STATE OF NEW JERSEY VS. JAMIE GUAMAN

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.

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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 Yarbough1 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.

1 State v. Yarbough, 100 N.J. 627 (1985).

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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

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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

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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.



Affirmed.