STATE OF NEW JERSEY VS. JULIAN MORALES (10-01-0028, UNION 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NOT FOR PUBLICATION WITHOUT THE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-0036-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIAN MORALES, a/k/a
BENITO GUITERRES,
BEN GUITERRES, BIENGENID
GUTIERRES, DAGOBERTO R.
POZO, BEN GUTIERRES, and
JULIO HERNANDEZ,
Defendant-Appellant.
_______________________________
Submitted October 16, 2018 – Decided November 13, 2018
Before Judges Yannotti and Rothstadt.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 10-01-0028.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (James C. Brady,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from an order entered by the Law Division on Jul y 27,
2017, which denied his petition for post-conviction relief (PCR). We affirm.
A Union County grand jury returned an indictment charging defendant
with first-degree attempted murder of M.S., N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3
(count one); second-degree aggravated assault by causing or attempting to cause
serious bodily injury to M.S., N.J.S.A. 2C:12-1(b)(1) (count two); third-degree
aggravated assault by causing or attempting to cause bodily injury to M.S. with
a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count three); second-degree
aggravated assault by causing or attempting to cause serious bodily injury to
H.P., N.J.S.A. 2C:12-1(b)(1) (count four); third-degree aggravated assault by
causing or attempting to cause bodily injury to H.P. with a deadly weapon,
N.J.S.A. 2C:12-1(b)(2) (count five); second-degree burglary, N.J.S.A. 2C:18-2
(count six); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
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5(d) (count seven); and third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d) (count eight).1
Defendant was tried before a jury. The evidence presented at trial
indicated that M.S. and H.P. resided in separate apartments in the same building
in Elizabeth. H.P. shared his apartment with M.S.'s sister, E.S. M.S. lived on
the second floor, while H.P. and E.S. had a residence on the first floor.
Defendant previously lived at that address with M.S. for about a year, but he
was not residing at that location on the date of the incident that led to the
charges.
M.S. testified that in the early morning hours of July 14, 2009, defendant
came to the building and she found him in the hallway. He was holding a cellular
phone from her room, which he said he was going to sell to get money to
purchase crack cocaine. When M.S. protested, defendant struck her with a box
cutter, slashing her face, neck, arms, and hands.
H.P and M.S. testified that, after hearing the commotion, H.P. came out
of his room. He tried to get defendant to stop attacking M.S. Defendant then
cut H.P. on the hand. M.S. stated that she tried to retreat, but defendant followed
1
We use initials to protect the privacy of the victims and others individuals
involved in this matter.
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her into another room and continued to strike her. M.S. hit defendant with an
empty bottle, but he cut her again. When E.S. said she was going to call the
police, defendant left.
Later, officers from the Elizabeth Police Department and ambulance
responded to the scene. They found M.S.'s injuries were severe. While traveling
in the ambulance to the hospital, M.S. told an officer defendant was her
assailant. H.P. also identified defendant as the perpetrator. M.S. lost about one-
third of her blood in the attack. She was hospitalized for five days and is
permanently scarred.
Defendant testified that on the evening of July 13, 2009, he spoke with
M.S. on the phone. She told him she wanted to see him and spend time with
him. Defendant went to Elizabeth and waited at his son's house until M.S. called
him around 1:00 a.m. When defendant arrived, he knocked on the window and
M.S. let him in the front door. He claimed he paid M.S. $80 and they had sexual
relations.
Afterwards, defendant and M.S. went downstairs. M.S. knocked on E.S.'s
door. According to defendant, H.P. attacked him and cut him. Defendant said
he ran from the apartment and met up with a person named "Melissa." He did
not, however, call "Melissa" as a witness.
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The jury found defendant guilty of aggravated assault upon M.S. (count
two), aggravated assault upon M.S. and H.P. with a deadly weapon (counts three
and five), possession of a weapon for an unlawful purpose (count seven), and
unlawful possession of a weapon (count eight). The jury found defendant not
guilty of aggravated assault upon H.P., but guilty of the lesser -included
disorderly persons offense of simple assault, N.J.S.A. 2C:12-1(a)(1) (count
four). In addition, the jury found defendant not guilty of attempted murder
(count one) and burglary (count six).
The trial judge granted the State's motion for an extended term. The judge
merged counts three, seven, and eight with count two and sentenced defendant
on count two to seventeen years of imprisonment, with an eighty-five percent
period of parole ineligibility, pursuant to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. The judge also merged count four with count five and
sentenced defendant on count five to a five-year term of imprisonment, with
twenty-four months of parole ineligibility, to run consecutively to the sentence
on count two.
