STATE OF NEW JERSEY VS. LUIS HERNANDEZ(04-03-0323, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3402-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS HERNANDEZ,
Defendant-Appellant.
____________________________________________
Submitted September 25, 2017 – Decided October 10, 2017
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
04-03-0323.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County
Prosecutor, attorney for respondent
(Christopher W. Hsieh, Chief Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Luis Hernandez appeals from a February 5, 2016
order denying his petition for post-conviction relief (PCR).
Following our review of the record and applicable law, we
affirm.
In June 2005, a jury convicted defendant of first-degree
aggravated manslaughter, causing death during an eluding,
N.J.S.A. 2C:11-4(a)(2); first-degree death by auto within 1000
feet of a school, N.J.S.A. 2C:11-5(b)(3); second-degree eluding,
N.J.S.A. 2C:29-2(b); third-degree leaving the scene of a motor
vehicle accident resulting in death, N.J.S.A. 2C:11-5.1; third-
degree operating a motor vehicle that was involved in an
accident resulting in death while driving with a suspended
driver's license, N.J.S.A. 2C:40-22(a); and third-degree
endangering an injured victim by leaving the scene of an
accident, N.J.S.A. 2C:12-1.2(a).
In August 2005, defendant was sentenced in the aggregate to
a term of life in prison. Defendant appealed from his
convictions and sentence. We affirmed his convictions but, for
reasons not relevant to the issues raised in this appeal,
remanded the matter for resentencing. See State v. Hernandez,
No. A-1280-05 (App. Div. August 6, 2007). The Supreme Court
denied defendant's petition for certification, 194 N.J. 269(2008).
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On remand, the trial judge imposed the same sentence.
Defendant appealed and, again, for reasons not pertinent to any
issue raised here, we remanded for resentencing. See
State v. Hernandez, No. A-5489-07 (App. Div. Apr. 5, 2011).
While his matter was on appeal, on July 1, 2010, defendant filed
a PCR petition but later withdrew that petition because of the
pending appeal.
On June 24, 2011, defendant was sentenced in the aggregate
to a forty-year term of imprisonment. On January 16, 2013, the
excessive sentencing panel affirmed this sentence. State v.
Hernandez, No. A-3541-11 (App. Div. January 16, 2013).
The facts underlying defendant's convictions are set forth
in our previous opinions and need not be repeated, except to
provide the following brief summary of the evidence.
In November 2003, defendant was pulled over by a Clifton
police officer for a routine traffic stop. Although he
initially stopped, defendant panicked and sped away because he
did not have a valid driver's license. The officer chased
defendant on his motorcycle. Eventually, defendant ran through
a stop sign and collided with the officer on his motorcycle, who
had entered the intersection from a cross street. The impact
caused the officer to be thrown from the motorcycle to his
death. Defendant jumped out of his vehicle and ran away, but
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was returned to the scene by two members of the public.
Defendant later agreed to give blood and urine samples to the
police, and waived his Miranda1 rights.
On December 27, 2013, defendant refiled his petition for
PCR. Among other things, defendant asserted counsel was
ineffective because he failed to investigate whether one of the
police officers who handled his matter was prejudiced against
him because he is Hispanic. On February 5, 2016, the PCR court
denied defendant's petition on substantive grounds, but also
determined the petition was time-barred under Rule 3:22-12(a).
On appeal, defendant raises the following points for our
consideration:
POINT I: DEFENDANT'S PCR PETITION SHOULD
NOT HAVE BEEN PROCEDURALLY BARRED.
POINT II: THIS MATTER MUST BE REMANDED FOR
AN EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
ADEQUATELY INVESTIGATE HIS CASE.
Although we are inclined to agree defendant's petition was time-
barred, we need not address this issue as defendant failed to
make a prima facie showing counsel was ineffective, warranting
we affirm the PCR court's determination to dismiss the petition.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
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The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was
formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court
in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a
claim of ineffective assistance of counsel, defendant must meet
the following two-prong test: (l) counsel's performance was
deficient and he or she made errors so egregious counsel was not
functioning effectively as guaranteed by the Sixth Amendment to
the United States Constitution; and (2) the defect in
performance prejudiced defendant's rights to a fair trial such
that there exists a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, supra, 466 U.S. at 687,
694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
Here, defendant argues trial counsel was ineffective
because he failed to investigate whether any of the police
officers who handled his matter were prejudiced against him
because of his ethnic background. However, defendant proffers
no evidence any officer was in fact prejudiced against him on
the basis of his ethnicity, or what counsel would have
discovered had he investigated this particular claim. In short,
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defendant's claim the officers were prejudiced against him is
merely a bald assertion devoid of any substance.
When a defendant asserts his attorney has inadequately
investigated his matter, "'he must assert the facts that an
investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant
or the person making the certification.'" State v. Porter, 216
N.J. 343, 353 (2013) (citing State v. Cummings, 321 N.J. Super.
154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)).
Here, defendant failed to meet this standard.
Accordingly, we are satisfied from our review of the record
defendant failed to make a prima facie showing of
ineffectiveness of trial counsel under the Strickland-Fritz
test. The PCR court correctly concluded an evidentiary hearing
was not warranted. See State v. Preciose, 129 N.J. 452, 462-63
(1992).
Affirmed.
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