STATE OF NEW JERSEY VS. DAVID L. GASKINS (09-06-0258, SUSSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3877-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID L. GASKINS,
Defendant-Appellant.
___________________________
Submitted April 2, 2019 – Decided June 10, 2019
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Sussex County, Indictment No. 09-06-0258.
Joseph E. Krakora, Public Defender, attorney for
appellant (Craig S. Leeds, 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 David L. Gaskins appeals from the denial of his petition for
post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Following his convictions for second-degree conspiracy to distribute
cocaine, N.J.S.A. 2C:5–2 and 2C:35–5(a)(1) and (b)(2); third-degree conspiracy
to distribute cocaine within 1000 feet of a school, N.J.S.A. 2C:5–2 and 2C:35–
7; second-degree conspiracy to distribute cocaine within 500 feet of a public
building, N.J.S.A. 2C:5–2 and 2C:35–7.1; second-degree possession of cocaine
with intent to distribute, N.J.S.A. 2C:35–5(a)(1) and (b)(2); third-degree
possession of cocaine with intent to distribute within 1000 feet of school
property, N.J.S.A. 2C:35–5(a) and 2C:35–7; and second-degree possession of
cocaine with intent to distribute within 500 feet of a public building, N.J.S.A.
2C:35–5(a) and 2C:35–7.1, defendant filed a direct appeal. We affirmed his
conviction and sentence in an unpublished opinion, State v. Gaskins, No. A–
1157-13 (App. Div. April 26, 2016), and the Supreme Court denied defendant's
petition for certification. State v. Gaskins, 227 N.J. 236 (2016). The facts
regarding the underlying offenses, and the issues raised on direct appeal are set
forth in our opinion and need not be repeated here.
Defendant filed a timely pro se PCR petition and a supplemental
certification with the assistance of assigned PCR counsel. In his pro se petition,
A-3877-17T2
2
defendant failed to answer the question requiring him to "state with specificity
the facts upon which the claim for relief is based, legal arguments and all
claims." In his supplemental certification, defendant claimed his "case was the
subject of many errors by the court during the pretrial process and . . . trial which
resulted" in his conviction. He further certified that he did not "present certain
facts during the trial, because the [State] fraudulently prevented [him] from
discovering them."
PCR counsel also filed a twenty-page brief in which he argued: 1)
defendant's claims were not procedurally barred under Rule 3:22; 2) trial counsel
was ineffective under the two-prong test set out in Strickland v. Washington,
466 U.S. 668 (1984); and 3) defendant was entitled to an evidentiary hearing.
PCR counsel's brief specifically incorporated defendant's statements contained
in his supplemental certification, and further argued that a "combination of
errors and ineffective assistance of counsel[,] and errors of the [c]ourt lay the
basis" for defendant's petition.
At oral argument, PCR counsel advised the court that the statements in
defendant's supplemental certification were based upon information provided by
defendant, and restated that trial counsel failed to introduce "testimony and
facts" on defendant's behalf and "didn't forcefully enough attempt to bring out
A-3877-17T2
3
these facts." PCR counsel also represented that defendant maintained the State
fraudulently prevented him from discovering facts. After the court noted that
there was "nothing specific asserted as to that allegation of fraud," PCR counsel
consulted with defendant, who then articulated an "issue of fraud" relating to
the original judgment of conviction's reference to a "count seven." The PCR
court addressed defendant's concern by noting a Change of Judgment of
Conviction was entered to correct the inadvertent reference to a count seven
because only six counts were charged in the indictment.
After hearing oral arguments, the court denied defendant's petition in a
February 21, 2018 order. In the court's oral decision rendered that day, the PCR
judge found that the Change of Judgment of Conviction adequately "address[ed]
the [c]ount [s]even question" as it related to defendant's fraud allegation and the
petition otherwise was "lacking in any specificity with regard to any [claim] of
ineffective performance by trial counsel." On appeal, defendant raises the
following issue:
POINT I
DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF POST-CONVICTION RELIEF
COUNSEL.
A-3877-17T2
4
Defendant urges us to reverse the February 21, 2018 order and remand his
petition to the PCR judge for the assignment of a "newly assigned competent
PCR [c]ounsel." Like his claims against trial counsel, however, defendant has
not supported his claims against PCR counsel with a sworn statement "alleg[ing]
facts sufficient to demonstrate counsel's alleged substandard performance." See
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Nor has
defendant specifically challenged the PCR judge's findings.
This appeal, nevertheless, requires us to apply two standards. The first
governs claims of ineffective assistance of trial counsel, and the second controls
claims against PCR counsel. We briefly discuss these two, slightly different
standards.
The principles governing our analysis of ineffective assistance of trial
counsel are well settled. A defendant who files a PCR petition must establish,
by a preponderance of the credible evidence, entitlement to the requested relief.
State v. Preciose, 129 N.J. 451, 459 (1992). To carry that burden, a defendant
must allege and articulate specific facts, which "provide the court with an
adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565,
579 (1992).
A-3877-17T2
5
The mere assertion of a PCR claim does not entitle a defendant to an
evidentiary hearing. Cummings, 321 N.J. Super. at 170. To establish a prima
facie claim of ineffective assistance of counsel, the defendant must demonstrate
a reasonable likelihood of success under the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668 (1984). That is, the defendant must
show: (1) the deficiency of his counsel's performance; and (2) prejudice to his
defense. Id. at 687; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland two-pronged analysis in New Jersey) (Strickland/Fritz test). "[I]n
order to establish a prima facie claim, [the defendant] must do more than make
bald assertions that he was denied the effective assistance of counsel. He must
allege facts sufficient to demonstrate counsel's alleged substandard
performance." Cummings, 321 N.J. Super. at 170.
