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

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). 

NOT FOR PUBLICATION WITHOUT THE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.

February 1, 2021
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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. 4521and 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. 
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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 postconviction 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."
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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 
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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 
10 A-5038-18T2

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 . . . ." 
11 A-5038-18T2

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.