In addition, the judge imposed various fees and monetary penalties. At
sentencing, the judge stated on the record that he was imposing monetary
penalties under N.J.S.A. 2C:43-3.1(a)(1). Such penalties are imposed on
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persons convicted of crimes of violence, and any monies paid are forwarded to
the Victims of Crime Compensation Board (the V.C.C.B. penalties). N.J.S.A.
2C:43-3.1(a)(1) to (3).
The judge stated he was imposing a $1000 penalty for the second-degree
aggravated assault upon M.S. (count two), and a $50 penalty for the third-degree
aggravated assault on H.P. (count five). However, the judgment of conviction
(JOC) stated that the court had imposed a $50 penalty on both counts.
Defendant appealed from the JOC and raised the following arguments:
POINT I
THE ASSISTANT PROSECUTOR'S SUMMATION
TO THE JURY IMPROPERLY ASKED THE JURORS
TO FIND THAT DEFENDANT'S VERSION OF THE
EVENTS IN QUESTION WAS NOT BELIEVABLE
BECAUSE DEFENDANT "HAS SPENT NEARLY
[TWENTY-FIVE] OF THE PAST [THIRTY] YEARS
INCARCERATED IN EITHER STATE OR FEDERAL
PENITENTIARIES." WHILE A DEFENDANT'S
CREDIBILITY MAY BE IMPEACHED WITH HIS
PRIOR RECORD, THE AMOUNT OF TIME HE HAS
ACTUALLY SPENT IN PRISON IS NOT A PROPER
CONSIDERATION FOR THE JURY; MOREOVER,
EVEN IF IT WERE, THE RECORD DOES NOT
SUPPORT THE CLAIM OF THE STATE, AND THE
PROSECUTOR'S ARGUMENT IMPROPERLY
ASKED THE JURY TO CONSIDER DEFENDANT'S
PRETRIAL DETENTION IN THIS CASE AGAINST
HIS CREDIBILITY. (NOT RAISED BELOW).
POINT II
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THE SENTENCE IMPOSED IS MANIFESTLY
EXCESSIVE.
In addition, defendant has filed a supplemental pro se brief and raised the
following argument:
THE PROSECUTOR'S UNDULY PREJUDICIAL
REMARKS CONSTITUTE REVERSIBLE ERROR.
We affirmed defendant's conviction and sentence in all respects except for
V.C.C.B. penalties. State v. Morales, No. A-1704-12 (App. Div. Nov. 13, 2015)
(slip op. at 19-20). We remanded the matter to the trial court for a hearing to
determine the V.C.C.B. penalty to be imposed on each count, and allowed the
parties to renew their arguments about defendant's ability to pay a V.C.C.B.
penalty above the mandatory minimum. Id. at 19. Thereafter, defendant filed a
petition for certification with the Supreme Court of New Jersey. The Court
denied the petition. State v. Morales, 224 N.J. 247 (2016).
On August 15, 2016, defendant filed a PCR petition, alleging he was
denied the effective assistance of trial counsel. He claimed his attorney was
ineffective because he failed to: (1) inspect the crime scene; (2) locate and
interview witnesses; and (3) investigate the matter properly so he could raise an
affirmative defense of self-defense. He sought an evidentiary hearing on the
petition. The court appointed counsel to represent defendant, and on July 21,
2017, Judge John M. Deitch heard oral argument on the petition.
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On July 27, 2017, Judge Deitch filed an order and written opinion in which
he concluded that: (1) the petition was timely filed; (2) the claims were not
barred by Rule 3:22-5; and (3) defendant was not entitled to an evidentiary
hearing because he had not presented a prima facie case of ineffective assistance
of counsel. In his opinion, the judge noted that the dispute concerning the
V.C.C.B. penalties had been resolved by the parties. This appeal followed.
On appeal, defendant argues he is entitled to an evidentiary hearing
because his attorney rendered ineffective assistance by failing to investigate and
present a complete defense. Defendant has filed a supplemental pro se brief, in
which he argues that the PCR court erred by failing to address his claim that the
trial court failed to conduct a hearing to determine the V.C.C.B. penalties that
should be imposed on counts two and five, as required by our decision on his
direct appeal.
