STATE OF NEW JERSEY VS. KENNETH BAYNE (11-04-0425, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-1549-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH BAYNE,
Defendant-Appellant.
__________________________
Submitted January 15, 2019 – Decided March 12, 2019
Before Judges Suter and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 11-04-0425.
Joseph E. Krakora, Public Defender, attorney for
appellant (Joseph Anthony Manzo, Designated
Counsel, on the brief).
Fredric M. Knapp, Morris County Prosecutor, attorney
for respondent (John McNamara, Jr., Chief Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Kenneth Bayne appeals the denial of his petition for post-
conviction relief (PCR) without an evidentiary hearing. For reasons that follow,
we affirm.
In 2010, defendant's cousin, E.T., disclosed to her school guidance
counselor that defendant sexually abused her for several years when she was
younger than thirteen. N.T., who was E.T.'s younger sister, also disclosed to a
caseworker with the Division of Youth and Family Services that defendant had
sexually abused her on multiple occasions when she was less than thirteen.
After defendant's arrest, he waived indictment and was charged in a
twenty-nine count accusation with multiple counts of aggravated sexual assault,
sexual assault and endangering the welfare of children. In a negotiated
agreement, he pleaded guilty to six counts, which included: first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (victim N.T.); first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (victim E.T.); two counts of
second-degree sexual assault, N.J.S.A. 2C:14-2(b) (victim N.T.); fourth-degree
criminal sexual contact, N.J.S.A. 2C:14-3(b) (victim E.T.); and second-degree
sexual assault, N.J.S.A. 2C:14-2(b) (victim E.T.). The State agreed to
recommend a maximum aggregate sentence of twenty-years imprisonment and
to dismiss the other counts.
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The sentencing judge found aggravating factors two (gravity of harm),
three (risk of re-offense), four (violation of public trust) and nine (need for
deterrence)1 and mitigating factor seven (no prior criminal history), 2 but gave
more weight to the aggravating factors. Defendant was sentenced in accordance
with the plea agreement to an aggregate twenty-year term at the Adult
Diagnostic and Treatment Center (Avenel) for sexual offenders with an eighty-
five percent period of parole ineligibility under the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. He also was sentenced to parole supervision for
life (PSL), N.J.S.A. 2C:43-6.4, the requirement to register as a Megan's Law
offender, N.J.S.A. 2C:7-1 to -19, a period of parole supervision after release,
mandatory fines and penalties, and no contact with the victims.
Defendant's motion for reconsideration of his sentence was denied.
Defendant did not file a direct appeal from his convictions or sentence.
Defendant filed a timely pro se PCR petition alleging ineffective
assistance of counsel. He claimed there was a lack of pre-trial investigation by
his attorney, who he said did not "properly meet with [him] to prepare for trial"
and then spoke with his stepfather about the case without his consent. His trial
1
N.J.S.A. 2C:44-1(a)(1), (2), (3) and (9).
2
N.J.S.A. 2C:44-1(b)(7).
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attorney never visited him in the county jail and their conversations were brief.
He failed to file a motion to suppress a statement defendant gave to the police
when he was arrested. Defendant claimed he was under duress when he admitted
to the crimes at the plea hearing. He argued his trial counsel should have asked
the judge at sentencing to consider additional mitigating factors based on his
claim he was subjected as a child to "covert incest,"3 that he said could have
explained his sexual behavior. Defendant argued the mitigating and aggravating
factors should have balanced out, allowing for a more appropriate plea bargain.
Defendant's attorney did not take testimony from any character witnesses, but
he did submit their letters to the court. Defendant claimed a report from Dr.
Jeffrey Singer, who evaluated defendant, was not presented to the court at his
3
The term is not defined in the most recent version of Stedman's Medical
Dictionary. Defendant relies on a publication by Dr. Kenneth Adams. See
Kenneth Adams, Silently Seduced: When Parents Make Their Children Partners
(1987). He described covert incest as "when a child becomes the object of a
parent's affection, love, passion, and preoccupation. The parent, motivated by
the loneliness and emptiness created by a chronically troubled marriage or
relationship, makes the child a surrogate partner." Ibid. He further explained
that in those cases, "the boundary between caring and incestuous love is crossed
when the child exists to meet the needs of the parent rather than the child." Ibid.
Dr. Adams has also described "classic covert incest" as "not having any overt
sexual touching" but having a "sexual element." Robert Weiss, Understanding
Covert Incest: An Interview With Kenneth Adams, Psychology Today (Oct. 13,
2015), https://www.psychologytoday.com/us/blog/love-and-sex-in-the-digital-
age/201510/understanding-covert-incest-interview-kenneth-adams.
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sentencing. Taking all this together, defendant argued he had shown a prima
facie case of ineffective assistance.
Defendant's PCR counsel confirmed that Dr. Singer's report was not
submitted to the sentencing judge but argued it had relevance because it
confirmed defendant was "amenable to rehabilitation and [was] a low-risk
offender." However, the report did not say defendant was the victim of sexual
abuse or mention covert incest.
The PCR judge denied defendant's petition. In his written statement of
reasons, the PCR court noted that defendant raised a number of issues in his
PCR petition: he should obtain relief from certain penalties because of his
indigence; the sentencing judge erred in evaluating aggravating and mitigating
factors and by imposing consecutive sentences; and his counsel was ineffective
by not investigating defendant's past history of sexual abuse and failing to move
to suppress defendant's statement to the police. The PCR court held that
defendant was barred by Rule 3:22-4(a) from raising issues in his PCR petition
about his sentencing that could have been raised in a direct appeal, but were not.
