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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1393-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN FIELDS, a/k/a JERMAINE BATEMAN, KEVIN CLARKE, KEVIN BUTLER, KEVIN FEILDS, and KEVIN TAYLOR
Defendant-Appellant. ________________________
Submitted October 4, 2021 – Decided October 29, 2021
Before Judges Rose and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 17-03-0776, 17-07-1853 and 17-08-2087.
Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).
Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Kevin Fields appeals from a September 30, 2019 order denying
his petition for post-conviction relief (PCR) based on his claim of ineffective
assistance of counsel. We affirm.
Between March and August of 2017, defendant was charged with nine
offenses under three separate indictments. First, he was indicted in March 2017
for: second-degree aggravated assault, N.J.S.A. 2C:12-1(b); second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), following
a shooting in a Newark apartment. Next, due to his involvement in a shooting
inside a Newark liquor store, he was indicted in July 2017 for: second -degree
burglary, N.J.S.A. 2C:18-2; two counts of second-degree aggravated assault,
N.J.S.A. 2C:12-1(b); second-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a). Finally, he was indicted in August 2017 for third-degree
terroristic threats, N.J.S.A. 2C:12-3(b), after threatening his girlfriend with
bodily harm.
A-1393-19 2 In November 2017, defendant's court-appointed counsel and the Essex
County assistant prosecutor met for a status conference. The judge adjourned
the conference so defense counsel could review a surveillance video of the May
2017 liquor store incident. The prosecutor provided defense counsel with the
video "sometime in the fall of 2017," but initially, defense counsel was unable
to view it due to technical issues. He eventually watched the video in February
2018 and noted the footage did not support defendant's claim that he acted in
self-defense during the liquor store incident.
Defense counsel and the prosecutor met for a plea conference on February
13, 2018. At that time, defendant had begun serving an eighteen-month sentence
for an unrelated matter. Defense counsel rejected the State's initial eight-year
prison term offer, and negotiated a favorable plea agreement whereby defendant
agreed to plead guilty to two counts of second-degree aggravated assault and
two counts of second-degree possession of a handgun under separate
indictments. He also agreed to plead guilty to the third-degree terroristic threats
charge under the third indictment. In exchange for defendant's guilty pleas, the
State recommended that he serve: five-year prison terms for both counts of
second-degree aggravated assault, subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2; five-year terms for both counts of second-degree unlawful
A-1393-19 3 possession of a weapon, subject to the Graves Act, N.J.S.A. 2C:43-6(c); and a
three-year term for the terroristic threats offense. Additionally, the State
recommended that all sentences would run concurrently with each other and
with the sentence defendant was currently serving so defendant's aggregate
sentence would not exceed five years, and it recommended dismissal of the
remaining charges.
At sentencing on March 26, 2018, defense counsel requested a downward
departure on the second-degree charges so defendant would be sentenced in the
third-degree range, pursuant to N.J.S.A. 2C:44-1(b). Counsel primarily relied
on mitigating factor nine, N.J.S.A. 2C:44-1(b)(9) (the character and attitude of
the defendant indicate that he is unlikely to commit another offense). The State
objected to the downward departure and argued in favor of aggravating factors
three (risk of reoffending), six (criminal history), and nine (deterrence), N.J.S.A.
2C:44-1(a)(3), (6), and (9).
The judge found aggravating factors three, six, and nine applied, and that
defendant's guilty pleas in this matter resulted in his seventeenth, eighteenth and
nineteenth indictable convictions. She also found mitigating factor nine, but
concluded it was outweighed by the aggravating factors. Accordingly, she
A-1393-19 4 denied defendant's request for a downward departure and sentenced defendant
consistent with the plea agreement.
In December 2018, defendant filed a PCR petition, claiming his plea
counsel was ineffective by failing to "properly articulate [an] aggravating and
mitigating factor analysis" in favor of a downward departure at sentencing. PCR
counsel also argued that the delay in resolving defendant's indictments "violated
his right to a speedy trial." The same judge who sentenced defendant conducted
argument on defendant's application on September 23, 2019. She stated she had
"an independent recollection of the chronology of this matter and of the
negotiated plea agreement that yielded the defendant's sentence." Additionally,
the judge found "the sentence received by [defendant] was required by statute.
