NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0913-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE GUADALUPE,
Defendant-Appellant. _______________________
Submitted January 22, 2025 – Decided February 4, 2025
Before Judges Perez Friscia and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 17-08-2162 and 17-08-2209.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Kevin Hein, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Jose Guadalupe appeals from the November 1, 2023 Law
Division order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. Defendant contends an evidentiary hearing is warranted
because he sufficiently demonstrated a prima facie showing of ineffective
assistance of counsel (IAC) based on his trial counsel's failure to request a
passion/provocation manslaughter charge. We affirm.
I.
We incorporate the facts and procedural history set forth in our prior
opinion, State v. Jose Guadalupe, No. A-3945-18 (App. Div. Nov. 10, 2021)
(slip op. at 1-33), affirming defendant's convictions and sentence on direct
appeal. We only recite the pertinent facts to the present appeal.
In the early evening of April 23, 2017, officers responded to a report of
gunshots near the intersection of North 18th Street and Pierce Street in East
Camden. In the neighborhood was "a housing complex, a church, a learning
academy, a salvation army center, and residential dwellings." Guadalupe, slip
op. at 4. The officers observed "a silver Mazda Protege crashed against a fence
in a field at the dead-end of North 18th Street." Ibid. After approaching the
vehicle, the officers discovered the Mazda's engine was running, and the driver
was buckled in his seat, "unconscious[,] and suffering from several gunshot
A-0913-23 2 wounds." Ibid. The officers also observed the vehicle's shattered driver-and
passenger-side windows and bullet casings around the vehicle.
Officers transported the victim in a police vehicle to the hospital, where
he was pronounced dead. "An autopsy revealed the victim suffered seven
gunshot wounds to his right temple, right and left sides of his chest, right arm,
right forearm, left forearm, and left elbow." Id. at 4-5. After the autopsy, the
medical examiner determined the manner of the victim's death was homicide.
During the investigation of the crime scene, police recovered "a cell phone
from the floor of the driver's side of the Mazda, seven shell casings, and a black
and yellow glove located in the brush of the field on North 18th Street." Id. at
5. The State's firearms expert determined the shell casings "were .40 caliber and
discharged from the same firearm." Ibid. A detective assigned to the homicide
investigation determined the glove to be "one commonly used to ride
motorcycles and dirt bikes." Ibid. The State's DNA forensic expert opined the
DNA profile evidence recovered from the glove was "inconclusive," and a DNA
profile was not obtainable from the shell casings.
Detectives extracted from the victim's cell phone "text messages between
the victim and a person named 'Whip'" sent on the day of the shooting. Ibid. In
the exchanged text messages, the victim also identified Whip as "Jav."
A-0913-23 3 Detectives later identified Whip as Jabriel Rosa. At 3:07 p.m., "Whip and the
victim arranged to meet at Whip's mother's house, which was corroborated by
surveillance video." Ibid. The victim's fiancé recalled that on the day of the
shooting, "at around 6:30 p.m., the victim received a phone call from [Rosa]"
and immediately left to meet him. Id. at 6.
"Text messages from the victim's phone sent at 6:03 p.m. and 6:08 p.m.
indicated that the victim and [Rosa] would meet at their 'spot.'" Ibid. At 6:40
p.m., the victim texted Rosa asking where he was and confirming he was at their
meeting spot. "At the time these text messages were sent, surveillance video
captured an individual riding a red and yellow quad driving in the direction of
the shooting and making a turn at the intersection of North 18th Street and Pierce
Street." Id. at 7.
On April 24, detectives interviewed defendant. After receiving and
waiving his Miranda1 rights, defendant acknowledged hearing "about the
homicide one day earlier." Ibid. He maintained that on the day of the shooting,
he worked at a garage shop in Brooklawn, leaving only for a short time in the
early afternoon and later in the evening to travel to his girlfriend's house in
Paulsboro for dinner. He advised the detectives that when he returned to the
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-0913-23 4 shop, he worked until the early morning and fell asleep in a car there. Defendant
"claimed that he did not know the victim" and had met Rosa as a shop customer
but came to consider him like "family." Ibid.
