STATE OF NEW JERSEY VS. ADONIS SEPULVEDA (14-12-1883, BERGEN COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-0403-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ADONIS SEPULVEDA,

     Defendant-Appellant.
_______________________

                   Submitted February 10, 2021 – Decided May 18, 2021

                   Before Judges Alvarez and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 14-12-1883.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Suzannah Brown, Designated Counsel, on
                   the brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (William P. Miller, Assistant Prosecutor, of
                   counsel and on the brief; Catherine A. Foddai, Legal
                   Assistant, on the brief).

PER CURIAM
      Defendant Adonis Sepulveda appeals the August 9, 2019 Law Division

order denying his petition for post-conviction relief (PCR). We affirm.

      Defendant, Jorge Valencia, Ramona P. Mercado-Vasquez, and Alexander

Suarez were charged in a nineteen-count indictment with, inter alia, two counts

of first-degree kidnapping, N.J.S.A. 2C:13-1(b) and N.J.S.A. 2C:2-6, and two

counts of first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6. We draw

the facts from defendant's plea hearing. The offenses occurred 1 when defendant

and his co-defendants engaged in a home invasion burglary during which they

awoke the sleeping victim, placed a pillowcase over his head, and tied him up

at gunpoint.   They forced the victim to call the building doorman to the

apartment and, at gunpoint, tied him up as well. Valencia was the building

superintendent and used a key to access the unit. The group took items of

substantial value, including money and jewelry.

      Simultaneously, one of the co-conspirators removed some of the

surveillance camera hard drives. As they were leaving the building carrying

large white trash bags at approximately 3:53 a.m., however, they were captured




1
   Discrepancies between the factual basis established in defendant's case, and
in those of his co-defendants, are not relevant to this appeal.

                                      2                                   A-0403-19
by the remaining surveillance cameras. The building director later identified

defendant as a person depicted on film.

      The building director's husband, a maintenance worker, on his own

initiative, searched defendant's apartment, and found a gun and a shoe that

matched one seen worn by defendant on the video.          The affidavit police

submitted in support of the issuance of a warrant explained as follows: partial

shoe prints found near the scene matched defendant's shoes on the video,

defendant and Mercado-Vasquez gave conflicting statements about their

whereabouts at the time of the incident, Mercado-Vasquez had calls on her

phone log to defendant while she claimed the two were in a car together, and a

tenant saw a suspicious car in the parking lot between 1:00 and 1:30 a.m. When

police executed the search warrant, they recovered proceeds from the robbery in

defendant's apartment.

      After defendant and Mercado-Vasquez were arrested, they were placed in

holding cells near each other. While speaking in Spanish, they made inculpatory

statements regarding the crimes. The conversation was tape recorded. Suarez

also inculpated defendant in his statement to police.

      Faced with these proofs, defendant pled guilty to kidnapping and robbery.

The State recommended an aggregate of eighteen years' imprisonment, subject


                                       3                                 A-0403-19
to eighty-five percent parole ineligibility pursuant to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2, for both the robbery and the kidnapping. The

judge imposed an eighteen-year sentence for the kidnapping, but sixteen for the

robbery, on November 20, 2015. The terms were made concurrent to a violation

of probation sentence defendant incurred in another county, as he was on

probation at the time of this offense.

      Defendant appealed his sentence to the excessive sentence oral argument

panel. R. 2:9-11. It was upheld, although we remanded the matter to the

sentencing judge to issue a statement of reasons. Defendant thereafter filed a

PCR petition, arguing, among other things, that his counsel was ineffective for

failing to file a motion to suppress the items taken from his apartment.

      In his PCR decision, 2 the judge held that defendant failed to meet the

Strickland/Fritz 3 test. The court determined that trial counsel's decision to

forego a motion to suppress the evidence seized upon the execution of the search

warrant was a matter of trial strategy. In light of the overwhelming proofs


2
  The judge acknowledged defendant may be entitled to an additional day of
credit, but no further mention was made of the subject in his decision or in the
appeal briefs. In the interests of justice, the trial court may wish to look into the
matter further. See R. 2:10-2.
3
  Strickland v. Washington, 

466 U.S. 668

, 687 (1984); State v. Fritz. 

