State of New Jersey v. Kenneth K. Gumbs ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3082-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH K. GUMBS,
Defendant-Appellant.
_____________________________
Submitted April 17, 2024 – Decided November 22, 2024
Before Judges Gummer and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 11-09-0793.
Jennifer N. Sellitti, Public Defender, attorney for
appellant (Amira R. Scurato, Designated Counsel, on
the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Ali Y. Ozbek, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
WALCOTT-HENDERSON, J.S.C. (temporarily assigned).
Defendant Kenneth Gumbs appeals from a September 28, 2021 order
denying his second petition for post-conviction relief (PCR). In his second PCR
petition, filed more than one year after his first petition had been denied,
defendant argues the PCR court erred on both procedural and substantive
grounds, asserting the PCR court: made no factual findings in support of its
decision denying his petition; improperly denied his petition when he had
established a prima facie case of ineffective assistance of counsel based on
counsel's failure to advise him of his exposure to a mandatory extended -term
sentence; and failed to investigate and challenge the search warrant executed at
defendant's home. Defendant also argues the matter should be remanded for a
hearing regarding his pro se allegations, which he argues were not properly
developed in PCR counsel's supplemental brief or argument. We affirm.
I.
We previously affirmed defendant's conviction and sentence on direct
appeal and assume the reader's familiarity with the facts supporting that opinion.
State v. Gumbs, No. A-5148-12 (App. Div. July 20, 2015) (slip. op. at 3-8)
(Gumbs I). We therefore briefly summarize the facts pertinent to deciding
defendant's appeal of the denial of his second PCR petition.
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On April 5, 2011, police officers effectuated a motor vehicle stop of
defendant and informed him that he was under arrest and they had a warrant to
search his residence. Officers advised defendant of his Miranda1 rights, and
defendant said there was crack cocaine, marijuana, a firearm and possibly bullets
in various locations within the residence, which was a multi-family home
defendant shared with his mother-in-law. Defendant's mother-in-law lived in
the apartment located on the first floor of the home, and defendant lived upstairs
with his girlfriend and child.2 Defendant's mother-in-law was at home when
police arrived. The police then searched the residence and found "crack-
cocaine, a quantity of marijuana, two digital scales, a pipe, and a cutting straw,
along with drug packaging baggies," and "a fully loaded 9mm handgun and
$1,4000 dollars in cash."
Defendant was later convicted of third-degree possession of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); second-
degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of CDS with intent
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
The briefs and transcript of the PCR hearing refer to defendant's mother-in-
law as the person who resided in the multi-family home despite simultaneously
stating that defendant lived with his girlfriend in the home.
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to distribute, N.J.S.A. 2C:35- 5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count four);
fourth-degree possession of a handgun without a permit, N.J.S.A. 2C:58-3(a)
and N.J.S.A. 2C:39-10(a) (count six); and second-degree possession of a
weapon while committing a CDS offense, N.J.S.A. 2C:35-5(a) and N.J.S.A.
2C:39-4.1 (count seven).3
The court sentenced defendant to an aggregate twenty-one-year term of
incarceration with a ten-and-one-half-year period of parole ineligibility, which
included a fifteen-year extended-term sentence on count two, the second-degree
possession of CDS with intent to distribute charge. We affirmed defendant's
conviction and sentence. Gumbs I, slip op. at 25. The Supreme Court denied
defendant's petition for certification. State v. Gumbs, 224 N.J. 282 (2016).
On May 27, 2016, defendant filed his first pro se PCR petition asserting
claims of ineffective assistance of his trial and appellate counsel. Defendant
claimed his trial and appellate counsel were ineffective in several ways,
including that both counsels failed to challenge the trial court's denial of his
motion to suppress evidence. Defendant additionally asserted that trial counsel
failed to: challenge what he asserted was a "wiretap violation"; move to reveal
3
We do not make reference to counts three and five of the indictment because
they were dismissed pre-trial.
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the identity of the confidential informant to which references were made in the
affidavit supporting the issuance of the search warrant; call witnesses in his
favor; object to "one of the prosecutor['s] main witnesses" and to "other crime
evidence"; object to testimony of witnesses during the Miranda hearing;
establish that the State had violated State v. Brimage 4 by failing to make a pre-
indictment plea offer; and "investigate these claims." Further, defendant
asserted appellate counsel failed to challenge the denial of his motion for recusal
of the trial judge and failed to raise constitutional issues.