On May 11, detectives interrogated defendant a second time after he
waived his Miranda rights. The detectives told defendant they: did not believe
he was being honest about his involvement in the homicide; had accumulated
incriminating evidence from the shooting; and "kn[e]w [defendant] killed [the
victim]." Id. at 8. A detective "explained to defendant there were 'numerous
videos' and 'multiple witnesses' [showing] that defendant was riding the red and
yellow quad." Ibid. He also "told defendant a riding glove was discovered at
the crime scene, and defendant confirmed the glove was his." Ibid.
After defendant requested to see his girlfriend, which the detectives
accommodated, he confessed. Defendant explained to his girlfriend, who had
suggested he speak with an attorney, that "[t]here[ is] no getting out of it, to tell
a lawyer. I[ am] just going to make it through with them, I'm go[ing to] tell
them about things, you know, and I[ am] just going to take it from there."
Defendant became emotional and cried after she left, explaining to
detectives that he shot the victim. In the surveillance video the detectives
played, he identified himself as the individual at "the intersection of Third Street
A-0913-23 5 and Royden Street on the day of the shooting at 7:48 p.m." and "as the individual
wearing black pants and gray sneakers." Id. at 10. "Defendant described the
route he took to the location of the homicide, naming the intersections he passed,
which was corroborated by surveillance video." Id. at 10-11. He recounted
parking his quad near the location and waiting for the victim to confirm he was
parked before approaching the victim's vehicle. "Defendant recalled observing
two kids riding their bicycles while he waited," which detectives later
corroborated by watching recovered surveillance video. Id. at 11. Further,
defendant explained that for drug deals, he "always carr[ied] a gun . . . when
[h]e mov[ed] the transaction."
He told the detective that because Rosa owed the victim money, defendant
believed the victim might shoot him. Defendant was buying "some stuff" from
the victim, which he had no money to pay for. After approaching the victim's
vehicle, he observed the bag he was supposed to retrieve on the front passenger
seat and believed the victim reached for something. He fired several shots at
the victim, discharging all the rounds in his handgun before running away.
While defendant maintained he feared the victim would harm him, he stated to
detectives, "I[ am] not saying [the victim] pulled out a gun on me or in self-
defense[.] I did it."
A-0913-23 6 Thereafter, "[a]t trial, defendant recanted his confession." Id. at 13. "He
testified that he did not shoot the victim, did not know who shot the victim, did
not see the victim on April 23, 2017, and did not own a handgun." Ibid. He
refuted being the individual in the relevant surveillance videos. Defendant
alleged he learned the specific details that he recounted to police from the
conversations he overheard between Rosa and other individuals discussing the
killing. Defendant "described an incident a week before his confession, where
he was on his way to the liquor store when two individuals wearing face masks
and black clothes from top to bottom began punching and kicking him." Id. at
14. He maintained the unknown assailants "covered in . . . face mask[s]" placed
a gun to his head and threatened that he better do what he was told or he would
"see what[ was] going to happen to [him] and [his] family."
Defendant testified he lied in his May confession because Rosa and others
had threatened to harm him and his family if he did not "take the blame," and
defendant tried to credibly persuade the detectives he killed the victim. He
explained he later decided to tell the truth because his family was in Puerto Rico,
and no family members resided in New Jersey. He acknowledged having three
prior convictions but explained they were all drug related.
A-0913-23 7 On November 7, 2018, a jury found defendant guilty of: first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1); second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b)(1); second-degree possession of
a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and second-degree
certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1).
On February 1, 2019, defendant pleaded to one count of second-degree
possession of a firearm while committing a controlled dangerous substance
(CDS) or bias crime, N.J.S.A. 2C:39-4.1(a). In August 2017, a separate grand
jury indictment charged defendant and Rosa with: third-degree possession of a
CDS, N.J.S.A. 2C:35-10(a)(1) (counts one and three); third-degree possession
with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two); first-degree
possession with intent to distribute, N.J.S.A. 2C:35-5(b)(1) (count four); third-
degree possession with intent to distribute CDS within 1,000 feet of a school,
N.J.S.A. 2C:35-7 (count five); two counts of second-degree possession of a
handgun in the course of a CDS offense, N.J.S.A. 2C:39-4.1(a) (counts six and
seven); first-degree maintaining or operating a CDS production facility,
N.J.S.A. 2C:35-4 (count eight); and second-degree certain persons not to possess
weapons, N.J.S.A. 2C:39-7(b)(1) (count ten).