105 N.J.
42

, 58 (1987).

                                         4                                    A-0403-19
against defendant, the filing of such an application would have almost certainly

resulted in a harsher plea bargain offer. Furthermore, the judge did not think

the motion would have been successful in light of the wealth of information

contained within the four corners of the affidavit.

      Now on appeal, defendant raises the following points:

            POINT I

            THE PCR COURT ERRED IN RULING THAT THE
            CLAIM    THAT    TRIAL   COUNSEL    WAS
            INEFFECTIVE FOR FAILING TO FILE A MOTION
            TO SUPPRESS EVIDENCE WAS BARRED
            BECAUSE IT SHOULD HAVE BEEN RAISED ON
            DIRECT APPEAL.

            POINT II

            THE PCR COURT ERRED IN DENYING THE
            PETITION   WITHOUT    AN    EVIDENTIARY
            HEARING ON THE CLAIMS THAT TRIAL
            COUNSEL WAS INEFFECTIVE FOR FAILING TO
            FILE A MOTION TO SUPPRESS EVIDENCE.

We find no merit to these arguments. 4 R. 2:11-3(e)(2).




4
    We do not address the PCR judge's decision that the argument was
procedurally barred as defendant failed to make a prima facie case of ineffective
assistance of counsel. See Bandler v. Melillo, 

443 N.J. Super. 203

, 210 (App.
Div. 2015) (noting an appellate court affirms valid judgments, even if predicated
on incorrect reasoning).

                                        5                                  A-0403-19
      In cases such as these, where the trial court has not conducted an

evidentiary hearing, "we may review the factual inferences the court has drawn

from the documentary record de novo." State v. Blake, 

444 N.J. Super. 285

, 294

(App. Div. 2016). The PCR court's legal conclusions are also reviewed de novo.

State v. Harris, 

181 N.J. 391

, 415 (2004).

      The now familiar Strickland test requires a defendant to first establish by

a preponderance of the evidence that counsel's performance "fell below an

objective standard of reasonableness."       

Strickland, 466 U.S. at 688

.    It is

presumed that trial counsel acted reasonably. State v. Pierre, 

223 N.J. 560

, 579

(2015). A defendant must establish the second prong by demonstrating that "a

reasonable probability [exists] that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." 

Strickland, 466 U.S. at

694

. This reasonable probability must "undermine confidence in the outcome."

Pierre, 223 N.J. at 583

(quoting 

Strickland, 466 U.S. at 694

). In other words,

defendant bears the burden to show that, but for counsel's ineffective assistance,

he would have gone to trial and not entered a guilty plea.

      The trial court correctly found that counsel's decision not to file a motion

to suppress was reasonable given the likelihood it would be denied and the

negative impact it no doubt would have on plea offers made by the State. Like


                                        6                                   A-0403-19
the judge, we do not consider defendant's numerous attacks on the issuance of

the warrant to have merit.

      For example, in this case the civilian search of defendant's apartment did

not invalidate the search warrant. The maintenance worker searched on his own

initiative. When a private individual obtains evidence from spaces protected by

the Fourth Amendment, the authorities may use that information to obtain a

search warrant. State v. Wright, 

221 N.J. 456

, 476-78 (2015). That is what

occurred here.

      Additionally, at that juncture, police had the video in which defendant and

Mercado-Vasquez are seen carrying white trash bags from the building in the

middle of the night, and they knew that Mercado-Vasquez had misrepresented

her whereabouts based on her cell phone data. Any motion to suppress would

likely fail while increasing the State's offer. Counsel's decision was indeed

sound trial strategy.

      Therefore, defendant did not establish a prima facie case requiring an

evidentiary hearing. The judge did not abuse his discretion by refusing to grant

one. See State v. Brewster, 

429 N.J. Super. 387

, 401 (App. Div. 2013).




                                       7                                   A-0403-19
Affirmed.




            8   A-0403-19

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