STATE OF NEW JERSEY VS. KEVIN L. DILKS (18-05-0161, SUSSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2351-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN L. DILKS,
Defendant-Appellant.
_______________________
Submitted January 25, 2021 – Decided March 8, 2021
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Indictment No. 18-05-0161.
Joseph E. Krakora, Public Defender, attorney for
appellant (Abby P. Schwartz, Designated Counsel, on
the brief).
Francis A. Koch, Sussex County Prosecutor, attorney
for respondent (Shaina Brenner, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Kevin L. Dilks appeals from the denial of his petition for post-
conviction relief (PCR) without an evidentiary hearing. For the reasons that
follow, we affirm.
Defendant pled guilty on July 31, 2018, to one count of first-degree
distribution of lysergic acid diethylamide (LSD), a controlled dangerous
substance, N.J.S.A. 2C:35-5(a)(1) & (b)(6). He pled guilty in exchange for the
prosecutor's recommendation that defendant be sentenced to a period of no more
than thirteen-and-a-half years in prison with a seventy-eight-month period of
parole ineligibility. At the time defendant committed his offense, he was already
a drug court participant—a status which was terminated as a result of his
conviction in this matter.
On October 23, 2018, a judge sentenced defendant to twelve years with a
five-year period of parole ineligibility in accordance with his plea agreement.
Defendant did not file a direct appeal from his conviction and sentence.
Defendant filed his first petition for PCR on April 24, 2019. In his
petition, he asserted claims of ineffective assistance of counsel (IAC), based
upon his plea counsel not communicating with him or "investigat[ing] this
matter." He also claimed that the outcome of his sentencing was altered by plea
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counsel's "deficient conduct." Finally, he asserted that his sentence was
"excessive and must be modified."
In a supporting certification filed on his behalf, defendant asserted that his
plea counsel pressured him into pleading guilty, even though defendant told the
plea judge that he was not pressured at that time. Specifically, he claimed that
counsel came to him with a plea offer and gave him twenty-four hours to make
the decision about accepting it, which was not enough time. He also asserted
that counsel advised him to plead guilty without "develop[ing] any defenses or
hav[ing] any meaningful discussions about [his] case."
Defendant also claimed that he was initially told by counsel that his plea
"involved a Brimage[1] sentence," but at sentencing he learned that it did not and
when he asked to withdraw his guilty plea, his attorney "refused." Instead, his
counsel told him that he would "argue for a lower sentence," but that was "not
what [defendant] wanted."
1
State v. Brimage, 153 N.J. 1 (1998). Pursuant to Brimage, the Attorney
General adopted guidelines in 1998 to provide uniform plea agreement
guidelines "intended to regulate a defendant's exposure to mandatory minimum
terms of imprisonment" in drug cases. Cannel, N.J. Criminal Code Annotated,
cmt. 1 on N.J.S.A. 2C:35-12 (2020). The Guidelines were revised in 2004. See
Office of the Attorney General, Brimage Guidelines 2 (2004 Revisions):
Revised Attorney-General Guidelines for Negotiating Cases Under N.J.S.A.
2C:35-12 (2004), http://
www.nj.gov/oag/dcj/agguide/directives/brimagerevision.htm.
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Defendant also contended that plea counsel failed to object at sentencing
when the State referred to his criminal history for which defendant "had already
been punished . . . and served prison time." Moreover, he claimed that he asked
for counsel's help in filing an excessive sentencing appeal but was told "there
was nothing to appeal." He asserted that counsel failed to argue for mitigating
factors such as defendant's remorse and the hardship that his imprisonment
would impose on his family.
In addition to claiming IAC, defendant asserted that his "plea was not
voluntarily given because [he] was pressured to plead guilty" and that his plea
was not knowingly entered because he was told it was a Brimage offense.
In a supporting brief filed on defendant's behalf, he argued that he was
entitled to an evidentiary hearing because of his attorney's IAC. In the brief,
defendant began by citing to the same reasons he already argued in his
certification. In addition, defendant advanced a claim of "cumulative error" that
he asserted entitled him to PCR. Defendant further argued that his claims were
not barred by Rule 3:22-4. He also again asserted that his plea was not
knowingly and voluntarily given because of his understanding of Brimage's
application. He argued he should have been allowed to withdraw his plea and
that he "was pressured to plead guilty and misled about his sentencing."
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The PCR judge heard oral argument on December 11, 2019, before issuing
his order denying defendant relief. On that date, the judge placed his reasons
for denying the petition on the record.
In the judge's oral decision, he found that defendant's contentions were
"belied" by the record of the plea hearing. The judge continued by comparing
defendant's assertions on PCR to what occurred at the plea hearing where
defendant confirmed he did have enough time to speak to his attorney "and he
did not need any additional time" before pleading guilty and giving a factual
basis for his plea.
Addressing defendant's contention about his criminal history being
discussed, the PCR judge noted that the sentencing court had an obligation to
consider that history when sentencing. Turning to the Slater2 factors applicable
to a motion to withdraw a guilty plea, the judge noted that there was absolutely
no "colorable claim of innocence" advanced by defendant. The judge concluded
there were no facts supporting the IAC claim that warranted an evidentiary
hearing. This appeal followed.
On appeal, defendant argues the following point:
2
State v. Slater, 198 N.J. 145, 157-58 (2009).
