STATE OF NEW JERSEY VS. KAWAN BOLT (06-03-0367, BURLINGTON AND MERCER COUNTIES AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-0063-18T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    KAWAN BOLT,
    Defendant-Appellant.
    _____________________________
    Submitted November 6, 2019 – Decided December 18, 2019
    Before Judges Yannotti and Hoffman.
    On appeal from the Superior Court of New Jersey, Law
    Division, Burlington and Mercer Counties, Indictment
    No. 06-03-0367.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Howard Woodley Bailey, Designated
    Counsel, on the brief).
    Angelo J. Onofri, Mercer County Prosecutor, attorney
    for respondent (Daniel Opatut, Assistant Prosecutor, of
    counsel and on the brief).
    PER CURIAM
    Defendant appeals from an order entered by the Law Division on August
    29, 2018, which denied his petition for post-conviction relief (PCR). We affirm.
    I.
    In March 2006, defendant and Victor Baylor were charged with first-
    degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree attempted theft,
    N.J.S.A. 2C:5-1, N.J.S.A. 2C:20-3(a) (count two); fourth-degree aggravated
    assault, N.J.S.A. 2C:12-1(b)(4) (count three); and second degree possession of
    a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). Defendant
    and Baylor were tried jointly before a jury.
    The evidence presented at trial established that on October 24, 2005, two
    masked men entered a delicatessen on Brunswick Avenue in Trenton. The
    shorter man put a gun to the owner's head and demanded money, while the taller
    man punched the owner. One of the store's employees grabbed the short man's
    gun and a struggle ensued. The tall man fought the employee and punched him
    in the face.
    The perpetrators' masks fell off and their faces were revealed. The store's
    owner and an employee recognized both perpetrators as frequent customers. The
    owner took a small knife and stabbed the taller man above the right eye and on
    the left side of his abdomen. The perpetrators left the store without taking any
    A-0063-18T4
    2
    money. The incident was reported to the Trenton police, who contacted local
    hospitals and learned that a man had come to a hospital with stab wounds above
    the right eye and on the left side of the abdomen.
    A detective went to the hospital and spoke with the injured man, who was
    identified as defendant. He claimed he had been "jumped." The police brought
    one of the store's employees to the hospital. He identified defendant as one of
    the perpetrators of the robbery.
    The detective learned that defendant had signed in at the hospital under a
    false name. He informed defendant of his Miranda rights.1 The detective asked
    defendant how he came to be injured.
    He stated that two men tried to rob him, and he was injured when he fought
    with them. The detective told defendant he did not believe him and said he
    would be questioned further at the police station.
    Defendant then admitted he lied when he stated he was a victim of a
    robbery. He told the detective he walked into the deli while a robbery was in
    progress. He claimed he tried to help the employees but was stabbed in the
    struggle. Later that evening, employees from the deli identified Baylor as the
    other perpetrator.
    1
    Miranda v. Arizona, 
    384 U.S. 436
    (1966).
    A-0063-18T4
    3
    The jury found defendant guilty on all counts.2 The trial court merged
    counts two, three, and four with count one, and sentenced defendant to twelve
    years of incarceration, with an 85% period of parole ineligibility as prescribed
    by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a
    four-year concurrent term for an outstanding probation violation.
    II.
    Defendant appealed from the judgment of conviction (JOC) dated March
    9, 2007, and raised the following arguments:
    POINT I
    THE TRIAL COURT ERRED IN DENYING
    DEFENSE COUNSEL'S MOTION TO SUPPRESS
    THE ORAL STATEMENTS MADE BY HIM TO THE
    POLICE    PURSUANT     TO    CUSTODIAL
    INTERROGATION WITHOUT HAVING BEEN
    ADVISED OF HIS MIRANDA WARNING, WHICH
    NECESSARILY     TAINTED    HIS    ORAL
    STATEMENTS       MADE     IMMEDIATELY
    THEREAFTER AFTER HE WAS ADVISED OF HIS
    WARNING.
    POINT II
    THE      TRIAL   COURT'S    INDEPENDENT
    QUESTIONING OF THE DEFENDANT CAST
    ITSELF INTO THE ROLE OF AN ADVOCATE BY
    ESSENTIALLY PROJECTING ITS OWN DISBELIEF
    OF THE DEFENDANT'S TESTIMONY. (Not raised
    below).
    2
    Baylor was convicted of the same charges. See State v. Baylor, No. A-3891-
    07 (App. Div. Aug. 24, 2010).
    A-0063-18T4
    4
    POINT III
    THE TRIAL COURT ERRED BY INSTRUCTING
    THE JURY THAT THE FACT THE DEFENDANT
    GAVE A FALSE NAME TO THE HOSPITAL
    COULD BE UTILIZED AS DEMONSTRATING A
    CONSCIOUSNESS OF GUILT ON HIS BEHALF.