The two statutes that were implicated in the sentencing scheme were [NERA]
and the Graves Act." Further, the judge rejected defendant's speedy trial
argument, finding that although the delay
occasioned between the . . . defendant's arrest and . . . ultimate disposition is lengthy, . . . at no time did [defendant] protest the delay, did encourage the delay[,] and the ultimate resolution is a resolution that contemplated three indictments that may not have been available at an earlier period of time.
On each matter . . . [defendant] was presented before the court. [Defendant] neither orally nor in any
A-1393-19 5 independent writing ever decried the length of time occasioned by the delay.
The court notes that [defendant] is not a novice . . . in the criminal justice system and the court would find, one[,] he was represented by counsel[;] two[,] he was quite aware that ‒ in this instance . . . justice delayed may in effect yield a better outcome.
Accordingly, the judge denied defendant's PCR petition without an evidentiary
hearing.
On appeal, defendant raises the following arguments:
POINT I
COUNSEL FOR DEFENDANT WAS INEFFECTIVE AS HE FAILED TO WATCH THE VIDEO CAUSING A DENIAL OF DEFENDANT'S RIGHT TO A SPEEDY TRIAL AND BY FAILING TO WEIGH THE AGGRAVATING AND MITIGATING FACTORS AT SENTENCING, FAILED TO HAVE THE COURT SENTENCE DEFENDANT TO AN OFFENSE ONE DEGREE LOWER THAN THAT FOR WHICH HE WAS SENTENCED. THIS DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL. (Partially raised below).
A. Ineffective Assistance of Counsel.
B. Counsel Was Ineffective For Failing To Move This Case In A Quicker Fashion And, As Such, Violated Defendant's Right To A Speedy Trial.
C. Counsel Was Ineffective For Failing To Structure An Argument In Support Of Sentencing Defendant To Third-Degree Offenses For The Assaults.
A-1393-19 6 We are not convinced.
Generally, we will not disturb a PCR court's factual findings if they are
"supported by adequate, substantial and credible evidence." State v. Harris, 181
N.J. 391, 415 (2004) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J.
502, 549 (2002)). However, when a PCR petition is denied without an
evidentiary hearing, as was the case here, we "may review the factual inferences
the [PCR] court has drawn from the documentary record de novo." State v.
Blake, 444 N.J. Super. 285, 294 (App. Div. 2016). We also review a PCR court's
legal conclusions de novo. Ibid.
Criminal defendants are guaranteed the right to effective legal assistance
from counsel. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. A claim for
ineffective assistance of counsel must satisfy the two-part test pronounced in
Strickland v. Washington, 466 U.S. 668, 684-87 (1984); see also State v. Fritz,
105 N.J. 42, 49-53 (1987). First, the defendant must show that counsel's
performance was deficient (the deficiency prong). State v. Gideon, 244 N.J.
538, 550 (2021). Second, the defendant must prove that he or she suffered
prejudice as a result of counsel's deficient performance (the prejudice prong).
Ibid. The burden of proving both prong falls "squarely on the defendant." State
v. Paige, 256 N.J. Super. 362 (App. Div. 1992).
A-1393-19 7 The deficiency prong requires a showing that counsel "made errors so
serious that [he or she] was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. To be deemed
deficient, counsel's representation must fall below the standard of
"reasonableness under prevailing professional norms." Id. at 688. We must
"indulge a strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance[,]" and "[j]udicial scrutiny of counsel's
performance must be highly deferential." Id. at 689. Counsel's performance is
not deficient "[m]erely because a trial strategy fails[,]" State v. Bey, 161 N.J.
233, 251 (1999), or because he or she failed "to raise unsuccessful legal
arguments[,]" State v. Worlock, 117 N.J. 596, 625 (1990).
Even if counsel's performance was deficient, a defendant must also prove
prejudice resulted from the deficiency. The prejudice prong has been described
as the "far more difficult" hurdle to overcome, State v. Preciose, 129 N.J. 451,
463 (1992), an "'exacting standard[,]'" Gideon, 244 N.J. at 561 (quoting State v.