Under the first prong of the Strickland/Fritz test, a petitioner "must show
that counsel's performance was deficient." Strickland, 466 U.S. at 687. It must
be demonstrated that counsel's representation "fell below an objective standard
of reasonableness" and that "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Strickland, 466 U.S. at 687–88; Fritz, 105 N.J. at 52, 60–61. The second prong
requires a defendant to show that the defect in counsel's performance so
A-3877-17T2
6
"prejudiced defendant's rights to a fair trial" that there is a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694.
Employing this standard, we are satisfied from our review of the record
that defendant failed to make a prima facie showing of ineffectiveness of trial
counsel within the Strickland/Fritz test. We affirm for the reasons stated by the
PCR judge in his well-reasoned oral decision.
We next address defendant's claim that he was denied the effective
assistance of PCR counsel, noting that this argument was not raised before the
PCR judge. The performance of PCR counsel is examined under a different
standard than the standard applicable to trial counsel. Regarding a claim that
PCR counsel was ineffective, the Supreme Court has stated:
PCR counsel must communicate with the client,
investigate the claims urged by the client, and
determine whether there are additional claims that
should be brought forward. Thereafter, counsel should
advance all of the legitimate arguments that the record
will support. If after investigation counsel can
formulate no fair legal argument in support of a
particular claim raised by defendant, no argument need
be made on that point. Stated differently, the brief must
advance the arguments that can be made in support of
the petition and include defendant's remaining claims,
either by listing them or incorporating them by
reference so that the judge may consider them.
A-3877-17T2
7
[State v. Webster, 187 N.J. 254, 257 (2006).]
"The remedy for counsel's failure to meet the[se] requirements . . . is a
new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div.
2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)). "This relief is not predicated
upon a finding of ineffective assistance of counsel under the relevant
constitutional standard. Rule 3:22-6(d) imposes an independent standard of
professional conduct upon an attorney representing a defendant in a PCR
proceeding." Ibid. (citations omitted).
We determined in Hicks the defendant had failed to receive the benefit of
the attorney's expertise, in part because the attorney limited his performance to
representing the arguments the defendant included in his own pro se petition.
Id. at 374. In addition, there was no evidence he conducted an independent
evaluation of defendant's case to determine whether there were other grounds to
attack defendant's conviction, and there were indications PCR counsel had not
even reviewed the file, based on comments to the court in oral argument that
betrayed ignorance of the essential facts of the underlying case. Ibid. We
remanded for a new PCR proceeding. Id. at 375.
PCR counsel is not, however, required to bolster claims raised by a
defendant that are without foundation, but rather, only those "the record will
A-3877-17T2
8
support." Webster, 187 N.J. at 257. With this standard in mind, we consider
defendant's arguments as they pertain to his assigned PCR counsel.
Defendant faults PCR counsel for failing to argue at oral argument, and
failing to provide the PCR court "with [any] specifics, whatsoever, to support
[defendant's] claims." He also argues that PCR counsel "failed to counsel . . .
[him] adequately with respect to the supplemental [c]ertification," resulting in
the preparation of a certification that "fails to state with specificity the
[d]efendant's claims." According to defendant, "PCR counsel's failure to submit
anything to support the allegations" resulted in his petition for PCR "being
wrongfully denied." Finally, defendant maintains PCR counsel should have
prepared an amended petition "set[ting] forth the issues with specificity," and
having not done so, "PCR counsel undoubtedly doomed his . . . case."
Unlike in Hicks, where it was apparent that PCR counsel had failed to
meet his obligations, we cannot conclude on the record before us that PCR
counsel failed to discharge his proper responsibilities and that a remand for a
new hearing is required. For example, it is clear from defendant's participation
in oral argument, and counsel's representations, that PCR counsel reviewed the
file, and consulted with his client. In this regard, defendant concedes on appeal
A-3877-17T2
9
that his supplemental certification "was prepared with PCR [c]ounsel's
guidance" as "PCR [c]ounsel's name and address are on the [c]ertification."
Further, on appeal defendant has not alleged with even the slightest degree
of specificity what other meritorious issues PCR counsel could, or should have,
raised. He has not claimed PCR counsel failed to communicate with him, or
failed to investigate any claims against trial counsel "urged by" defendant. See
Webster, 187 N.J. at 257. Most importantly, defendant has failed to even allege,
must less certify, what specific information PCR counsel should have included
in his supplemental certification, or any amended petition.
By failing to identify specifically what his supplemental certification
should have contained, defendant has not demonstrated that PCR counsel failed
to develop a "legitimate argument[] that the record will support." See ibid. It
thus cannot be said that the issues raised, or not raised, by PCR counsel were
the result of his failure to engage in a reasonable investigation and effort, or
instead whether the record simply failed to support a valid claim of ineffective
assistance of trial counsel.
Consequently, we discern no violation of the dictates of Rue, 175 N.J. at
4. We therefore conclude that defendant has failed to assert a cognizable cl aim
of inadequate performance by PCR counsel under the Hicks test.
A-3877-17T2
10
Affirmed.
A-3877-17T2
11