Opinion
DOCKET NO. A-3695-13T2
04-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMIE GUAMAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1400. Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jamie Guaman appeals from a February 7, 2014 order denying his petition for post-conviction relief (PCR). We affirm.
We set forth the relevant facts of this case in our prior opinion, State v. Guaman, No. A-3928-06 (App. Div. Nov. 5, 2009) (slip op. at 3-5), certif. denied, 203 N.J. 94 (2010), and need not repeat them here. To summarize, on February 24, 2003, defendant and two co-conspirators kidnapped a woman off the street in Newark, drove her to a secluded area, and gang-raped her in their van. Police apprehended defendant shortly thereafter.
In January 2006, a jury found defendant guilty of second-degree conspiracy to commit aggravated sexual assault, N.J.S.A. 2C:5-2 and 2C:14-2(a)(3); first-degree aggravated sexual assault through the use of force or coercion while aided or abetted by another, N.J.S.A. 2C:14-2(a)(5); first-degree aggravated sexual assault during the commission of a kidnapping, N.J.S.A. 2C:14-2(a)(3); first-degree kidnapping with the purpose to facilitate a sexual assault, N.J.S.A. 2C:13-1(b)(1); and third-degree criminal restraint, N.J.S.A. 2C:13-2.
At sentencing, the conspiracy conviction was merged with one of the aggravated sexual assault convictions, and the criminal restraint conviction was merged with the kidnapping conviction. The judge imposed two concurrent fifteen-year sentences for the aggravated sexual assault convictions, and a consecutive twenty-year sentence for the kidnapping conviction. Each sentence included an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA). N.J.S.A. 2C:43-7.2.
On direct appeal, defendant raised the following issues:
POINT I
THE INTRODUCTION OF INADMISSIBLE EXPERT TESTIMONY DENIED THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST., ART. I, ¶¶ 1, 9, AND 10. (Not Raised Below)
POINT II
THE IMPOSITION OF CONSECUTIVE SENTENCES ON THE KIDNAPPING AND AGGRAVATED SEXUAL ASSAULT COUNTS WAS NOT JUSTIFIED AND LED TO AN OVERALL SENTENCE THAT WAS MANIFESTLY EXCESSIVE.
We rejected these arguments and affirmed defendant's conviction. However, we remanded for resentencing, instructing the trial judge to "analyze all of the relevant Yarbough factors in light of the factual findings announced by the jury through its verdict." Guaman, supra, slip op. at 12 (footnote added). The Supreme Court denied certification. State v. Guaman, 203 N.J. 94 (2010). Defendant's sentence did not change following remand, and on June 8, 2012, we affirmed the sentence on our Excessive Sentencing Oral Argument calendar.
On March 14, 2013, defendant filed a PCR petition, asserting ineffective assistance of counsel and citing seven different manners in which he claimed his trial counsel was deficient. Judge Siobhan A. Teare concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel. Accordingly, Judge Teare entered an order denying defendant's PCR petition without an evidentiary hearing.
This appeal followed. Defendant asserts the following argument for our consideration:
POINT I
THE PCR COURT ABUSED ITS DISCRETION BY REFUSING TO HOLD AN EVIDENTIARY HEARING BECAUSE THE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
Having reviewed the record in its entirety, we find defendant's claims of ineffective assistance of counsel to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the same reasons stated in Judge Teare's cogent oral opinion issued from the bench on February 7, 2014. We add the following comments.
At trial, defendant claimed that the victim voluntarily entered the van, drank beer with him and his co-conspirators, and agreed to have consensual sex with them in exchange for $100. Defendant now claims that his representation at trial was objectively deficient because his attorney failed to secure beer bottles from the van as evidence. Defendant purports that DNA testing of these beer bottles would support his version of the events by revealing that the victim had been voluntarily drinking beer with him and his co-conspirators prior to the sexual activity that occurred in the van.
The record indicates that defendant's counsel vigorously advocated for defendant's theory of the case at trial. Rather than recovering three-year-old beer bottles and perform testing, which may or may not have revealed the victim's DNA, defendant's counsel chose to cast doubt on the credibility of the investigation. During cross-examination of one of the police officers involved with the investigation, defense counsel elicited testimony revealing that the police failed to complete any investigation or analysis of the beer bottles at all. We agree with Judge Teare that this line of questioning, as well as the decision not to secure the beer bottles, are matters of trial strategy, and should be accorded great deference on review. See State v. Biegenwald, 126 N.J. 1, 56 (1991).
Defendant also claims that his counsel failed to conduct an adequate pretrial investigation. However, defendant has not supplied any affidavits, certifications, or other competent evidence to support his claim that trial counsel inadequately investigated his case. Without any corresponding evidence whatsoever, defendant's bald assertions are insufficient to establish a prima facie case of ineffectiveness. See State v. Jones, 219 N.J. 298, 311-12 (2014). Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required in this matter. State v. Porter, 216 N.J. 343, 354 (2013) (citing State v. Preciose, 129 N.J. 451, 462-63 (1992)); R. 3:22-10(b).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
State v. Yarbough, 100 N.J. 627 (1985).