aggravating factors [two] 1 and [nine].2" More
specifically, defendant argues plea counsel should have argued the sentencing
court's finding of aggravating factor two was impermissible double counting and
that the court did not set forth an adequate basis for finding aggravating factor
nine.
With respect to aggravating factor two, "sentencing courts must avoid
double-counting any element of an offense as an aggravating factor. . . ." State
v. Lawless, 214 N.J. 594, 601 (2013). Accordingly, "[e]lements of a crime,
including those that establish its grade, may not be used as aggravating factors
for sentencing of that particular crime." Id. at 608.
1
N.J.S.A. 2C:44-1 (a)(2) provides:
The gravity and seriousness of harm inflicted on the
victim, including whether or not the defendant knew or
reasonably should have known that the victim of the
offense was particularly vulnerable or incapable of
resistance due to advanced age, ill-health, or extreme
youth, or was for any other reason substantially
incapable of exercising normal physical or mental
power of resistance. . .
2
"The need for deterring the defendant and others from violating the law. . ."
N.J.S.A. 2C:44-1(a)(9).
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In this case, in support of finding that aggravating factor two applied,
Judge Jimenez stated:
Based on my reading of the [Presentence Report], I do
find aggravating factor [two] applies, the gravity and
seriousness of the harm inflicted on the victim.
Because whether it was a touching or a penetration, as
alleged by the State, and I cited the phrase "touching,"
recalling the defendant's plea. Either[] it was
perpetrated on an 8-year-old girl at the time of the
offense. And while I accept [defendant's] remorse as
represented by his statement in court here today, for the
difficulties now that he's going to have to experience as
a result of this prison sentence, and whatever other
consequences he is subjected to as a result of this
sentence, I cannot lose sight of the fact that . . . the
conduct to which he's admitted to has not only
destroyed his own family, as represented by those who
present themselves here in support of him. But it's also
destroyed the family of the victim for what they've had
to experience, and what they now have to live with for
the rest of their lives, as well. . . .
My hope would be that this young girl, the victim in
this case, would be able to outgrow this experience . . .
so that she could live a normal life, free of this memory
because this is most certainly not a memory that she
should be carrying with her because she doesn't deserve
it. Because no 8-year-old deserves it, but all I can do is
just hope. I hope that the defendant remembers, and
never loses sight of this incident.
We are satisfied the judge did not commit impermissible double-counting
by acknowledging the impact defendant's crime will have on the life o f the
young victim and her family. That impact is not an element of aggravated sexual
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assault. Accordingly, counsel did not render constitutionally deficient
assistance with respect to the sentencing court's consideration of the gravity and
seriousness of the harm inflicted on the victim.
As for aggravating factor number nine, Judge Jimenez stated,
"[a]ggravating factor [nine] applies, the need for deterring him and others from
violating the law." It would seem self-evident that this type of criminal behavior
warrants deterrence. We see no error whatsoever in the judge applying this
aggravating factor, and no argument of counsel could render it inapplicable.
Defendant further argues, "counsel should have advocated for the court to
consider the references who wrote and spoke for [defendant], which is what the
court had said it would focus on in favor of a lower sentence." However, the
sentencing judge stated, "I'm more concerned with what comes out of the
defendant's mouth. I'm more concerned with what is available from the victim.
And with regards to any character references that the defendant has, because
those are the three things that I base my decision on." The record thus shows
the judge did consider the character references. We add that viewed in context,
those references by no means mitigate the serious sex crime defendant
committed against an eight-year-old victim. In sum, we conclude defendant has
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failed to show counsel's performance at the sentencing hearing was deficient or
that he was prejudiced in any way by that performance.
Lastly with respect to defendant's ineffective assistance contentions,
defendant argues,
[t]he transcripts show that no one—the judge, the
prosecutors, or defense counsel—knew what had
already transpired and been agreed to, to [defendant's]
detriment, and counsel's failure in knowing the history
of his client's case, so that he could present a proper
record and advocate for his client, resulted in a higher
sentence for [defendant].
However, Judge Jimenez found in his PCR decision:
While the turnover of attorneys on both sides was
inefficient, it does not qualify as an error so severe that
it prevented [d]efendant from receiving the
representation guaranteed to him by the Sixth
Amendment. The [c]ourt agrees with the State that any
confusion surrounding the plea agreement was
ultimately cleared up prior to [d]efendant accepting the
plea. Additionally, the plea being offered to
[d]efendant, even its final form, was incredibly
favorable given the maximum sentence [d]efendant
faced. As such, [d]efendant's attorneys worked in
concert with the State so much so that they were able to
secure such a favorable plea for [d]efendant.
We have no basis upon which to disturb this finding and agre e with the
PCR judge's ultimate conclusion that defendant has not carried his burden with
respect to either prong of the Strickland/Fritz test. Having failed to prove a
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prima facie case under that test, defendant is not entitled to an evidentiary
hearing, much less to vacate his conviction or sentence. See State v. Preciose,
129 N.J. 451, 462-63 (1992); see R. 3:22-10(b).
Affirmed.
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