A-0913-23 8 After the sentencing court copiously addressed the aggravating and
mitigating factors pursuant to N.J.S.A. 2C:43-2(e), as well as the Yarbough2
factors, it sentenced defendant to an aggregate thirty-five-year term of
imprisonment. The court sentenced defendant on the aggravated manslaughter
count to a term of twenty-five years in prison subject to the No Early Release
Act, N.J.S.A. 2:43-7.2, and on the certain persons not to possess weapons count
to a consecutive ten-year term of imprisonment with a five-year period of parole
ineligibility. In accordance with defendant's negotiated plea, it sentenced
defendant on the second-degree possession of a firearm while committing a CDS
offense to a concurrent five-year term of imprisonment.
Defendant filed a direct appeal challenging the trial court's: denial of his
motion to dismiss; denial of his motion for a judgment of acquittal; failure to
instruct the jury on imperfect self-defense; and imposed aggregate sentence. Id.
at 3. Unpersuaded by defendant's arguments, we affirmed his convictions and
sentence. Id. at 1-33. On January 31, 2022, the Supreme Court denied
defendant's petition for certification.
On June 1, defendant filed a self-represented PCR petition, which PCR
counsel thereafter supplemented. Defendant argued IAC because his trial
2 State v. Yarbough, 100 N.J. 627, 642-44 (1985). A-0913-23 9 counsel failed to: "seek a passion[/]provocation jury instruction based on the
particular facts of [this] case"; and "ensure that the plea [to possession of a
firearm while committing a CDS offense] occurred simultaneously with
sentencing," which resulted in the sentencing court using defendant's plea to
justify imposition of an excessive sentence. 3
After hearing argument, the PCR Judge Yolanda C. Rodriguez issued an
order accompanied by a thorough oral decision denying defendant's petition.
The judge addressed defendant's petition under the PCR framework established
under the court rules and the two prong IAC test enunciated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), as adopted by our Supreme Court in
State v. Fritz, 105 N.J. 42, 58 (1987). The judge found defendant's IAC claim
challenging trial counsel's failure to request a passion/provocation jury charge
was barred under Rule 3:22-5, as defendant had raised "a substantially similar"
issue on direct appeal regarding the trial court's failure to charge on imperfect
self-defense. After noting the similarities between passion/provocation and
3 On appeal, defendant does not challenge the PCR judge's finding that he failed to make a prima facie showing of IAC regarding his plea to possession of a firearm while committing a CDS offense prior to his aggravated manslaughter and certain persons sentencing. We note the sentencing court imposed the negotiated recommended plea sentence of a five-year concurrent term of imprisonment. A-0913-23 10 imperfect self-defense, the judge concluded defendant's PCR petition was barred
because we had concluded on direct appeal that the trial court permissively did
not charge imperfect self-defense and affirmed his conviction.
In addressing defendant's PCR argument on the merits, the judge found
his bald IAC claims were insufficient. She concluded his allegation that trial
counsel failed to request a passion/provocation manslaughter charge did not
warrant an evidentiary hearing because it directly conflicted with his defense.
The judge explained that defendant maintained he "was[ no]t present" at the
shooting "and did not shoot and kill the victim." Therefore, a jury charge on
passion/provocation manslaughter, which would have required instruction on
whether defendant had reasonable provocation, would have weighed against his
chosen defense strategy of not being at the scene. The judge found defendant
failed to satisfy either prong of Strickland, as he did not demonstrate trial
counsel's deficiency or prejudice.
On appeal, defendant raises a single point for our consideration:
POINT I
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO REQUEST A
A-0913-23 11 PASSION/PROVOCATION MANSLAUGHTER CHARGE.
II.
