STATE OF NEW JERSEY VS. DANIEL v. HERNANDO (10-12-0452 AND 11-05-0166, HUNTERDON 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NOT FOR PUBLICATION WITHOUT THE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-5038-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIEL V. HERNANDO, a/k/a
DANNY HERNANDO TINK,
Defendant-Appellant.
___________________________
Submitted January 12, 2021 – Decided February 1, 2021
Before Judges Mawla and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Hunterdon County, Indictment Nos. 10-12-
0452 and 11-05-0166.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kathryn Sylvester, Deputy Public Defender,
of counsel and on the brief).
Michael J. Williams, Acting Hunterdon County
Prosecutor, attorney for respondent (Jeffrey L.
Weinstein, Special Deputy Attorney General/Acting
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Daniel V. Hernando appeals from a May 31, 2019 Law
Division order dismissing his petition for post-conviction relief (PCR) with
prejudice. We reverse and remand for further proceedings.
I.
Defendant was born in Uruguay and became a United States permanent
resident. On January 16, 2009, he pled guilty under Indictment No. 08-10-0407
to third-degree conspiracy to commit burglary and a petty disorderly persons
offense, and was sentenced to a concurrent two-year probationary term.
Defendant subsequently pled guilty to a violation of probation and was
sentenced to an aggregate four-year prison term.
On December 16, 2010, defendant was charged under Indictment No. 10-
12-0452 with two counts of third-degree possession of a controlled substance
(CDS), one count of fourth-degree unlawful possession of a weapon, and one
count of fourth-degree possession of a CDS with intent to distribute. On
December 21, 2010, the Department of Homeland Security filed a notice for
defendant to appear for removal proceedings. An Immigration and Customs
Enforcement (ICE) detainer was also lodged against him.
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On May 19, 2011, defendant was charged under Indictment No. 11-05-
0166 with three counts of third-degree forgery, one count of fourth-degree theft
by deception, and one count of third-degree burglary. On June 16, 2011,
defendant entered a negotiated plea under Indictment Nos. 452 1 and 166 to one
count of third-degree possession of CDS, one count of fourth-degree possession
with intent to distribute, and one count of third-degree forgery.
In the accompanying plea form, defendant acknowledged in question
number seventeen that: 1) he was not a citizen of the United States; 2) he "may
be deported by virtue of [his] plea of guilty"; 3) "if [his] plea of guilty is to a
crime considered an 'aggravated felony' under Federal law [he would] be subject
to deportation/removal"; and 4) "[he had] the right to seek legal advice on [his]
immigration status prior to entering a plea of guilty." Defendant also stated that
he did not have any questions concerning the plea. On January 3, 2012, a
judgment of conviction (JOC) was entered against defendant which sentenced
him in accordance with his plea to a four-year prison term concurrent with his
existing term of incarceration. 2
1
For ease of reference we refer only to the last three digits of the indictment
numbers.
2
The record does not contain a copy of the January 3, 2012 sentencing
transcript.
A-5038-18T2
3
On December 20, 2013, defendant filed a PCR petition related to his
conviction and sentence under Indictment No. 407 and his subsequent violation
of probation. Defendant alleged that "but for the misinformation he received
from his trial counsel with regard to the immigration consequences of his guilty
plea, he would not have entered a guilty plea on the original charges." Defendant
further maintained that "that no one explained to him the effect that the plea and
subsequent sentence would have on his status" when he entered the plea for
violation of probation.
On March 31, 2016, the PCR judge granted an evidentiary hearing. In her
accompanying written decision, the judge found that defendant had established
"a prima facie case that his counsel gave material mis-advice . . . regarding his
immigration status and that advice had subsequent material consequences after
pleading guilty and being sentenced on his [violation of probation]." The judge
further concluded that "[t]here [was] circumstantial evidence that defendant
would have viewed deportation as a substantial consequence and that he would
accept the risk of trial in return for the prospect of acquittal and the ability to
remain in the United States."
