STATE OF NEW JERSEY VS. KAWAN BOLT (06-03-0367, BURLINGTON AND MERCER COUNTIES AND STATEWIDE)

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0063-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KAWAN BOLT,

Defendant-Appellant. _____________________________

Submitted November 6, 2019 – Decided December 18, 2019

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Burlington and Mercer Counties, Indictment No. 06-03-0367.

Joseph E. Krakora, Public Defender, attorney for appellant (Howard Woodley Bailey, Designated Counsel, on the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Daniel Opatut, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant appeals from an order entered by the Law Division on August

29, 2018, which denied his petition for post-conviction relief (PCR). We affirm.

I.

In March 2006, defendant and Victor Baylor were charged with first-

degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree attempted theft,

N.J.S.A. 2C:5-1, N.J.S.A. 2C:20-3(a) (count two); fourth-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(4) (count three); and second degree possession of

a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). Defendant

and Baylor were tried jointly before a jury.

The evidence presented at trial established that on October 24, 2005, two

masked men entered a delicatessen on Brunswick Avenue in Trenton. The

shorter man put a gun to the owner's head and demanded money, while the taller

man punched the owner. One of the store's employees grabbed the short man's

gun and a struggle ensued. The tall man fought the employee and punched him

in the face.

The perpetrators' masks fell off and their faces were revealed. The store's

owner and an employee recognized both perpetrators as frequent customers. The

owner took a small knife and stabbed the taller man above the right eye and on

the left side of his abdomen. The perpetrators left the store without taking any

A-0063-18T4 2 money. The incident was reported to the Trenton police, who contacted local

hospitals and learned that a man had come to a hospital with stab wounds above

the right eye and on the left side of the abdomen.

A detective went to the hospital and spoke with the injured man, who was

identified as defendant. He claimed he had been "jumped." The police brought

one of the store's employees to the hospital. He identified defendant as one of

the perpetrators of the robbery.

The detective learned that defendant had signed in at the hospital under a

false name. He informed defendant of his Miranda rights.1 The detective asked

defendant how he came to be injured.

He stated that two men tried to rob him, and he was injured when he fought

with them. The detective told defendant he did not believe him and said he

would be questioned further at the police station.

Defendant then admitted he lied when he stated he was a victim of a

robbery. He told the detective he walked into the deli while a robbery was in

progress. He claimed he tried to help the employees but was stabbed in the

struggle. Later that evening, employees from the deli identified Baylor as the

other perpetrator.

1 Miranda v. Arizona, 384 U.S. 436 (1966). A-0063-18T4 3 The jury found defendant guilty on all counts.2 The trial court merged

counts two, three, and four with count one, and sentenced defendant to twelve

years of incarceration, with an 85% period of parole ineligibility as prescribed

by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a

four-year concurrent term for an outstanding probation violation.

II.

Defendant appealed from the judgment of conviction (JOC) dated March

9, 2007, and raised the following arguments:

POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE ORAL STATEMENTS MADE BY HIM TO THE POLICE PURSUANT TO CUSTODIAL INTERROGATION WITHOUT HAVING BEEN ADVISED OF HIS MIRANDA WARNING, WHICH NECESSARILY TAINTED HIS ORAL STATEMENTS MADE IMMEDIATELY THEREAFTER AFTER HE WAS ADVISED OF HIS WARNING.

POINT II THE TRIAL COURT'S INDEPENDENT QUESTIONING OF THE DEFENDANT CAST ITSELF INTO THE ROLE OF AN ADVOCATE BY ESSENTIALLY PROJECTING ITS OWN DISBELIEF OF THE DEFENDANT'S TESTIMONY. (Not raised below).

2 Baylor was convicted of the same charges. See State v. Baylor, No. A-3891- 07 (App. Div. Aug. 24, 2010). A-0063-18T4 4 POINT III THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT THE FACT THE DEFENDANT GAVE A FALSE NAME TO THE HOSPITAL COULD BE UTILIZED AS DEMONSTRATING A CONSCIOUSNESS OF GUILT ON HIS BEHALF.

POINT IV THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We affirmed defendant's convictions and sentence. State v. Bolt, No. A-

6198-06 (App. Div. Aug. 4, 2010). Defendant then filed a petition for

certification with the Supreme Court. The Court denied the petition. State v.

Bolt, 205 N.J. 77 (2011).

On August 15, 2012, defendant filed a verified petition for PCR. The

court found the petition was barred by Rule 3:22-12(a)(1) because it had not

been filed within five years after the date the JOC was entered, and defendant

did not establish that his failure to file a timely petition was due to excusable

neglect. The PCR court also found defendant did not present a prima facie case

of ineffective assistance of counsel, and denied his request for an evidentiary

hearing. The PCR court memorialized its decision in an order dated September

24, 2014.

Defendant appealed from the court's order. We reversed and remanded

the matter for further proceedings. State v. Bolt, No. A-2017-14 (App. Div.

A-0063-18T4 5 Nov. 17, 2016) (slip op. at 8). We stated that on remand, the PCR court should

appoint new counsel to represent defendant and counsel should be afforded the

opportunity for oral argument. Ibid. We also stated that PCR counsel could

seek leave to file certifications in support of the petition, and the court may

reconsider its decision that an evidentiary hearing was not required. Id. at 8-9.

The matter was thereafter transferred to Burlington County.

III.

The PCR court appointed new counsel for defendant, and defendant filed

a certification in support of his petition. PCR counsel filed a brief in which he

argued that the petition was not barred by Rule 3:22-12(a)(1). Counsel also

argued that defendant was denied the effective assistance of counsel because

trial counsel failed to: consult with defendant to review the evidence and

prepare essential defenses; object to the trial court's questioning of defendant;

object to numerous instances of prosecutorial misconduct; argue applicable

mitigating factors, and seek a reduced sentence. In addition, PCR counsel

argued that the court should consider the "totality" of the trial errors and asserted

that defendant was denied the effective assistance of appellate counsel.