Our court rules provide that the PCR court should conduct an evidentiary
hearing if the defendant presents a prima facie case in support of PCR, there are
material issues of fact that cannot be resolved based on the existing record, and
the court finds that an evidentiary hearing is required to resolve the claims
presented. R. 3:22-10(b); see also State v. Porter, 216 N.J. 343, 354 (2013)
(citing R. 3:22-10(b)). "To establish a prima facie case, defendant must
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demonstrate a reasonable likelihood that his or her claim, viewing the facts
alleged in the light most favorable to the defendant, will ultimately succeed on
the merits." R. 3:22-10(b).
Where, as in this case, a defendant asserts a claim of ineffective assistance
of counsel, the defendant must satisfy the two-part test established in Strickland
v. Washington, 466 U.S. 668, 687 (1984), and later adopted by our Supreme
Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under the test, a defendant first
must "show that counsel's performance was deficient." Strickland, 466 U.S. at
687. To do so, the defendant must establish that counsel's performance "fell
below an objective standard of reasonableness" and that "counsel made errors
so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id. at 687-88.
Defendant also must establish that "the deficient performance prejudiced
the defense." Id. at 687. To establish prejudice, "[t]he defendant must show
that there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome" of the matter.
Id. at 694.
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Here, defendant argues that his trial attorney was deficient because he
failed to inspect the crime scene or interview witnesses. He contends that, as a
result of counsel's deficient performance, he was precluded from asserting a
claim of self-defense and was forced to present a defense of third-party guilt by
H.P. Defendant asserts that he was injured during the incident and claims he
had a "viable" self-defense claim.
In his opinion, Judge Deitch noted that a claim of ineffective assistance of
counsel can be based on an attorney's failure to conduct an adequate pre-trial
investigation. See State v. Preciose, 129 N.J. 451, 464 (1992); State v.
Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002). Indeed, "[c]ounsel has a
duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary." State v. Chew, 179 N.J. 186, 217
(2004) (quoting Strickland, 466 U.S. at 691). The failure to do so will "render
the lawyer's performance deficient." Ibid. (quoting State v. Savage, 120 N.J.
594, 618 (1990)).
Nevertheless, when a defendant claims his attorney failed to investigate
his case adequately, the defendant "must assert the facts that an investigation
would have revealed, supported by affidavits or certifications based upon the
personal knowledge of the affiant or the person making the certification." State
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v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (citing R. 1:6-6). "To
establish a prima facie claim, a [defendant] must do more than make bald
assertions that he was denied the effective assistance of counsel." Ibid.In his opinion, the judge noted that defendant alleged his attorney was
ineffective for failing to investigate the crime scene, but he failed to present the
court with any affidavits or certifications detailing what trial counsel would have
found if he conducted such an investigation. Defendant also failed to identify
the witnesses counsel should have located or interviewed, or what information
those witnesses would have provided to the defense.
The judge also found that defendant claimed his attorney's failure to
investigate precluded him from arguing self-defense, but defendant's own trial
testimony was inconsistent with any claim of self-defense. The judge noted that,
at trial, defendant testified that he did not attack M.S. and he only fell on H.P.
after he was cut. Defendant also denied that he was in possession of any weapon
on the night the offenses were committed.
The judge stated, however, that defense counsel sought and the trial judge
granted defendant's request on self-defense with regard to the counts charging
offenses involving H.P. The judge pointed out that defendant had not come
forward with any proofs to show that he was entitled to a self-defense charge
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with regard to other counts. Moreover, defendant failed to show that any
deficiency on the part of his attorney affected the outcome of the trial.
The judge observed, "The jury was free to consider self-defense on the
lesser-included offense of simple assault and rejected that theory when they
found [defendant] guilty. Therefore, it seems improbable that the jury would
have accepted the defense on any of the more serious offenses."
We are convinced the record supports the judge's finding that defendant
failed to present a prima facie case of ineffective assistance of counsel. We
conclude the court correctly determined that defendant was not entitled to an
evidentiary hearing on his petition.
In his supplemental pro se brief, defendant contends the PCR court erred
by failing to address his claim regarding the V.C.C.B. penalties. However, as
we pointed out previously, the issue was addressed in the judge's opinion. The
judge wrote, "The parties have . . . reached a stipulation as to the appropriate
fines, a consent order was entered, and the [JOC] has been amended." The
consent order provides that defendant agreed the court would impose a $100
V.C.C.B. penalty on both counts two and five, and the JOC has been amended
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accordingly. Thus, the issue raised as to the V.C.C.B. penalties is moot.
Affirmed.
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