The PCR court denied defendant's first PCR petition in an order and
opinion dated December 30, 2016. Defendant appealed, and we affirmed the
PCR court's order. State v. Gumbs, No. A-2751-16 (App. Div. May 24, 2018)
(slip op. at 16) (Gumbs II). The Supreme Court denied his petition for
certification on December 13, 2018. State v. Gumbs, 236 N.J. 227 (2018).
On January 13, 2019, more than two years after the court had entered the
order denying his first PCR petition, defendant filed his second pro se PCR
petition, raising eight issues. On June 11, 2019, the PCR court dismissed the
petition as untimely under Rule 3:22-4(b). Defendant moved to reinstate the
4
State v. Brimage, 153 N.J. 1 (1998).
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PCR petition, claiming he had been "precluded from filing a [s]econd PCR
application while [his] appeal was pending in the Appellate Division."
The PCR court granted defendant's motion and reinstated the second pro
se PCR petition. Thereafter, assigned counsel filed a brief supplementing and
incorporating defendant's pro se arguments. Additionally, assigned counsel
argued defendant's second PCR petition was timely, ineffective assistance of
defense and trial counsel, and an evidentiary hearing was required.
On September 28, 2021, the court held oral argument via the Zoom virtual
platform on defendant's second PCR petition. Defendant argued trial counsel
had failed to "fully inform" him of his exposure to an extended-term sentence if
convicted of the charges in the indictment, arguing that the extended-term
sentence he received amounted to approximately twice as much time as had been
offered in the State's plea-bargain offer. Defendant also asserted that trial
counsel had not conducted a proper investigation, which would have revealed
the search was unlawful because the police did not show his mother-in-law the
search warrant or obtain her consent to search his apartment before conducting
the search.
Following oral argument, the PCR court first addressed the timeliness of
the PCR petition, noting it had previously dismissed the petition on timeliness
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grounds and then had reinstated it following defendant's motion for
reinstatement. The court explained it had again revisited the issue and "based
upon the . . . requirements for filing a second PCR, [defendant] is outside the
required period, specifically more than one year since his first PCR was denied."
The court therefore determined the petition was untimely because it "was filed
more than a year" after the December 30, 2016 order denying the first PCR
petition. The court explained that December 30, 2017, was defendant's "latest
filing date for a second PCR" and defendant's second petition had not been filed
until January 13, 2019.
Addressing defendant's substantive arguments that trial counsel's
representation was deficient, the PCR court noted the issues raised in the second
PCR petition had been adjudicated in the first PCR petition, stating the
ineffective assistance of counsel claims "all are made regarding trial counsel.
And those claims have already been litigated . . . . Again, you can't go back and
relitigate things that were properly litigated either on appeal or on the first PCR,
as they were." The court rejected defendant's claim trial counsel was ineffective
by failing to inform him that he could be subject to an extended-term sentence,
noting defendant's exposure to the extended-term sentence was addressed at his
pre-trial conference, defendant signed the pretrial memorandum that referred to
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his exposure to an extended-term sentence, and the transcript of the motion to
suppress hearing on the evidence seized during the search of defendant's
apartment show that he was fully informed of his exposure to an extended-term
sentence.
Regarding defendant's claim trial counsel had failed to challenge the
officers' service of the search warrant when it was executed and the validity of
the search warrant, the PCR court explained "you can't go back and relitigate
things that were properly litigated either on appeal or [i]n the first PCR . . . ."
The court further explained that "everything that was found, was pursuant to a
search warrant, which had been obtained as a result of [wiretap] information.
And it was a search warrant for the proper second floor unit, where he lived. It
didn't require the consent of his mother-in-law . . . ."
At that point in the hearing, counsel for the State commented that there
was a problem with the virtual proceeding as everyone appeared to be "frozen ,"
prompting court staff to intervene in an effort to resolve the technical
difficulties. The court advised counsel that no further argument on the subject
was necessary, stating "[t]he issues are remarkably clear."
