                        NOT FOR PUBLICATION WITHOUT THE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.



                                       2                               A-2167-15T2
     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

                                     3                                   A-2167-15T2
                       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



                                         4                              A-2167-15T2
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

                                5                           A-2167-15T2
                          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 -


                                         6                             A-2167-15T2
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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