RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1830-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.Y.B.,

Defendant-Appellant.

_______________________

Submitted March 16, 2021 – Decided May 17, 2021

Before Judges Gilson and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Accusation No. 14-08-0269.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on the 

brief).

Theodore N. Stephens, II, Acting Essex County 

Prosecutor, attorney for respondent (Hannah F. Kurt, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant A.Y.B. appeals from a September 25, 2019 order denying his 

petition for post-conviction relief (PCR).1 He argues that his plea counsel was 

ineffective in misadvising him that if he were found guilty of all charges at trial, 

the sentences would be run consecutively. He also contends that his sentencing 

counsel was ineffective in failing to argue for a lower sentence. We reject these 

arguments and affirm.

I.

In 2014, defendant was indicted for first-degree aggravated sexual assault, 

N.J.S.A. 2C:14-2(a)(1); three counts of second-degree sexual assault, N.J.S.A. 

2C:14-2(c)(1) and -2(b); and third-degree endangering the welfare of a child, 

N.J.S.A. 2C:24-4(a). Those charges arose out of an incident during which

defendant, who was then eighteen years old, forced a ten-year-old girl out of a 

baptism party, took her to a secluded area, pulled her underwear down, and 

penetrated her vagina with his penis. After the victim made her disclosure, she 

was physically examined at a hospital and DNA material from a buccal swab

matched the profile of a DNA sample obtained from defendant.

1 We use initials because this case involves the sexual assault of a child. R.

1:38-3(c)(9).
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In August 2014, defendant pled guilty to first-degree aggravated sexual 

assault. He admitted he had sexually penetrated the victim with his penis. In 

pleading guilty, defendant acknowledged that he knew the victim was ten years 

old, but he claimed that at the time of the assault he thought she was twenty 

years old. 

Defendant was ordered to undergo an evaluation as a sex offender. See

N.J.S.A. 2C:47-1. Accordingly, he was evaluated at the Adult Diagnostic and 

Treatment Center by a licensed psychologist and a confidential report on that 

evaluation was issued under a letter dated February 26, 2015.

After defendant pled guilty, he was assigned a new attorney from the 

Public Defender's Office. In March 2015, defendant's new attorney filed a 

motion to withdraw his guilty plea. On June 16, 2015, that motion was denied. 

That same day, defendant was sentenced.

In accordance with his plea agreement, defendant was sentenced to ten 

years in prison with a period of parole ineligibility as prescribed by the No Early 

Release Act, N.J.S.A. 2C:43-7.2. Defendant was also sentenced to parole 

supervision for life, N.J.S.A. 2C:43-6.4, and reporting requirements under 

Megan's Law, N.J.S.A. 2C:7-1 to -19. 
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Defendant did not file a direct appeal. Instead, in September 2018, 

defendant filed a petition for PCR. He was assigned PCR counsel and counsel 

filed supplemental papers on his behalf. On August 9, 2019, the PCR court 

heard oral arguments. Thereafter, on September 25, 2019, the PCR court denied 

the petition and issued an order and written opinion.

The PCR court held that defendant's arguments about his sentencing were 

procedurally barred because he did not raise them in a direct appeal. 

Nevertheless, the court went on to consider and reject the substance of the 

arguments, finding that defendant had not satisfied either prong of the Strickland

test. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The PCR court 

also found that defendant had failed to show any prejudice from his counsel's

alleged misadvice that he could be subject to consecutive sentences. 

Accordingly, the PCR court found that defendant was not entitled to an 

evidentiary hearing. 

II.

On appeal, defendant argues:

[DEFENDANT] IS ENTITLED TO AN 

EVIDENTIARY HEARING ON HIS CLAIM THAT 

HIS ATTORNEY RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL FOR FAILING TO 

ADVOCATE FOR HIM AT SENTENCING AND FOR 
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PROVIDING MISINFORMATION THAT LED TO 

AN UNINFORMED PLEA.