The court also advised the parties that it had been made aware of a possible
county or state-wide internet interruption. The court then stated "we can wait a
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little while and see what happens. If it doesn't come back on soon, probably
what I'll do is do a brief memorandum attached to an order." Near the end of
the proceeding, the court again stated, "I am denying the petition for the record.
But I will send a memorandum of the decision and for that reason, I'll indicate
that the time to appeal the petition wouldn’t begin until I issue the written
memorandum." Thereafter, the motion hearing concluded with the parties
expressing thanks to the court.
Later that same day, the PCR court entered an order denying defendant's
second PCR petition. The order stated the petition was denied "for the reasons
set forth in the record . . . on September 28, 2021." The court did not provide a
separate written memorandum with the denial order. This appeal followed.
POINT I
NO REASONS WERE PROVIDED BY THE PCR
JUDGE FOR DENYING DEFENDANT’S CLAIMS.
POINT II
BECAUSE A PRIMA FACIE CASE WAS MADE
THAT DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE FROM COUNSEL, THE PCR COURT
ERRED IN DENYING DEFENDANT’S PETITION
FOR RELIEF.
A. Legal Standards Governing Applications For Post-
Conviction Relief.
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B. Counsel Below Was Ineffective in Failing to Advise
Defendant of his Exposure to a Mandatory Extended
Term and in Failing to Investigate and Thereafter
Appropriately Challenge the Search Warrant.
POINT III
THE MATTER SHOULD BE REMANDED FOR A
PCR HEARING REGARDING DEFENDANT’S PRO
SE ALLEGATIONS WHICH WERE NOT
PROPERLY DEVELOPED IN PCR COUNSEL’S
SUPPORTING BRIEF OR ARGUMENT. (Not Raised
Below)
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004). The de novo standard of review also applies to mixed
questions of fact and law. Id. at 420. Where, as here, an evidentiary hearing
has not been held, it is within our authority "to conduct a de novo review of both
the factual findings and legal conclusions of the PCR court." Id. at 421.
In Strickland v. Washington, the United States Supreme Court established
a two-part standard to determine a claim that a defendant is entitled to PCR
because the defendant had been deprived of the effective assistance of counsel.
466 U.S. 668, 687 (1984). Under Strickland's first prong, a petitioner must show
counsel's performance was deficient by demonstrating counsel's handling of the
matter "fell below an objective standard of reasonableness" and that "counsel
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made errors so serious that counsel was not functioning as the 'counsel'
guaranteed [to] the defendant by the Sixth Amendment." Id. at 687-88.
Under the "'second, and far more difficult prong of the' Strickland
standard," State v. Gideon, 244 N.J. 538, 550 (2021) (quoting State v. Preciose,
129 N.J. 451, 463 (1992)), a defendant "must show that the deficient
performance prejudiced the defense," State v. O'Neil, 219 N.J. 598, 611 (2014)
(quoting Strickland, 466 U.S. at 687). To establish prejudice, "[t]he defendant
must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." Gideon, 244 N.J. at 550-51 (alteration in original) (quoting
Strickland, 466 U.S. at 694).
Proof of prejudice under Strickland's second prong "'is an exacting
standard.'" Id. at 551 (quoting State v. Allegro, 193 N.J. 352, 367 (2008)). A
defendant seeking PCR "must 'affirmatively prove prejudice'" to satisfy the
second prong of the Strickland standard. Ibid. (quoting Strickland, 466 U.S. at
693). "[C]ourts are permitted leeway to choose to examine first whether a
defendant has been prejudiced, and if not, to dismiss the claim without
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determining whether counsel's performance was constitutionally deficient."
State v. Gaitan, 209 N.J. 339, 350 (2012).
When a petitioner files a second or subsequent PCR petition, they must
meet the requirements set forth in Rule 3:22-4. Rule 3:22-4(b)(1) requires
dismissal of a second PCR petition unless:
(1) it is timely under [Rule] 3:22-12(a)(2); and (2) it
alleges on its face either:
(A) that the petition relies on a new rule of
constitutional law, made retroactive to
defendant's petition by the United States
Supreme Court or the Supreme Court of New
Jersey, that was unavailable during the pendency
of any prior proceedings; or
(B) that the factual predicate for the relief sought
could not have been discovered earlier through
the exercise of reasonable diligence, and the facts
underlying the ground for relief, if proven and
viewed in light of the evidence as a whole, would
raise a reasonable probability that the relief
sought would be granted; or
(C) that the petition alleges a prima facie case of
ineffective assistance of counsel that represented
the defendant on the first or subsequent
application for post-conviction relief.