On February 2, 2018, the PCR court conducted oral argument. Defendant

was present and commented on the record. The PCR court thereafter filed a

A-0063-18T4 6 written opinion in which it concluded that the petition was barred under Rule

3:22-12(a)(1) because defendant failed to establish his failure to file a timely

petition was due to excusable neglect.

The PCR court nevertheless considered the petition on the merits and

found that defendant failed to establish a prima facie case of ineffective

assistance of trial or appellate counsel. The court therefore determined that

defendant was not entitled to an evidentiary hearing. The court entered an order

denying PCR. This appeal followed.

On appeal, defendant argues that: (1) the PCR court erred by denying his

petition for PCR without affording him an evidentiary hearing to address his

claim that he did not receive adequate legal representation from trial counsel;

and (2) the court erred by applying Rule 3:22-12(a)(1) as a procedural bar to the

petition.

IV.

As noted, defendant argues that the PCR court erred by denying his

request for an evidentiary hearing on his claim that he was denied the e ffective

assistance of trial counsel. We disagree.

An evidentiary hearing is required on a PCR petition only if the defendant

presents a prima facie case in support of relief, the PCR court determines there

A-0063-18T4 7 are material issues of fact which cannot be resolved based on the existing record,

and the court finds that an evidentiary hearing is required to resolve the claims

presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). A

prima facie case is established when the defendant establishes "a reasonable

likelihood that his or her claim, viewing the facts alleged in the light most

favorable to the defendant, will ultimately succeed on the merits." R. 3:22-

10(b).

To prevail on a claim of ineffective assistance of counsel, a defendant

must satisfy the two-part test established in Strickland v. Washington, 466 U.S.

668, 693 (1984), and later adopted by our Supreme Court in State v. Fritz, 105

N.J. 42, 58 (1987). Under the test, a defendant first "must show that counsel's

performance was deficient." Strickland, 466 U.S. at 693. Defendant must

establish that counsel's performance "fell below an objective standard of

reasonableness" and "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Ibid.

Defendant also must show "that the deficient performance prejudiced the

defense." Ibid. To establish prejudice, the defendant must establish "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of

A-0063-18T4 8 the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome" of the matter.

Id. at 698.

Here, defendant argues he established that he was denied the effective

assistance of counsel because his attorney did not obtain video footage from a

security camera at the deli where the robbery occurred. Defendant contends he

informed his first attorney about the security camera and told him he wanted to

get a copy of the video footage. He asserts that if counsel had presented the

footage to the jury, it would have supported his testimony that he never went

into the deli with the intent to commit any type of robbery.

The PCR court found that the record shows defendant's attorney consulted

with defendant and conducted a reasonable investigation on this possible

defense. The court noted that at oral argument, defendant stated that before he

went to trial, he informed his first attorney about the security camera in the deli.

Defendant said an investigation was conducted and "people in the store" said the

security camera was not working on the day of the robbery.

Moreover, defendant did not submit any affidavit or certification to the

PCR court establishing that the security camera in the deli was, in fact, operating

when the robbery was committed. In addition, at trial, the owner of the deli

A-0063-18T4 9 testified that at the time of the robbery, there was a camera in the store but it

"had broken down." Furthermore, two employees who were present during the

robbery also testified that there was a camera in the deli, but it was not working.

Defendant nevertheless argues the PCR court should have conducted an

evidentiary hearing during which PCR counsel could have asked trial counsel

why he did not obtain the footage from the deli's security camera. Defendant

notes that during the oral argument, he "suggested" trial counsel conducted an

investigation about the security tapes and discovered that "on this one particular

day" the security camera was not recording. Defendant claims the initial inquiry

by his attorney was insufficient.

We are convinced, however, that defendant failed to present the PCR court

with sufficient evidence to establish a prima facie case of ineffective assistance

of counsel with regard to counsel's alleged failure to obtain the security footage.

To establish a prima facie claim of ineffective assistance, a defendant "must do

more than make bald assertions that he was denied the effective assistance of

counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

Here, defendant did not establish that his attorney failed to investigate the

existence of the footage from the deli's security camera. Defendant presented

no competent evidence showing that the security camera was, in fact, working

A-0063-18T4 10 and that it recorded the robbery. Indeed, the evidence presented at trial

established that the camera in the deli was not working at the time. Moreover,

at oral argument, defendant did more than suggest that his attorney had

investigated this possible defense. He conceded that counsel had investigated

possible surveillance footage and was told the camera was not operating when

the robbery was committed.

We therefore conclude the PCR court correctly determined that defendant

was not entitled to an evidentiary hearing on this claim. The record supports the

court's finding that defendant failed to establish a prima facie case of ineffective

assistance of trial counsel.

Defendant further argues that the PCR court erred by finding his petition

was barred under Rule 3:22-12(a)(1). He contends he established excusable

neglect for his failure to file the PCR petition within five years after the date on

which the JOC was entered. He also contends there is a reasonable probability

that if his factual allegations are correct, enforcement of the time-bar would

result in a fundamental injustice.

As we have explained, while the PCR court found defendant's petition was

barred under Rule 3:22-12(a)(1), the court considered defendant's claims and

A-0063-18T4 11 found that he had not established a prima facie case of ineffective assistance of

counsel and that defendant was not entitled to an evidentiary hearing on his

petition. Therefore, we need not address defendant's contention that the court

erred by finding the petition was barred by Rule 3:22-12(a)(1).

Affirmed.

A-0063-18T4 12