C.O. VS. PINE HILL SCHOOL DISTRICT BOARD OF EDUCATION VS. D.C.M.(L-4862-13, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-2167-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JESSIE SEPULVEDA, a/k/a JESSY
SEPULVEDA, ORTIZ CRUZ, JESSE
SANCHEZ, JOSHUA SANCHEZ, JESSIE
SEPOLVEDA, and JESSIEL SEPULVEDA,
Defendant-Appellant.
____________________________________
Submitted January 31, 2017 – Decided February 28, 2017
Before Judges Reisner and Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment No. 05-09-3493.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Robin A. Hamett,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Jessie Sepulveda appeals from a December 4, 2015
order denying his petition for post-conviction relief (PCR). In
a lengthy oral opinion issued on the same date, the PCR judge
found that the petition was untimely under Rule 3:22-12, and that
one of defendant's contentions was barred by Rule 3:22-5. However,
the judge also thoroughly considered and addressed the merits of
all of defendant's PCR arguments.
In 2008, defendant was convicted of first-degree murder of a
child under the age of fourteen, N.J.S.A. 2C:11-3(a)(1), (2), and
associated offenses, and was sentenced to a term of life in prison
without parole. The trial evidence was discussed at length in our
opinion affirming his conviction on direct appeal, State v.
Sepulveda, A-1024-10 (App. Div. Oct. 28, 2013), and in the PCR
judge's opinion.
In summary, two eyewitnesses testified that defendant shot a
twelve-year-old boy, in an unprovoked attack. One of the
eyewitnesses also testified that defendant later tried to
intimidate him into not testifying against defendant at the trial.
As corroboration, this witness produced letters which, he stated,
were written by defendant. A third witness, who was the brother
of one of the eyewitnesses, testified that defendant admitted to
him that he killed the victim.
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The defense did not present witnesses. Instead, defense
counsel sought to discredit the two eyewitnesses by eliciting
admissions that they were both drug dealers, and by asserting that
they had obtained lenient plea agreements in return for their
testimony. The defense also argued to the jury that one of the
eyewitnesses was actually the shooter. Because the eyewitnesses
were involved in dealing drugs with defendant, the defense strategy
necessarily involved placing before the jury the fact that
defendant was also involved in selling drugs. In fact, during
jury selection, defense counsel acknowledged that he was likely
to pursue that strategy and that he understood that the jurors
needed to be questioned to be sure they could be fair despite
hearing the information about defendant selling drugs.
On his direct appeal, defendant raised the following issues,
which included the prejudicial effect of the jury hearing about
defendant's other crimes and one reference to his prior
incarceration:
POINT I: THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF, IN PART, UPON
PROCEDURAL GROUNDS PURSUANT TO RULE
3:22-12.
POINT II: THE TRIAL COUTR ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO FULLY
ADDRESS HIS CONTENTION THAT HE
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FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL
PRINCIPLES OF INEFFECTIVE
ASSISTANTCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR POST
CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF TRIAL
COUNSEL'S FAILURE TO OBJECT TO THE
HIGHLY PREJUDICIAL AND CLEARLY
INADMISSIBLE TESTIMONY ELICITED BY
THE STATE INDICATING THE DEFENDANT
HAD PREVIOUSLY BEEN INCARCERATED.
C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF TRIAL
COUNSEL'S FAILURE TO OBJECT TO
TESTIMONY ELICITED BY THE STATE
INDICATING THE DEFENDANT WAS
INVOLVED IN THE DISTRIBUTION OF
DRUGS, AS WELL AS BY AFFIRMATIVELY
ELICITING SIMILAR TESTIMONY DURING
CROSS-EXAMINATION OF SEVERAL
STATE'S WITNESSES.
POINT III: THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF, IN PART, ON
PROCEDURAL GROUNDS PURSUANT TO RULE
3:22-5.
We rejected those arguments, noting that eliciting the
information about drug dealing was part of the defense strategy.
We also concluded that any error by the court in failing to sua
sponte give the jury limiting instructions "was nevertheless
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harmless because the evidence against Sepulveda was overwhelming."
Sepulveda, supra, slip op. at 8.
In his PCR petition, defendant raised similar arguments,
couched in terms of the alleged ineffectiveness of his trial
counsel in either eliciting the information or in failing to object
to it. As previously noted, the PCR judge rejected those arguments
in a thorough oral opinion.
On this appeal, defendant raises the following issues:
POINT I: THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF, IN PART, UPON PROCEDURAL GROUNDS
PURSUANT TO RULE 3:22-12
POINT II: THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION AT THE TRIAL LEVEL
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR POST
CONVICTION RELIEF
B. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF TRIAL
COUNSEL'S FAILURE TO OBJECT TO THE
HIGHLY PREJUDICIAL AND CLEARLY
INADMISSIBLE TESTIMONY ELICITED BY
THE STATE INDICATING THE DEFENDANT
HAD PREVIOUSLY BEEN INCARCERATED
C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
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TRIAL COUNSEL AS A RESULT OF TRIAL
COUNSEL'S FAILURE TO OBJECT TO
TESTIMONY ELICITED BY THE STATE
INDICATING THE DEFENDANT WAS
INVOLVED IN THE DISTRIBUTION OF
DRUGS, AS WELL AS BY AFFIRMATIVELY
ELICITING SIMILAR TESTIMONY DURING
CROSS-EXAMINATION OF SEVERAL
WITNESSES
POINT III: THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF, IN PART, ON PROCEDURAL GROUNDS
PURSUANT TO RULE 3:22-5
We agree with defendant that in this case, Rule 3:22-5 did
not bar the arguments raised in his petition because defense
counsel's alleged ineffectiveness in eliciting prejudicial
information is a different issue from the trial judge's alleged
error in failing to give a limiting instruction about that
information. See State v. Afanador, 151 N.J. 41, 51 (1997).
However, we conclude that the PCR judge reached the correct result,
because defendant's underlying arguments are without merit. After
reviewing the trial transcript, we find that defense counsel did
a zealous, thorough and effective job of representing defendant.
We cannot conclude that defense counsel rendered ineffective
assistance, merely because his chosen strategy was unsuccessful.
See State v. Echols, 199 N.J. 344, 358 (2009). Additionally, in
light of the State's overwhelming evidence of defendant's guilt,
even if defendant could establish the first Strickland prong -
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ineffective assistance - he could not establish the second prong
- that counsel's errors prejudiced the defense. See Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.
2d 674, 698 (1984).
With the exception noted above, we affirm for the reasons
stated by the PCR judge. Defendant's appellate contentions do not
warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
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