[R. 3:22-4(b).]
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Under Rule 3:22-12(a)(2), no second or subsequent petition for PCR,
"[n]otwithstanding any other provision in [Rule 3:22-12], . . . shall be filed more
than one year after the latest of":
(A) the date on which the constitutional right asserted
was initially recognized by the United States Supreme
Court or the Supreme Court of New Jersey, if that right
has been newly recognized by either of those Courts
and made retroactive by either of those Courts to cases
on collateral review; or
(B) the date on which the factual predicate for the relief
sought was discovered, if that factual predicate could
not have been discovered earlier through the exercise
of reasonable diligence; or
(C) the date of the denial of the first or subsequent
application for post-conviction relief where ineffective
assistance of counsel that represented the defendant on
the first or subsequent application for post-conviction
relief is being alleged.
[R. 3:22-12(a)(2)(A) to (C).]
We are persuaded defendant's second petition was untimely and, thus, the
court did not err in denying the petition on that basis alone. There is no dispute
that defendant filed his first PCR petition on May 27, 2016, resulting in entry of
a December 30, 2016 order denying the petition. As the PCR court correctly
determined, defendant was therefore required under Rule 3:22-12(a)(2) to file
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his second PCR petition within one year of that date. As noted, defendant did
not file the second PCR petition until January 13, 2019.
Defendant maintains that his second PCR petition could not have been
filed any earlier because the appeal from the denial of his first PCR petition was
still pending appeal. See generally R. 3:22-3. This argument, however, has no
support in the law. As the Supreme Court noted in State v. Murray, 162 N.J.
240, 249 (2000), the Rule 3:22-12 time bars are "generally neither stayed nor
tolled by an appellate or other proceeding." See also State v. Dugan, 289 N.J.
Super. 15, 19 (App. Div. 1996); State v. Dillard, 208 N.J. Super. 722, 727 (App.
Div. 1986). Moreover, Rule 3:22-12(a)(2)'s time limits "cannot be relaxed by
invoking Rule 1:1-2 or Rule 3:22-12(a)(1), because the Supreme Court in 2009
and 2010 amended Rule 1:3-4, Rule 3:22-4(b), and Rule 3:22-12 to preclude
enlargement or relaxation." State v. Jackson, 454 N.J. Super. 284, 287 (App.
Div. 2018).
Accordingly, the second PCR petition was untimely under Rule 3:22-
12(a)(2), and, for that reason alone the PCR court properly dismissed defendant's
second petition under Rule 3:22-4(b)(1).
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II.
Although unnecessary to our affirmance of the court's order dismissing
the petition, we briefly address defendant's substantive claims of ineffective
assistance of trial counsel. Defendant argues that counsel failed to "effectively
handle plea negotiations" and advise him of his "penal exposure, including the
extended mandatory sentence," failed to fully investigate his case and to "realize
that the police searched the home without the consent of the occupant" and that
the police never showed the warrant to his mother-in-law who lived in the same
multi-family home, but in a separate apartment. He maintains that "only through
an evidentiary hearing can trial counsel be questioned . . . regarding [his]
understanding of accepting and not accepting the plea offer . . . ."
The PCR court noted that the record is replete with the efforts trial counsel
had made to inform defendant of his exposure should he chose to go to trial,
referring to the fact that certain counts in the indictment "were mandatorily
consecutive [to] others upon conviction at trial . . . ." The court explained that
although he "could have forgotten that he even attended a pre-trial conference,
his signature is on the pre-trial memorandum." Further, the court correctly noted
"you can't go back and relitigate things that were properly litigated either on
appeal or on the first PCR, as they were." See State v. Marshall, 173 N.J. 343,
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351 (2002) (explaining Rule 3:22-5 precludes "consideration of an argument
presented in [a PCR] proceeding . . . if the issue is identical or substantially
equivalent to that adjudicated previously on appeal") (citations omitted). We
agree.