    POINT IV
    THE SENTENCE IMPOSED WAS MANIFESTLY
    EXCESSIVE.
    We affirmed defendant's convictions and sentence. State v. Bolt, No. A-
    6198-06 (App. Div. Aug. 4, 2010).          Defendant then filed a petition for
    certification with the Supreme Court. The Court denied the petition. State v.
    Bolt, 
    205 N.J. 77
    (2011).
    On August 15, 2012, defendant filed a verified petition for PCR. The
    court found the petition was barred by Rule 3:22-12(a)(1) because it had not
    been filed within five years after the date the JOC was entered, and defendant
    did not establish that his failure to file a timely petition was due to excusable
    neglect. The PCR court also found defendant did not present a prima facie case
    of ineffective assistance of counsel, and denied his request for an evidentiary
    hearing. The PCR court memorialized its decision in an order dated September
    24, 2014.
    Defendant appealed from the court's order. We reversed and remanded
    the matter for further proceedings. State v. Bolt, No. A-2017-14 (App. Div.
    A-0063-18T4
    5
    Nov. 17, 2016) (slip op. at 8). We stated that on remand, the PCR court should
    appoint new counsel to represent defendant and counsel should be afforded the
    opportunity for oral argument. 
    Ibid. We also stated
    that PCR counsel could
    seek leave to file certifications in support of the petition, and the court may
    reconsider its decision that an evidentiary hearing was not required. 
    Id. at 8-9.
    The matter was thereafter transferred to Burlington County.
    III.
    The PCR court appointed new counsel for defendant, and defendant filed
    a certification in support of his petition. PCR counsel filed a brief in which he
    argued that the petition was not barred by Rule 3:22-12(a)(1). Counsel also
    argued that defendant was denied the effective assistance of counsel because
    trial counsel failed to: consult with defendant to review the evidence and
    prepare essential defenses; object to the trial court's questioning of defendant;
    object to numerous instances of prosecutorial misconduct; argue applicable
    mitigating factors, and seek a reduced sentence. In addition, PCR counsel
    argued that the court should consider the "totality" of the trial errors and asserted
    that defendant was denied the effective assistance of appellate counsel.
    On February 2, 2018, the PCR court conducted oral argument. Defendant
    was present and commented on the record. The PCR court thereafter filed a
    A-0063-18T4
    6
    written opinion in which it concluded that the petition was barred under Rule
    3:22-12(a)(1) because defendant failed to establish his failure to file a timely
    petition was due to excusable neglect.
    The PCR court nevertheless considered the petition on the merits and
    found that defendant failed to establish a prima facie case of ineffective
    assistance of trial or appellate counsel. The court therefore determined that
    defendant was not entitled to an evidentiary hearing. The court entered an order
    denying PCR. This appeal followed.
    On appeal, defendant argues that: (1) the PCR court erred by denying his
    petition for PCR without affording him an evidentiary hearing to address his
    claim that he did not receive adequate legal representation from trial counsel;
    and (2) the court erred by applying Rule 3:22-12(a)(1) as a procedural bar to the
    petition.
    IV.
    As noted, defendant argues that the PCR court erred by denying his
    request for an evidentiary hearing on his claim that he was denied the e ffective
    assistance of trial counsel. We disagree.
    An evidentiary hearing is required on a PCR petition only if the defendant
    presents a prima facie case in support of relief, the PCR court determines there
    A-0063-18T4
    7
    are material issues of fact which cannot be resolved based on the existing record,
    and the court finds that an evidentiary hearing is required to resolve the claims
    presented. State v. Porter, 
    216 N.J. 343
    , 354 (2013) (citing R. 3:22-10(b)). A
    prima facie case is established when the defendant establishes "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." R. 3:22-
    10(b).
    To prevail on a claim of ineffective assistance of counsel, a defendant
    must satisfy the two-part test established in Strickland v. Washington, 
    466 U.S. 668
    , 693 (1984), and later adopted by our Supreme Court in State v. Fritz, 
    105 N.J. 42
    , 58 (1987). Under the test, a defendant first "must show that counsel's
    performance was deficient." 
    Strickland, 466 U.S. at 693
    . Defendant must
    establish that counsel's performance "fell below an objective standard of
    reasonableness" and "counsel made errors so serious that counsel was not
    functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
    