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POINT I
COUNSEL FOR DEFENDANT WAS INEFFECTIVE
AS HE FAILED TO INVESTIGATE ANY ASPECT
OF THE CASE AND DID NOT REVEAL THE
TERMS OF DEFENDANT'S PLEA BARGAIN SUCH
THAT DEFENDANT ENTERED A PLEA OF
GUILTY WHICH DENIED HIM DUE PROCESS
AND A FAIR TRIAL.
A. INTRODUCTION.
B. INEFFECTIVE ASSISTANCE OF
COUNSEL.
C. TRIAL COUNSEL'S FAILURE TO
DISCUSS AND INVESTIGATE THE FACTS OF THE
CASE.
D. COUNSEL FAILED TO INFORM
DEFENDANT OF NATURE OF THE PLEA AND
THEREAFTER REFUSED TO FILE A MOTION FOR
DEFENDANT TO WITHDRAW HIS PLEA OF
GUILTY.
E. THE TRIAL COURT ERRED IN
FAILING TO REMAND THIS CASE FOR AN
EVIDENTIARY HEARING.
We are not persuaded by any of these arguments and affirm. The standard
for determining whether counsel's performance was ineffective for purposes of
the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S.
668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J.
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42, 49-50 (1987). "The standard for an [IAC] claim is thus the same under both
the United States and New Jersey Constitutions." State v. Gideon, ___ N.J. ___,
___ (2021) (slip op. at 14-15).
In order to prevail on an IAC claim, defendant must establish both that:
(1) counsel's performance was deficient and he or she made errors that were so
egregious that counsel was not functioning effectively as guaranteed by the
Sixth Amendment to the United States Constitution; and (2) the defect in
performance prejudiced defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland, 466 U.S. at 687, 694.
The two-prong analysis applies equally to convictions after a trial or after
a defendant pleads guilty. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012);
Missouri v. Frye, 566 U.S. 134, 140 (2012); State v. DiFrisco, 137 N.J. 434,
456-57 (1994). In the context of a PCR petition challenging a guilty plea, the
first Strickland prong is satisfied when a defendant establishes that "counsel's
assistance was not 'within the range of competence demanded of attorneys in
criminal cases.'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting
DiFrisco, 137 N.J. at 457). The second prong is met when a defendant
establishes "there is a reasonable probability that, but for counsel's errors, [he
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or she] would not have pled guilty and would have insisted on going to trial."
State v. Gaitan, 209 N.J. 339, 351 (2012) (alteration in original); see also Lafler,
566 U.S. at 163; McDonald, 211 N.J. at 30 (stating that a defendant must
demonstrate "(1) his counsel's performance was deficient and (2) that he was
prejudiced by that deficiency" and explaining that "a deficiency is prejudicial if
there is a reasonable probability that, but for counsel's errors, the defendant
would not have decided to forego the plea agreement and would have gone to
trial"); Nunez-Valdez, 200 N.J. at 139.
We conclude from our review that defendant failed to make a prima facie
showing of IAC within the Strickland/Fritz test substantially for the reasons
stated by the PCR judge. Accordingly, the judge correctly concluded that an
evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-
63 (1992). We add the following brief comments.
On appeal defendant contends for the first time that his plea counsel failed
to investigate his case, claiming that counsel did not review a tape recording
made by a confidential informant who was with defendant and that his attorney
failed to interview witnesses. As these claims were not raised before the PCR
judge, they are not properly before us for review. See State v. Robinson, 200
N.J. 1, 20-22 (2009). We limit our review of them to a search for plain error.
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R. 2:10-2. After doing so, we conclude there was no error, let alone plain error,
because even if counsel had, in fact, not investigated, defendant has not
supported his assertions with any evidence of what the tape recording or the
witnesses would have revealed.
Without such support, defendant has merely advanced "bald assertions"
that are insufficient to give rise to a prima facie claim of IAC. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The mere raising of a
claim for PCR does not entitle the defendant to an evidentiary hearing. Ibid.When determining whether to grant an evidentiary hearing, the PCR judge must
consider the facts in the light most favorable to the defendant to determine if a
defendant has established a prima facie claim. Preciose, 129 N.J. at 462-63. It
follows that a "defendant must allege specific facts and evidence supporting his
allegations," State v. Porter, 216 N.J. 343, 355 (2013), and "must do more than
make bald assertions that he was denied the effective assistance of counsel."
Cummings, 321 N.J. Super. at 170.
Addressing the Brimage issue, there is no reference in the transcript of the
plea hearing that indicated defendant was advised by his attorney or anyone that
his sentence was subject to the Brimage guidelines. Rather, defendant, who was
pleading guilty to a first-degree offense, was subject to a mandatory period of
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parole ineligibility under N.J.S.A. 2C:35-5(b)(6) ("the court shall impose a term
of imprisonment which shall include the imposition of a minimum term, fixed
at, or between, one-third and one-half of the sentence imposed by the court,
during which the defendant shall be ineligible for parole"), and not a Brimage
sentence, which defendant confirmed he was told at or before sentencing. 3 At
no time did defendant make any statement to the sentencing judge that he wished
to withdraw his plea because of a Brimage issue or for any other reason.
Affirmed.
3
At sentencing, defendant's attorney stated to the judge that "the sentencing
range in this case" was subject to a "period of parole ineligibility" "because it[
is] a first degree crime" and not "within Brimage," which gave the judge
"discretion as to how long that period of parole ineligibility [was] going to be."
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