It rejected defendant's claim of ineffective assistance and declined to conduct an
evidentiary hearing. Defendant did not report any history of sexual abuse. In
the presentencing examination report defendant referred to his mother as
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"loving, emotional" and his stepfather as "supportive and logical." Although
defendant claimed to have been "overexposed" to sex as a youth, he did not
explain the nature of that exposure. Dr. Singer's report did not mention any
sexual abuse of defendant or support defendant's claim that abandonment or
covert incest affected his conduct. He did not submit any evidence of these
claims, nor did he submit any expert reports.
The PCR court rejected defendant's claim that his trial counsel did not
meet with him; at his plea hearing, defendant said he and counsel had a sufficient
opportunity to review discovery. Defendant's statement to the police was
provided after defendant was given his Miranda4 rights and he signed the waiver
form. There was no evidence the statement was involuntary.
Defendant presents the following issues for our consideration in his
appeal:
POINT I
THE LOWER COURT ERRED IN FINDING THAT
THE PETITIONER HAD EFFECTIVE
REPRESENTATION DURING SENTENCING AND
THEREBY FAILED TO MAKE A PRIMA FACIE
CLAIM OF INEFFECTIVE ASSISTANCE OF
COUNSEL.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
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POINT II
BECAUSE THE DEFENDANT MADE A PRIMA
FACIE SHOWING OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL, THE COURT MISAPPLIED
ITS DISCRETION IN DENYING POST-
CONVICTION RELIEF WITHOUT CONDUCTING
A FULL EVIDENTIARY HEARING.
We are not persuaded by 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 (1984) and adopted by our Supreme Court in State
v. Fritz, 105 N.J. 42 (l987). In order to prevail on an ineffective assistance of
counsel claim, defendant must meet a two-prong test by establishing that: (l)
counsel's performance was deficient and the errors made 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 694.
In the plea bargain context, "a defendant must prove 'that there is a
reasonable probability that, but for counsel's errors, [he] would not have pled
guilty and would have insisted on going to trial,'" State v. Gaitan, 209 N.J. 339,
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351 (2012) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)), and that
"a decision to reject the plea bargain would have been rational under the
circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
Defendant's sole argument 5 on appeal is that his counsel was ineffective
by not investigating and retaining an expert witness to explain that defendant's
conduct was influenced by his alleged abandonment and the covert incest he
claims he experienced. Defendant contends that if this evidence were
developed, his counsel could have argued at sentencing for additional mitigating
factors that then could have resulted in a lower sentence.
"'[W]hen a petitioner claims his trial attorney inadequately investigated
his case, he must assert the facts that an investigation would have revealed,
supported by affidavits or certifications based upon the personal knowledge of
5
Defendant abandoned any other claims in his PCR petition by not addressing
them in his appellate brief. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657
(App. Div. 2011) (citing Jefferson Loan Co. v. Session, 397 N.J. Super. 520,
525 n.4 (App. Div. 2008) and Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App.
Div. 2001)); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on
R. 2:6-2 (2019). Even if we were to consider the other claims, defendant is
precluded from raising an issue in his PCR petition that could have been raised
on direct appeal. State v. McQuaid, 147 N.J. 464, 483 (1997). As explained by
the Court in McQuaid, "[a] defendant ordinarily must pursue relief by direct
appeal, see R. 3:22-3, and may not use post-conviction relief to assert a new
claim that could have been raised on direct appeal." Ibid. Defendant's other
issues about sentencing could have been raised on direct appeal.
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the affiant or the person making the certification.'" State v. Porter, 216 N.J. 343,
353 (2013) (alteration in original) (quoting State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999)). Defendant's allegations are supported only by self -
serving assertions and bare allegations. See Cummings, 321 N.J. Super. at 170(to establish a prima facie case, more than bald assertions of ineffective
assistance of counsel are required).
Defendant presented no evidence to the PCR court that supported his
claim about his trial counsel's lack of investigation. He had no expert who
certified to, or was prepared to testify about, his claim that abandonment and
covert incest affected his conduct. Dr. Singer's report noted that defendant's
background was psychologically complex and his father abandoned the family,
but the report did not mention covert incest. It also noted that he had no history
of sexual abuse, did not suffer from any major mental illness and that his
stepfather remained a major support for him. In the presentence report,
defendant denied having been sexually abused.
Defendant is speculating that the court would have mitigated his sentence
but for counsel's errors. He never alleges that he would have proceeded to trial
in this case but for his counsel's alleged failures.
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We are satisfied that defendant did not show his attorney's conduct was
unreasonable under prevailing professional norms. Strickland, 466 U.S. at 688.
He did not show the proceeding would have been different because he has yet
to show proof of the claims he is asserting.
We agree with the PCR court that defendant failed to show a prima facie
case of ineffective assistance within the Strickland/Fritz test. Accordingly, the
PCR court correctly concluded that an evidentiary hearing was not warranted.
See State v. Preciose, 129 N.J. 451, 463-64 (1992).
Defendant's further arguments are without sufficient merit to warrant a
further discussion in this written opinion. R. 2:11-3(e)(2).
Affirmed.
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