    Ibid. Defendant also must
    show "that the deficient performance prejudiced the
    defense." 
    Ibid. To establish prejudice,
    the defendant must establish "there is a
    reasonable probability that, but for counsel's unprofessional errors, the result of
    A-0063-18T4
    8
    the proceeding would have been different.         A reasonable probability is a
    probability sufficient to undermine confidence in the outcome" of the matter.
    
    Id. at 698.
    Here, defendant argues he established that he was denied the effective
    assistance of counsel because his attorney did not obtain video footage from a
    security camera at the deli where the robbery occurred. Defendant contends he
    informed his first attorney about the security camera and told him he wanted to
    get a copy of the video footage. He asserts that if counsel had presented the
    footage to the jury, it would have supported his testimony that he never went
    into the deli with the intent to commit any type of robbery.
    The PCR court found that the record shows defendant's attorney consulted
    with defendant and conducted a reasonable investigation on this possible
    defense. The court noted that at oral argument, defendant stated that before he
    went to trial, he informed his first attorney about the security camera in the deli.
    Defendant said an investigation was conducted and "people in the store" said the
    security camera was not working on the day of the robbery.
    Moreover, defendant did not submit any affidavit or certification to the
    PCR court establishing that the security camera in the deli was, in fact, operating
    when the robbery was committed. In addition, at trial, the owner of the deli
    A-0063-18T4
    9
    testified that at the time of the robbery, there was a camera in the store but it
    "had broken down." Furthermore, two employees who were present during the
    robbery also testified that there was a camera in the deli, but it was not working.
    Defendant nevertheless argues the PCR court should have conducted an
    evidentiary hearing during which PCR counsel could have asked trial counsel
    why he did not obtain the footage from the deli's security camera. Defendant
    notes that during the oral argument, he "suggested" trial counsel conducted an
    investigation about the security tapes and discovered that "on this one particular
    day" the security camera was not recording. Defendant claims the initial inquiry
    by his attorney was insufficient.
    We are convinced, however, that defendant failed to present the PCR court
    with sufficient evidence to establish a prima facie case of ineffective assistance
    of counsel with regard to counsel's alleged failure to obtain the security footage.
    To establish a prima facie claim of ineffective assistance, a defendant "must do
    more than make bald assertions that he was denied the effective assistance of
    counsel." State v. Cummings, 
    321 N.J. Super. 154
    , 170 (App. Div. 1999).
    Here, defendant did not establish that his attorney failed to investigate the
    existence of the footage from the deli's security camera. Defendant presented
    no competent evidence showing that the security camera was, in fact, working
    A-0063-18T4
    10
    and that it recorded the robbery.       Indeed, the evidence presented at trial
    established that the camera in the deli was not working at the time. Moreover,
    at oral argument, defendant did more than suggest that his attorney had
    investigated this possible defense. He conceded that counsel had investigated
    possible surveillance footage and was told the camera was not operating when
    the robbery was committed.
    We therefore conclude the PCR court correctly determined that defendant
    was not entitled to an evidentiary hearing on this claim. The record supports the
    court's finding that defendant failed to establish a prima facie case of ineffective
    assistance of trial counsel.
    V.
    Defendant further argues that the PCR court erred by finding his petition
    was barred under Rule 3:22-12(a)(1). He contends he established excusable
    neglect for his failure to file the PCR petition within five years after the date on
    which the JOC was entered. He also contends there is a reasonable probability
    that if his factual allegations are correct, enforcement of the time-bar would
    result in a fundamental injustice.
    As we have explained, while the PCR court found defendant's petition was
    barred under Rule 3:22-12(a)(1), the court considered defendant's claims and
    A-0063-18T4
    11
    found that he had not established a prima facie case of ineffective assistance of
    counsel and that defendant was not entitled to an evidentiary hearing on his
    petition. Therefore, we need not address defendant's contention that the court
    erred by finding the petition was barred by Rule 3:22-12(a)(1).
    Affirmed.
    A-0063-18T4
    12
    

Document Info

Docket Number: A-0063-18T4

Filed Date: 12/18/2019

Precedential Status: Non-Precedential

Modified Date: 12/18/2019