Allegro, 132 N.J. 352, 267 (2008)), and where "most PCR petitions . . . are likely
to fail," State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011). To prove
prejudice, a defendant must show "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
A-1393-19 8 different." Strickland, 466 U.S. at 687. Because of the uncertainty associated
with trial, "it is often quite difficult for petitioners who have acknowledged their
guilt to satisfy Strickland's prejudice prong." Padilla v. Kentucky, 559 U.S. 356,
371 n. 12 (2010). Therefore, where a defendant seeks to set aside a conviction
based on a guilty plea, he or she must also "'convince the court that a decision
to reject the plea bargain'" and proceed to trial "'would have been rational under
the circumstances.'" Maldon, 422 N.J. Super. at 486 (quoting Padilla, 559 U.S.
at 372); see also State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009). Such a
determination must be "based on evidence, not speculation." Ibid.
Here, defendant argues plea counsel was ineffective because when he
presented an aggravating and mitigating factor analysis at sentencing, counsel
failed to emphasize that a downward departure was appropriate under the
"interest of justice" prong of N.J.S.A. 2C:44-1(f)(2). We disagree.
N.J.S.A. 2C:44-1(f)(2) provides that a court may sentence a defendant
who has been convicted of a first- or second-degree crime to a term appropriate
to an offense one degree lower if: (1) it is "clearly convinced that the mitigating
factors substantially outweigh the aggravating factors"; and (2) "the interest of
justice [so] demands." A defendant must satisfy both statutory prongs to justify
a downward departure. State v. Megargel, 143 N.J. 484, 496 (1996).
A-1393-19 9 "'[A] criminal sentence is always and solely committed to the discretion
of the trial court to be exercised within the standards prescribed by the Code of
Criminal Justice.'" State v. Hess, 207 N.J. 123, 151 (2011) (quoting State v.
Warren, 115 N.J. 433, 447 (1989)). Plea counsel has a duty to present relevant
mitigating factors and supporting evidence at sentencing. See id. at 154.
However, it is the "trial courts' independent responsibility to identify and weigh
the aggravating and mitigating factors in fixing a just sentence." Id. at 151.
"[T]he standard governing the downgrading of a defendant's sentence . . .
is high." Megargel, 143 N.J. at 500. Further, it is "paramount that the sentence
reflect the Legislature's intention that the severity of the crime now be the most
single important factor in the sentencing process." Ibid. (citing State v. Hodge,
95 N.J. 376, 379 (1984)). The basis for this principle is the need to "assure the
protection of the public and the deterrence of others. The higher the degree of
the crime, the greater the public need for protection and the more need for
deterrence." Ibid.
"Although the degree of the crime is the focus of the sentence, facts
personal to the defendant may be considered in the sentencing process," such as
"a defendant's role in the incident." Id. at 501. The judge also must assess
A-1393-19 10 "whether there is a compelling reason to downgrade defendant's sentence in the
interest of justice" separate from any mitigating factors. Id. at 501-02.
Governed by these standards, we are satisfied plea counsel was not
ineffective, despite that he was unable to obtain a downward departure. In fact ,
it is well settled that the mere fact defense counsel's strategy is unsuccessful is
not sufficient to support a Strickland claim. See Bey, 161 N.J. at 251.
Here, the record reflects that plea counsel made substantive arguments at
sentencing for a downward departure based on mitigating factor nine. He
encouraged the judge to "take a broader view of [defendant]" and see that "there
is a capacity for him to both change and move forward with his life." Counsel
further argued that defendant: is charitable in his community "by supporting
church groups as well as toys for children and helping the homeless"; (2) "has
taken responsibility for each of the allegations that he plead to"; (3) is a high
school graduate; (4) was a "pleasure to deal with in many ways because of his
maturity as well as his attitude"; and (5) "was the victim of a crime himself,
having been shot in the leg approximately two and a half years prior at the same
location as one of the incidents."
