                                 NOT FOR PUBLICATION WITHOUT THE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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                                        2
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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                                        3
      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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                                        4
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

                                                                           A-0199-17T4
                                         5
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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