RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2245-20 STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE D. BENAVIDEZ, Defendant-Appellant. _______________________ Submitted September 21, 2022 – Decided October 4, 2022 Before Judges Accurso and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 17-04-0349. Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Jose D. Benavidez pleaded guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), pursuant to a plea agreement with the State. The court denied his motion to withdraw his plea and imposed sentence in accordance with the plea agreement. On his direct appeal, an Excessive Sentence Oral Argument (ESOA) panel affirmed defendant's sentence and the order denying his plea withdrawal motion. State v. Benavidez, No. A-4612-18 (App. Div. Jan. 8, 2020). Defendant filed a post-conviction relief (PCR) petition asserting his appellate counsel was ineffective by allowing the appeal from the order denying his plea withdrawal motion to be heard on the ESOA calendar and by failing to offer argument before the ESOA panel challenging the denial of his plea withdrawal motion. He appeals from the order denying his PCR petition. Unpersuaded by his contention the PCR court erred, we affirm. I. A grand jury charged defendant in an indictment with first-degree aggravated assault, N.J.S.A. 2C:14-2(a)(l) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1) (count three). Under count one, A-2245-20 2 defendant's sentencing exposure was within a range of between twenty-five years term and life imprisonment. N.J.S.A. 2C:14-2(a)(7). Defendant pleaded guilty to first-degree aggravated sexual assault under count one pursuant to a plea bargain with the State. The State agreed to recommend an eight-year sentence, which is within the range for a second- degree offense, N.J.S.A. 2C:43-6(a)(2), subject to the requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2, Megan's Law, N.J.S.A. 2C:7-1 to -23, and the conditions of parole supervision for life, N.J.S.A. 2C:43-6.4. During his plea proceeding, defendant testified that between January 23, 2014, and January 22, 2016, he penetrated the vagina of his wife's six-year-old granddaughter with his finger. He admitted the penetration occurred "in a sexual manner" and not for any legitimate purpose, such as cleaning or providing medical care to the child. Defendant testified he was not forced or threatened to plead guilty, he did so of his "own free will," and he was "guilty" of the offense to which he pleaded. He further testified he "went through all the discovery with [his] lawyer," …
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