In the absence of an evidentiary hearing, we review de novo the factual
inferences drawn from the record by the PCR court as well as the court's legal
conclusions. State v. Aburoumi, 464 N.J. Super. 326, 338 (App. Div. 2020). A
petitioner is not automatically entitled to an evidentiary hearing by simply
raising a PCR claim. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). "A prima facie case is established when a defendant demonstrates 'a
reasonable likelihood that his or her claim, viewing the facts alleged in the light
most favorable to the defendant, will ultimately succeed on the merits.'" State
v. Porter, 216 N.J. 343, 355 (2013) (quoting R. 3:22-10(b)). If defendant's
"allegations are too vague, conclusory, or speculative," they are not entitled to
an evidentiary hearing. Ibid. (quoting State v. Marshall, 148 N.J. 89, 158
(1997)).
To succeed on an IAC claim, a defendant must satisfy both prongs of the
test set forth in Strickland, 466 U.S. at 687, as adopted by Fritz, 105 N.J. at 58,
by a preponderance of the evidence. "First, the defendant must show that
counsel's performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the
A-0913-23 12 defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. A trial court
"must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance," and "the defendant must overcome
the presumption that, under the circumstances, the challenged action [by
counsel] 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel
v. Louisiana, 350 U.S. 91, 101 (1955)). Under the second prong of the
Strickland test, the defendant must show "the deficient performance prejudiced
the defense." Id. at 687. This means "counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. It is
insufficient for the defendant to show the errors "had some conceivable effect
on the outcome." Id. at 693.
III.
Defendant first contends that his claim of IAC by trial counsel for failing
to request a passion/provocation manslaughter charge is not procedurally barred
under Rule 3:22-5. He specifically argues the PCR judge "erred by equating
passion[/]provocation manslaughter with imperfect self-defense" and by finding
our adjudication of defendant's imperfect self-defense challenge on the merits
was substantially similar. We disagree.
A-0913-23 13 Previously adjudicated PCR claims are procedurally barred. R. 3:22-5.
"A prior adjudication upon the merits of any ground for relief is conclusive
whether made in the proceedings resulting in the conviction or in any post -
conviction proceeding brought pursuant to this rule . . . or in any appeal taken
from such proceedings." Ibid. A PCR petition "is not a substitute for direct
appeal; nor is it an opportunity to relitigate a case on the merits." State v.
Szemple, 247 N.J. 82, 97 (2021); see also State v. Preciose, 129 N.J. 451, 459
(App. Div. 1999). Further, a PCR claim is barred "if the issue raised is identical
or substantially equivalent" to an issue adjudicated previously on direct appeal.
State v. Afanador, 151 N.J. 41, 51 (1997) (italicization omitted) (quoting State
v. McQuaid, 147 N.J. 464, 484 (1997)).
On direct appeal, after considering defendant's argument that the trial
court should have instructed the jury on imperfect self-defense, we discerned no
error. We reviewed defendant's challenge in the context of the established
meaning of imperfect self-defense. Our Supreme Court has explained the
meaning of imperfect self-defense as "an honest subjective belief on the part of
the killer that his or her actions were necessary for his or her safety, even though
an objective appraisal by reasonable people would have revealed not only that
the actions were unnecessary, but also that the belief was unreasonable." State
A-0913-23 14 v. Bowens, 108 N.J. 622, 628 (1987). Further, "[t]he predicate for such an
instruction . . . is that such evidence . . . demonstrates acts of provocation on the
part of the victim to an extent sufficient to afford the jury a rational basis for
convicting the defendant of one of the Code's forms of manslaughter." State v.
Pitts, 116 N.J. 580, 606 (1989). Accordingly, we concluded that defendant
demonstrated no "rational basis for a charge of imperfect self-defense."
Relevant to defendant's IAC contention is the definition of
passion/provocation manslaughter. New Jersey has defined passion/provocation
manslaughter as "[a] homicide which would otherwise be murder . . . [but] is
committed in the heat of passion resulting from a reasonable provocation." State
v. Carrero, 229 N.J. 118, 128 (2017) (alterations in original) (quoting N.J.S.A.