We previously rejected defendant's argument trial counsel's representation
was deficient because counsel failed to properly advise him of the State's plea
offer and failed to challenge the search warrant in our affirmance of the court's
denial of defendant's first PCR petition. Gumbs II, slip op. at 16. Notably,
defendant in his brief, addressing the search warrant issue, acknowledged the
issue had been previously litigated on direct appeal and in the first PCR
proceeding.
Even though defendant acknowledged our prior ruling on his claims
regarding counsel's failure to challenge the search warrant, a review of our prior
decision makes clear that we also addressed his claim counsel's representation
was deficient concerning the State's plea offer. Thus, we reject defendant's
claim the court erred by denying his second PCR petition because Rule 3:22-5
bars re-litigation of both claims. Marshall, 173 N.J. at 351.
Defendant next argues the court erred by denying his second PCR petition
without making any actual findings in support of its decision despite stating on
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the record that it would issue a memorandum with its findings at a later time.
He asserts that an evidentiary hearing or a remand to the PCR court for a written
statement of its findings of fact and conclusions of law is warranted.
The State does not dispute that the PCR court did not issue a written
memorandum along with its order denying the petition but asserts that the
transcript of the PCR hearing "indicates the reasoning of the PCR court's
decision" and that we should "take the entire record into consideration and deny
defendant's appeal." The State maintains that irrespective of the court's failure
to author a written memorandum or opinion, defendant's second PCR petition is
time-barred.
Rule 3:22-11 provides that "[i]n making final determination upon a
petition, the court shall state separately its findings of fact and conclusions of
law, and shall enter a judgment, which shall include an appropriate order . . . ."
Applying this rule, we discern no error by the PCR court in issuing an oral rather
than a written decision denying defendant's motion. See State v. Drisco, 355
N.J. Super. 283, 287 (App. Div. 2002) (affirming a PCR court's denial of
defendant's petition in a thorough oral decision).
Here, the record shows that after some technical difficulties arose during
the hearing, the court stated, "[i]f it doesn’t come back on soon, probably what
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I will do is do a brief memorandum attached to an order." The record also shows
that by the time counsel for the State raised a concern about the virtual
proceeding, the court had completed its ruling on the untimeliness of defendant's
petition. The record further confirms that the PCR court made factual findings
concerning the timing of the defendant's first and second PCR petitions and
supported its decision by stating its findings and legal conclusions, before
turning to address the merits of defendant's claims. The court's oral decision
therefore thoroughly addressed the timeliness of defendant's second PCR.
As to whether the court erred by not filing a memorandum addressing the
merits of defendant's claims, we note that the PCR court explained that it had
concluded defendant had raised these same arguments in his first PCR petition.
And, although brief, the court further found that because the claims had been
previously litigated, defendant is barred under Rule 3:22-5 from relitigating
those same claims in his second PCR petition. In our view, the court's oral
decision was therefore more than sufficient to explain the basis for its rejection
of the claims. And, in any event, the court had previously determined the
petition was untimely.
Moreover, we are satisfied that there is no legal requirement that the court
provide a written memorandum supporting its decision on a PCR petition, as
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argued by defendant. Rule 3:22-11 has no such mandate. All that is required is
that the court "in making final determination upon a petition, . . . state separately
its findings of fact and conclusions of law." Here, the court stated its findings
and conclusions of law in support of its determination defendant's petition was
untimely and properly denied the petition on that basis.
Additionally, defendant's argument that he is entitled to an evidentiary
hearing on his petition, including to address his pro se allegations that were not
"properly developed" by PCR counsel is unavailing.
The pertinent rule states:
A defendant [is] entitled to an evidentiary hearing only
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 that cannot be resolved
by reference to the existing record, and a determination
that an evidentiary hearing is necessary to resolve the
claims for relief.
[R. 3:22-10(b).]
Because defendant failed to establish a prima facie case of ineffective
assistance of counsel under Strickland, no evidentiary hearing was warranted.
See Marshall, 148 N.J. at 158. Moreover, PCR counsel incorporated defendant's
pro se arguments in the supplemental brief, which stated, "this submitted brief
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hereby supplements and incorporates [d]efendant's second pro se petition for
PCR," as permitted under Rule 3:22-6(d).
To the extent we have not specifically addressed any of defendant's
arguments, it is because we have determined they are of insufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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