We use a de novo standard of review when a PCR court does not conduct 

an evidentiary hearing. State v. Harris, 181 N.J. 391, 419 (2004). The decision 

to proceed without an evidentiary hearing is reviewed for an abuse of discretion. 

State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). 

To establish a claim of ineffective assistance of counsel, a defendant must 

satisfy the two-part Strickland test: (1) "counsel made errors so serious that 

counsel was not functioning as the 'counsel' guaranteed the defendant by the 

Sixth Amendment[,]" and (2) "the deficient performance prejudiced the 

defense." Strickland, 466 U.S. at 687; accord State v. Fritz, 105 N.J. 42, 57-58 

(1987). On petitions brought by a defendant who has entered a guilty plea, 

defendant satisfies the first Strickland prong if he or she can show that counsel's 

representation fell short of the prevailing norms of the legal community. Padilla 

v. Kentucky, 559 U.S. 356, 366-67 (2010). Defendant proves the second 

component of Strickland by establishing "a reasonable probability that" 

defendant "would not have pled guilty," but for counsel's errors. State v. Gaitan, 

209 N.J. 339, 351 (2012) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 

(2009)). 
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Defendant's argument concerning alleged misadvice given by his plea 

counsel fails to satisfy the second prong of the Strickland test. Defendant was 

indicted for five crimes: first-degree aggravated sexual assault, three counts of 

second-degree sexual assault, and third-degree endangering the welfare of a 

child. While it is unlikely that all those crimes would have been sentenced

consecutively had defendant been convicted at trial, defendant still received a 

favorable plea agreement. Defendant pled guilty to the first-degree crime and 

the State agreed to recommend the lowest possible sentence of ten years

imprisonment. Given that defendant could have been sentenced to up to twenty 

years in prison, see N.J.S.A. 2C:43-6(a)(1), he has made no showing that there 

was a reasonable probability that he would not have pled guilty. 2

Moreover, the record establishes that defendant understood the terms of 

his plea agreement and agreed to them. Before pleading guilty, the terms of the 

plea agreement were explained to defendant and he testified that he understood 

those terms and that he wanted to plead guilty under those terms. Accordingly, 

we also reject defendant's contention that his plea was defective because the

2

 Effective May 15, 2014, N.J.S.A. 2C:14-2(a) was amended, and subsection 

(d) was added to provide for a mandatory term of imprisonment where the victim 

is under thirteen years of age, subject to a negotiated reduction that cannot be 

less than fifteen years in prison. L. 2014, c. 7, § 1. Defendant committed his

crime before that amendment took effect.
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alleged misadvice prevented him from entering a knowing and intelligent plea. 

Defendant's argument concerning the failure of his counsel to argue for a 

lower sentence is without sufficient merit to warrant discussion in a written 

opinion. See R. 2:11-3(e)(2). Nevertheless, we add some brief comments 

concerning that argument.

Normally, arguments concerning sentencing are "not cognizable claims 

on post-conviction relief" because they relate to the excessiveness of the 

sentence rather than its legality. State v. Acevedo, 205 N.J. 40, 46-47 (2011) 

(citing State v. Flores, 228 N.J. Super. 586, 596-97 (App. Div. 1988)). 

Accordingly, sentencing arguments usually must be raised on direct appeal.

In addition, defendant was sentenced in accordance with the negotiated 

plea agreement. Defendant has made no showing that counsel had a reasonable 

chance of convincing the sentencing court to grant the extraordinary relief of 

sentencing defendant below the minimum sentence for a first-degree crime. See

N.J.S.A. 2C:44-1(f)(2); State v. Megargel, 143 N.J. 484, 495 (1996) (explaining 

that to downgrade a sentence, the "sentencing judge must be (1) clearly 

convinced that the mitigating factors substantially outweigh the aggravating 

factors and (2) the interest of justice must demand the downgrade").

Affirmed.