2C:11-4(b)(2)). The four elements of passion/provocation manslaughter are
that: "[1] the provocation must be adequate; [2] the defendant must not have
had time to cool off between the provocation and the slaying; [3] the provocation
must have actually impassioned the defendant; and [4] the defendant must not
have actually cooled off before the slaying." Id. at 129 (alterations in original)
(quoting State v. Mauricio, 117 N.J. 402, 411 (1990)). To satisfy the first
element, "the provocation must be sufficient to arouse the passions of an
ordinary [person] beyond the power of his [or her] control." Ibid. (alterations
A-0913-23 15 in original) (quoting Mauricio, 117 N.J. at 412) (internal quotation marks
omitted). Our Court has determined the presence of a weapon may be sufficient
to support the provocation requirement, while harsh words and "a bump" by a
victim are insufficient. See Mauricio, 117 N.J. at 414.
After considering the imperfect self-defense and passion/provocation
manslaughter factors, we concur with the PCR judge that defendant's IAC claim
is substantially equivalent to his imperfect self-defense claim previously
adjudicated on direct appeal. We therefore discern no reason to disturb Judge
Rodriguez's well-supported determination that defendant's IAC claim regarding
trial counsel's failure to seek a passion/provocation manslaughter charge is
procedurally barred as substantially similar. We note defendant's PCR claim is
also barred under Rule 3:22-4, because it could have been raised on direct
appeal.
For the sake of completeness, we address defendant's IAC claim on the
merits. While it is undisputed defendant testified that he was not at the scene of
the homicide and did not shoot the victim, he contends an evidentiary hearing is
warranted because he has made a sufficient prima facie showing of IAC based
on trial counsel's failure to request a passion/provocation manslaughter charge .
We recognize that pursuant to N.J.S.A. 2C:1-8(e), "The [trial] court shall not
A-0913-23 16 charge the jury with respect to an included offense unless there is a rational basis
for a verdict convicting the defendant of the included offense." Defendant has
recited no material facts in the record supporting a rational basis for a
passion/provocation jury verdict. See R. 3:22-10(b) (stating a defendant is only
entitled to an evidentiary hearing "upon the establishment of a prima facie case
in support of [PCR], a determination by the court that there are material issues
of disputed fact . . . , and a determination that an evidentiary hearing is necessary
to resolve the claims for relief").
While we acknowledge defendant could have presented inconsistent
alternate defenses, he has failed to proffer sufficient facts for the jury's
consideration under the first passion/provocation prong—that the victim
adequately provoked him—and the third prong—that "the provocation must
have actually impassioned" him. Stated another way, defendant has not
demonstrated material facts showing that trial counsel was deficient for failing
to request a passion/provocation manslaughter charge.
Defendant's reference to his confession played for the jury, wherein he
stated he observed the victim reaching for something, is insufficient. Setting
aside defendant's trial testimony, defendant admitted that he always carried a
weapon to CDS transactions because drug dealing was dangerous. He also
A-0913-23 17 admitted going to the drug exchange to meet the victim without money and
knowing that would place him in potential danger. Notably, defendant
confessed to shooting the victim "because [he] was[ not] thinking" and not
because the victim "pulled out a gun on [him] or in self-defense."
In sum, after reviewing defendant's argument in light of the record, we
conclude the PCR judge did not err in finding that defendant offered no predicate
facts supporting IAC by trial counsel for failing to request the
passion/provocation manslaughter charge, as it was inconsistent with
defendant's strategy and defense that he did not shoot the victim, and the charge
was unsupported by the evidence. Defendant has only made bald assertions.
Thus, he is not entitled to an evidentiary hearing because he has not "presented
a prima facie [case] in support of [PCR]," Marshall, 148 N.J. at 158 (first
alteration in original) (italicization omitted) (quoting Preciose, 129 N.J. at 462),
meaning he did not demonstrate a deficient performance by trial counsel and
"demonstrate a reasonable likelihood that his . . . claim will ultimately succeed
on the merits." Ibid.
To the extent we have not addressed defendant's remaining arguments, we
determine they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2).
A-0913-23 18 Affirmed.
A-0913-23 19