On April 21, 2016, the PCR judge granted defendant's petition for post-
conviction relief and vacated his sentence under Indictment No. 407 and
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subsequent violation of probation. Defendant later agreed to plead guilty to
criminal trespass and was sentenced to 180 days in county jail and was awarded
180 days of jail credit.
On January 3, 2017, defendant filed a pro-se PCR petition with an
accompanying certification related to the January 3, 2012 JOC for Indictment
Nos. 452 and 166. Defendant certified that his attorney incorrectly told him that
"since [he] had a previous deportable conviction, it didn't make any difference
[if he] accepted another deportable conviction." Defendant also attested that his
attorney failed to inform him that his first sentence was appealable under Rule
3:22. Defendant further stated he voluntarily left the country for his native
Uruguay.
The matter was assigned to the same PCR judge for disposition. On March
10, 2017, the PCR judge issued an order of assignment of counsel in accordance
with Rule 3:22-6A. On March 16, 2018, at the parties' request, the PCR judge
issued an order dismissing defendant's petition for post-conviction relief
"without prejudice for a period of one year." The order also provided that if
defendant decided "to refile his [m]otion for [p]ost-[c]onviction [r]elief within
one year from the date of this [o]rder, the original filing date . . . will apply."
A-5038-18T2
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At some point thereafter, defendant was assigned new counsel who
requested an extension from the March 16, 2018 order to file an amended
petition and a briefing schedule due to his inability to maintain contact with
defendant as he resided in Uruguay. On March 6, 2019, the PCR judge granted
defendant's counsel's request and issued an order requiring defendant to file any
amended petition by April 30, 2019.
Defendant failed to file an amended petition by April 30, 2019.
Nonetheless, with the State's consent, the court granted another extension to
May 30, 2019. Defense counsel again was apparently unable to contact
defendant and subsequently requested "that the petition be withdrawn, resulting
in a dismissal without prejudice, so that if [defendant] was in touch with counsel
or the Office of the Public Defender, his first PCR petition could be refiled."
The State, however, objected and on May 31, 2019, the PCR judge issued an
order dismissing defendant's PCR petition with prejudice and explained:
The court having extended [defendant's] time to file
from April 30, 2019 to May 30, 2019, with prosecutor
consent; the court having considered [defendant's]
counsel's request to withdraw the petition without
prejudice; the state objecting to same; the court having
considered this court's order dated March 16, 2018,
previously dismissing [defendant's] petition without
prejudice and allowing [defendant] an additional year
to file, with prosecutor consent; the court finding that
[defendant] has not shown excusable neglect pursuant
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to [Rule] 3:22-12(a)(1)(A); [Defendant] having been
unable to be located by counsel, with a last known
address in Uruguay; the absence of an amended petition
pursuant to [Rule] 3:22-6A(3); and for good cause
shown.
II.
On appeal, defendant presents the following arguments for our
consideration.
I. AS PETITIONER'S PCR FILING IS TIMELY, NO
EXCUSABLE NEGLECT SHOWING IS
REQUIRED.
II. THE COURT ABUSED ITS DISCRETION BY
DISMISSING [DEFENDANT'S] POST
CONVICTION RELIEF PETITION WITH
PREJUDICE.
A claim for ineffective assistance of counsel must satisfy the two-part test
pronounced in Strickland v. Washington, 466 U.S. 668 (1984), and State v. Fritz,
105 N.J. 42 (1987), by demonstrating that "counsel's performance was
deficient," that is, "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58. This test extends to appellate
counsel as well. State v. Loftin, 191 N.J. 172, 197-98 (2007).
The first prong requires a showing that "counsel's representation fell
below an objective standard of reasonableness." Strickland, 466 U.S. at 688. A
A-5038-18T2
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defendant, however, must overcome a strong presumption that counsel rendered
reasonable professional assistance. Id. at 689. "The test is not whether defense
counsel could have done better, but whether he met the constitutional threshold
for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013). Further, the failure
to raise unsuccessful legal arguments does not constitute ineffective assistance
of counsel. State v. Worlock, 117 N.J. 596, 625 (1990); Strickland, 466 U.S. at
688.
