STATE OF NEW JERSEY VS. JUAN A. GUADALUPE (77-09-0009, SALEM COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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 l imited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0199-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUAN A. GUADALUPE,
Defendant-Appellant.
_______________________________
Submitted June 5, 2019 - Decided June 14, 2019
Before Judges Accurso and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Salem County, Indictment No. 77-09-0009.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
John T. Lenahan, Salem County Prosecutor, attorney
for respondent (David M. Galemba, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Juan A. Guadalupe appeals from the denial of his petition for
post-conviction relief, contending he established a prima facie case of
ineffective assistance of counsel requiring an evidentiary hearing. Because the
trial judge correctly determined the evidence insufficient to sustain defendant's
burden, we affirm.
Defendant was convicted by a jury in 2012 of conspiracy to commit
rape, N.J.S.A. 2A:98-1, and kidnapping, N.J.S.A. 2A:118-1, in connection
with the sexual assault of a nineteen-year-old woman biking on a country road
in Alloway Township in 1977. His co-defendant was arrested shortly after the
crimes were reported and spent thirty-five years in prison for his role in the
attack. Defendant fled New Jersey shortly after the crimes and was finally
apprehended in Puerto Rico in 2011 on an open warrant following a routine
traffic stop. Finding aggravating factors three, the risk defendant would
commit another offense, and nine, the need to deter, N.J.S.A. 2C:44-1(a)(3)
and (9), outweighed mitigating factor seven, defendant's minimal criminal
record, N.J.S.A. 2C:44-1(b)(7), the judge sentenced defendant to an aggregate
term of thirty years in State prison. We affirmed defendant's conviction, State
v. Guadalupe, No. A-3333-12 (App. Div. Oct. 3, 2014), and the Supreme Court
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denied defendant's petition for certification, State v. Guadalupe, 221 N.J. 219(2015).
In his petition for post-conviction relief, defendant claimed, among other
things, that his trial counsel was ineffective for failure to have moved to
dismiss the indictment or bar the entry of judgment on grounds of fundamental
fairness. He also contended his counsel failed to investigate or present
mitigating factors at sentencing.
After hearing argument by assigned counsel, Judge Lawhun issued a
comprehensive written opinion denying the petition on the basis that defendant
had failed to establish a prima facie claim for relief. See State v. Preciose, 129
N.J. 451, 462-64 (1992). The judge noted defendant's trial counsel had moved
to dismiss the indictment on speedy trial grounds, which she determined was
substantially equivalent to the motion defendant asserted his counsel should
have made. Moreover, the judge found nothing in the record or counsel's
arguments to suggest a motion to dismiss based on fundamental fairness had
any reasonable chance of success. See State v. Fisher, 156 N.J. 494, 501
(1998) (noting a defendant arguing his counsel was ineffective for failure to
file a motion must demonstrate the claim he argues should have been asserted
is meritorious).
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As for the failure to present mitigating factors at sentencing, defendant
argued his counsel was ineffective for failing to urge mitigating factor eight,
that defendant's conduct was the result of circumstances unlikely to recur,
N.J.S.A. 2C:44-1(b)(8), and mitigating factor nine, the character and attitude
of defendant indicate that he is unlikely to commit another offense, N.J.S.A.
2C:44-1(b)(9). Defendant further argued his counsel should have argued that
aggravating factor three, the risk defendant would commit another offense,
N.J.S.A. 2C:44-1(a)(3), should not have been applied based on defendant's
acknowledgment of two convictions in Puerto Rico in his pre-sentence
interview instead of on the basis of certified records of those convictions.
The judge found defendant's claim his counsel was ineffective at
sentencing to be procedurally barred under Rule 3:22-4, because no argument
as to defendant's sentence was presented on direct appeal. Considering the
claim on the merits notwithstanding, the judge noted defendant's trial counsel
filed a sentencing memorandum in which he argued "several substantial
mitigating circumstances in support of a lesser sentence." The judge thus
rejected defendant's reliance on State v. Hess, 207 N.J. 123 (2011), finding it
inapplicable because there the Court found sentencing counsel ineffective for
failing to argue anything in mitigation, including the considerable evidence
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available that the defendant "was a physically and psychologically battered
woman, who had been threatened and had feared for her life," id. at 138.
Because defendant could not show his counsel was ineffective under the first
prong of the Strickland test, the judge did not consider the second prong. See
Strickland v. Washington, 466 U.S. 668, 697 (1984) (noting a court need not
address both prongs "if the defendant makes an insufficient showing on one").
On appeal, defendant reprises his arguments about his counsel's
ineffectiveness at sentencing in a single point:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR FAILING TO INVESTIGATE AND RAISE
APPLICABLE MITIGATING FACTORS.
We reject his argument as without sufficient merit to warrant discussion
in a written opinion, R. 2:11-3(e)(2), and affirm the denial of defendant's
petition substantially for the reasons set forth in Judge Lawhun's August 2,
2017 cogent and well-reasoned written opinion. We add only that the
mitigating factors defendant claims his counsel failed to raise were merely
variations on the theme his counsel strenuously asserted to the sentencing
court, that is that defendant had lived a law-abiding life in the thirty-four years
following the crimes and had addressed the substance abuse problem he
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suffered when he committed them. The State argued the court should reject
any notion of defendant having lived a law-abiding life after he assaulted the
victim because defendant was a fugitive for those years. The sentencing judge
acknowledged both arguments and gave moderate weight to that mitigating
factor, finding it outweighed by the moderate weight accorded to the
likelihood that defendant would commit another offense and the substantial
weight given to the need to deter. We cannot find any prejudice to defendant
by his counsel's failure to assert the specific mitigating factors his counsel did
not raise at sentencing. See Strickland, 466 U.S. at 694 (noting defendant's
burden to show "a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different").
Affirmed.
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