STATE OF NEW JERSEY v. KEVIN HOLMES (2013)

Defendant appeals from the October 11, 2011 Law Division order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel.   For the reasons that follow, we affirm.

The record reveals that, following a jury trial, defendant was convicted of one count of second-degree burglary, N.J.S.A. 2C:18–2(a)(1).   The charges were based on an incident where defendant forced his way into the apartment of Jenysia Ruiz, his former paramour.   We set forth the factual background to defendant's conviction in an earlier opinion:

Defendant and his former paramour of three years mutually agreed upon an informal shared child custody arrangement for their then thirteen-month old daughter.   On Christmas Eve 2005, defendant was scheduled to drop the child at the home of the mother early in the morning.   At that time, the child's mother was romantically involved with another man.

Shortly after 7:00 a.m., defendant arrived without his daughter——apparently not intending to drop the child off——and approached the door of the mother's residence.   Immediately upon opening the door to the apartment, defendant entered, and a fight quickly ensued between defendant and the replacement boyfriend.   During the struggle, defendant was injured, suffering a stab wound to his back that had been inflicted by the boyfriend, apparently in self-defense.   Defendant immediately fled the scene.

Around 8:00 a.m., the police arrived in response to a 9–1–1 call.   Defendant's former paramour and her boyfriend accompanied the police officers to police headquarters where they provided statements of what took place earlier that morning in their apartment.   Later in the day, defendant also arrived at police headquarters where, upon observing defendant's back wound, the police escorted defendant to the emergency room at Cooper Hospital in Camden.

Following a procedure in the hospital triage that determined defendant's medical treatment could be deferred, he spoke with Detective Scott Wallace, who reported that defendant admitted forcing his way into the apartment and that once inside, a fight broke out.   Detective Wallace testified that defendant had been angry that morning because he had to drop off his daughter at a location where the new boyfriend was present.   According to Detective Wallace, defendant “quoted to me that he knew he fucked up, and that's why he left [the apartment].”

[State v. Holmes, No. A–6103–07 (App.Div. March 3, 2010) (slip op. at 2–4).]

Defendant was thereafter sentenced to a five-year term of incarceration, subject to an eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. He appealed and raised two issues:  (1) the prosecutor's comments in summation denied him his right to a fair trial, and (2) the court's instruction on his right to remain silent suggested that he had an obligation to testify.   We rejected these arguments and affirmed the conviction.  Holmes, supra, No. A–6103–07 (slip op. at 9).   Our Supreme Court denied defendant's petition for certification.  State v. Holmes, 202 N.J. 45 (2010).

Thereafter, defendant filed a PCR petition, alleging that he had been denied the effective assistance of trial counsel.   On September 23, 2011, Judge James W. Palmer, Jr. heard oral argument on defendant's PCR application.   Judge Palmer denied the application without conducting an evidentiary hearing.   In a written opinion, he stated that defendant “failed to demonstrate an ineffective assistance of counsel claim․  [D]efendant must do more than make ‘bald assertions' of ineffective assistance of counsel.  State v. Cummings, 321 N.J.Super. 154, 170 [ (App.Div.), certif. denied, 162 N.J. 199 (1999) ].”

On appeal, defendant raises the following issues:

POINT I:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. BY NOT CONDUCTING A THOROUGH PRETRIAL INVESTIGATION, TRIAL COUNSEL FAILED TO PRESENT RELEVANT INFORMATION AND ELICIT RELEVANT TESTIMONY WHICH WOULD HAVE DEMONSTRATED THE STATE DID NOT ESTABLISH ALL REQUISITE ELEMENTS OF BURGLARY BEYOND A REASONABLE DOUBT.

C. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT'S INTEREST AT SENTENCING BY FAILING TO DEMONSTRATE THE APPLICABILITY OF VARIOUS MITIGATING FACTORS, BY FAILING TO ADDRESS THE INAPPLICABILITY OF TWO OF THE THREE AGGRAVATING FACTORS FOUND BY THE TRIAL COURT TO EXIST, AND BY FAILING TO PRESENT A COGENT ARGUMENT REQUESTING THE TRIAL COURT IMPOSE A SENTENCE COMMENSURATE WITH A THIRD DEGREE OFFENSE.

We conclude that these arguments are without merit, and affirm the denial of PCR substantially for the reasons stated by Judge Palmer in his cogent written opinion issued on October 11, 2011.   We add the following.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).  “First, the defendant must show ․ that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by the Sixth Amendment.”   Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693).   Second, the defendant must show that he suffered prejudice due to counsel's deficient performance.  Ibid. To establish prejudice, the defendant must show by “a reasonable probability” that the deficient performance “materially contributed to defendant's conviction [.]”  Id. at 58.

To establish that his attorney's performance was deficient, a defendant must show that his attorney's actions “were outside the wide range of professionally competent assistance.”  Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed.2d at 695.   In addition, to show that he was prejudiced by the deficient performance of his attorney, a 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.”  Id. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.

While a “claim of ineffective assistance of ․ counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]” it remains within the court's discretion to determine whether such a hearing is necessary.  State v. Preciose, 129 N.J. 451, 462 (1992).  “An evidentiary hearing ․ is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record.”   Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22–10 (2013).  “[I]n order to establish a prima facie claim, a petitioner 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.”  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999).

Defendant argues that he was denied the effective assistance of counsel because his trial attorney failed to present relevant evidence which would have established that the State had not proven all of the elements of burglary.   We disagree.

Defendant contends that his attorney should have presented evidence showing that he was entitled to be in the Ruiz apartment at the time of the incident.   He also contends that his attorney did not effectively cross-examine Ruiz. Defendant submitted an affidavit from Ruiz in support of his PCR petition, in which she stated that defendant had his possessions in her apartment and had stayed in the apartment overnight.   However, Ruiz also stated that she was “temporarily upset” with defendant and “attempted to keep him out” of the apartment.

We note that the affidavit from Ruiz was submitted four years after the trial, and after she reunited with defendant and they became engaged to be married.   At defendant's trial, Ruiz and her then-boyfriend testified that defendant was not permitted to enter the apartment at the time of the incident.

Defendant additionally asserts it was critical that he testify to contradict the evidence presented by the prosecution.   Again, we disagree.   If defendant wanted to testify on his own behalf, he could have done so;  however, he and his attorney decided, as a matter of trial strategy, that he would not testify because that would allow the State to admit defendant's criminal record into evidence.

Finally, even if defendant's attorney erred in his handling of the case, we are satisfied the result of the trial would have been the same because there was overwhelming evidence that defendant was not allowed to enter Ruiz's apartment.

Defendant also argues that his trial attorney was deficient at sentencing because he failed to establish the applicability of certain mitigating factors, did not dispute the applicability of two of the three aggravating factors found by the trial court, and did not argue in support of a sentence commensurate with a third-degree offense.   Again, we disagree.   The record supports the PCR court's determination that, even if defendant's counsel had argued for findings of additional mitigating factors, the trial judge would not have found them.

Affirmed.

PER CURIAM