Under the second prong, a defendant must demonstrate that his counsel's
errors prejudiced the defense such as to deprive defendant of a fair and reliable
outcome. Strickland, 466 U.S. at 687. To prove this element, a defendant must
demonstrate "a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id. at 694.
Rule 3:22-12(a)(1) provides "no petition shall be filed pursuant to this rule
more than [five] years after the date of entry pursuant to Rule 3:21-5 of the
judgment of conviction that is being challenged . . . ." See also State v. Riley,
216 N.J. Super. 383, 389 (App. Div. 1987) (noting that the five-year period for
filing commences with the entry of the judgment of conviction). "[A] court may
relax the time bar if the defendant alleges facts demonstrating that the delay was
due to the defendant's excusable neglect or if the 'interests of justice' demand
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it." State v. Milne, 178 N.J. 486, 492 (2004) (quoting State v. Goodwin, 173
N.J. 583, 594 (2002)); see also Rule 3:22-12(a)(1)(A).
Accordingly, "[t]he time bar should be relaxed only 'under exceptional
circumstances' because '[a]s time passes, justice becomes more elusive and the
necessity for preserving finality and certainty of judgments increases.'"
Goodwin, 173 N.J. at 594 (quoting State v. Afanador, 151 N.J. 41, 52 (1997)).
Further, "'[a]bsent compelling, extenuating circumstances, the burden to justify
filing a petition after the five-year period will increase with the extent of the
delay.'" Milne, 178 N.J. at 492 (2004) (quoting Afandor, 151 N.J. at 52).
We agree with defendant that the PCR court erred in dismissing the case
with prejudice as untimely. As noted, defendant filed a timely PCR petition on
January 3, 2017, which was within five years of the JOC for Indictment Nos.
452 and 166, a point the State concedes. In his petition, defendant certified that
his counsel was ineffective because he improperly informed defendant that he
would be deported regardless of whether or not he accepted a plea bargain, and
that counsel did not tell defendant that his first sentence was appealable under
Rule 3:22. Further, nothing in the record before us indicates that the original
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petition was incognizable or that defendant's counsel informed the PCR court
that it contained any deficiencies. R. 3:22-6A(3).3
We acknowledge that the parties consented to dismiss defendant's petition
without prejudice for a period of one year, and that defendant failed to comply
with the time deadlines in the March 16, 2018 and March 6, 2019 orders. We
also understand, however, that defendant is in contact with his appellate counsel
and is prepared to prosecute the petition.
Under the circumstances here, where: 1) a timely petition was filed, 2)
defendant is prepared to prosecute the petition, and 3) the PCR court determined
defendant received ineffective assistance of counsel with respect to an earlier
petition based on similar grounds as alleged here, we conclude the appropriate
course is to remand the matter for the PCR court to address the merits of
defendant's claims. See State v. Odom, 113 N.J. Super. 186, 189 (App. Div.
1971) (noting that "[p]etitions for post-conviction relief cannot be disposed of
out of hand"). On remand, the court shall address the claims in defendant's
3
Rule 3:22-6A(3) provides in part: "[w]here the order of assignment sets forth
reasons that the petition is not cognizable . . . or the Office of the Public
Defender determines that such deficiencies exist and so notifies the court, the
attorney assigned to represent the defendant shall, within 120 days of
assignment, file an amended petition or new application that is cognizable under
[Rule] 3:22-2 and which meets the requirements contained in [Rule] 3:22-
8 . . . ."
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January 3, 2012 petition and certification under the Strickland test.4 Nothing in
our opinion should be construed as suggesting our view on the outcome of the
remanded proceedings.
Reversed and remanded for further proceedings in conformity with this
opinion. We do not retain jurisdiction.
4
We note in addition to concluding defendant's petition was untimely, the PCR
court in its May 31, 2019 order also determined that defendant failed to meet
the excusable neglect standard of Rule 3:22-12(a)(1)(A). The PCR court,
however, failed to provide the factual or legal bases for that determination
contrary to Rule 1:7-4. As we have concluded the PCR court should address the
matter as a timely-filed petition, we do not deem it necessary for the PCR court
to explain further its ruling on the excusable neglect issue.
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