Defense counsel also arranged for defendant's girlfriend (the victim of
defendant's terroristic threats) to testify at sentencing. She stated defendant had
A-1393-19 11 performed charitable acts in support of the community, including hosting back -
to-school events and providing food for the homeless. She also testified that
although defendant had made mistakes, the judge should "take into
consideration that he is a good person" with a "very good heart." When
questioned about the offense which led to her victimization, defendant's
girlfriend stated she intended for the grand jury to dismiss the indictment for
terroristic threats because "it was just a miscommunication" and "nothing
happened." Defense counsel also provided the judge with "many letters" from
defendant's family, friends, and members of the community in support of his
request for a downward departure. Under these circumstances, we cannot
conclude plea counsel's performance fell short of the prevailing professional
norms, as required by Strickland. 466 U.S. at 688.
Even if defendant could establish that plea counsel's performance was
deficient, he fails to satisfy the prejudice prong of Strickland. As the prosecutor
noted at sentencing, defendant's most recent convictions "represent[ed] his
[seventeenth, eighteenth] and [nineteenth] indictable convictions." Thus, the
prosecutor argued aggravating factors three, six, and nine weighed against a
downward departure. Further, the prosecutor emphasized that several of
defendant's prior convictions involved "violent offenses like aggravated assault,
A-1393-19 12 unlawful possession of a handgun by a certain persons not to possess a handgun,
conspiracy, [and] resisting arrest." The prosecutor also described defendant's
plea bargain as a "sweetheart deal" and stated defendant "got three for the price
of one" because of the concurrent sentencing contemplated under the plea deal.
The judge agreed with the State's position at sentencing, finding "the
aggravating factors outweigh[ed] the mitigating factors" and there was "no basis
for downward departure from the sentence recommended." She noted
defendant's criminal history, "does stretch back quite some time" to 1990 and
that his convictions included "weapons offenses." Accordingly, we are satisfied
defendant has not demonstrated there is a reasonable probability that if plea
counsel employed a different strategy, the outcome of sentencing would have
been different. See Strickland, 466 U.S. at 687.
We also are not convinced defendant's speedy trial argument, as it relates
to plea counsel's performance, should trigger appellate relief. As a preliminary
matter, for the first time on appeal, defendant contends counsel was ineffective
for failing to promptly review the surveillance video of the liquor store incident.
We generally refuse to consider issues not presented to the trial court, State v.
Alexander, 233 N.J. 132, 148 (2018), but we address defendant's claim here for
purposes of complete review.
A-1393-19 13 Criminal defendants have a right to a speedy trial. U.S. Const. amend. VI
(incorporated against the states by U.S. Const. amend. XIV). The trial court
balances four factors to determine if that right has been violated, namely: (1)
length of the delay; (2) reason for the delay; (3) whether defendant asserted his
right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo, 407
U.S. 514, 530-31 (1972). "[N]one of the four factors . . . [is] either a necessary
or sufficient condition to . . . finding . . . a deprivation of the right of speedy
trial." Id. at 533. As such, we have "decline[d] to adopt a rigid bright-line try-
or-dismiss rule" because the "facts of an individual case are the best indicators
of whether a right to a speedy trial has been violated." State v. Cahill, 213 N.J.
253, 270-71 (2013).
Regarding the first Barker factor, whether the delay was reasonable often
depends on the nature of the charges. See Barker, 407 U.S. at 531 (noting, "the
delay that can be tolerated for an ordinary street crime is considerably less than
for a serious, complex conspiracy charge"). A delay of more than one year will
presumptively trigger an analysis of all four Barker factors. Cahill, 213 N.J. at
266. A court will also consider "the amount of time customarily required to
dispose of similar charges," and the defendant has the burden of establishing
such customs. Id. at 265 (citing Doggett v. United States, 505 U.S. 647, 651-52
A-1393-19 14 (1992)). Still, courts refuse to decide "[h]ow long is too long . . . 'by sole
reference to the lapse of a specified amount of time.'" State v. Detrick, 192 N.J.
Super. 424, 426 (App. Div. 1983) (quoting State v. Smith, 131 N.J. Super. 354,
360 (App. Div. 1974)).
As to the first Barker factor, defendant argues that by the time he entered
his guilty pleas, he had been detained in the county jail for 177 days. He
contends this was an unreasonable length of time to resolve his cases and
violative of his right to a speedy trial. We do not agree.
It is not uncommon for courts to tolerate a delay of more than one year
before a case is tried. See State v. Gaikwad, 349 N.J. Super. 62, 88 (App. Div.
2002) (seventeen-month delay in bringing a defendant to trial for computer theft
charges). It bears emphasis that longer delays may "be tolerated for serious
offenses or complex prosecutions." Cahill, 213 N.J. at 266. Of course,
purposeful delay tactics weigh heavily against the State. Barker, 407 U.S. at
531. Here, defendant faced nine charges under three indictments, which charges
included aggravated assault and weapons offenses, and involved different
victims. He was first indicted in March 2017, and resolution of his charges
occurred less than a year later, in February 2018, when he entered his guilty
pleas. Thus, the first Barker factor weighs against defendant.
A-1393-19 15 Regarding the second Barker factor, the court must consider the reasons
for the delay. Cahill, 213 N.J. at 266. Here, it is uncontroverted that after
defendant was indicted in March 2017, he was rearrested and indicted on two
additional cases. Moreover, as defendant admits, technical difficulties delayed
plea counsel's viewing of the surveillance video of the liquor store incident. But
plea counsel subsequently arranged with the State to watch the video, and he
engaged in negotiations with the State to globally resolve defendant's multiple
charges. Notably, while defendant awaited resolution of the instant offenses, he
also was serving an existing sentence. Thus, we are not satisfied the second
Barker factor weighs in defendant's favor.
Turning to the third Barker factor, a defendant is not required to assert the
right to a speedy trial during pre-trial proceedings. Cahill, 213 N.J. at 266.
However, a defendant's prior claim of unreasonable delay will be given "strong
evidentiary weight." Barker, 407 U.S. at 531-32. Conversely, the "failure to
assert the right will make it difficult for a defendant to prove that he was denied
a speedy trial," since a defendant is more likely to complain if there is a serious
deprivation of his or her rights. Ibid.
Here, as the PCR judge noted, defendant "neither orally nor in any
independent writing ever decried the length of time occasioned by the delay" in
A-1393-19 16 resolving his case. She also found defendant was "quite aware . . . that justice
delayed may[,] in effect[,] yield a better outcome." Thus, the third Barker factor
also weighs against defendant.
Finally, regarding the fourth Barker factor, courts have identified three
types of prejudice to consider, namely: "oppressive pretrial incarceration,
anxiety and concern of the accused[,] and impairment of the defense." State v.
Szima, 70 N.J. 196, 201 (1976). Here, we cannot conclude any delay in this
matter caused defendant to suffer prejudice, particularly given the PCR judge's
finding that "the ultimate resolution is a resolution that contemplated thr ee
indictments that may not have been available at an earlier period of time." Also,
defendant fails to show he suffered "oppressive pretrial incarceration" because
he was already incarcerated for an unrelated crime during plea negotiations.
Further, while defendant may have suffered from anxiety and concern while
awaiting trial on three indictments, his extensive criminal history, as well as his
incarceration on an unrelated matter made him less vulnerable to such prejudice.
Finally, defendant fails to show that any delay in resolving defendant's
three indictments impaired his defense. For example, defendant has advanced
no evidence to demonstrate plea counsel's delay in viewing the surveillance
video impaired his defense, because the video only related to one of defendant's
A-1393-19 17 three indictments, and admittedly, it "did not support a [theory of self -]defense"
for charges arising from the liquor store incident. Also, once plea counsel
watched the video and was satisfied it did not establish a self-defense theory, he
was able to negotiate a global plea offer which contemplated concurrent
sentences on five charges, with those sentences to run concurrent to defendant's
existing sentence. Accordingly, none of the Barker factors support defendant's
speedy trial argument.
In sum, defendant has not demonstrated a violation of his speedy trial
rights under the test in Barker, and has failed to establish ineffective assistance
of counsel under Strickland.
To the extent we have not addressed defendant's remaining arguments, we
are satisfied they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed.
A-1393-19 18