STATE OF NEW JERSEY v. KAWAN BOLT

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KAWAN BOLT,

Defendant-Appellant.

________________________________________________

November 17, 2016

Submitted October 11, 2016 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-03-0367.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen Ann Lodeserto, Designated Counsel, on the brief).

Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Jennifer M. Eugene,Special DeputyAttorney General/ActingAssistant Prosecutor,of counsel and on the brief).

PER CURIAM

Defendant Kawan Bolt appeals from an order entered by the Law Division on September 24, 2014, which denied his petition for post-conviction relief (PCR). We reverse and remand for further proceedings.

A Mercer County grand jury returned Indictment No. 06-03-0367, charging defendant and Victor Baylor with first-degree robbery in violation of N.J.S.A. 2C:15-1; 2C:2-6 (count one); third-degree attempt to commit theft by unlawful taking in violation of N.J.S.A. 2C:20-3a; 2C:5-1; 2C:2-6 (count two); fourth-degree aggravated assault in violation of N.J.S.A. 2C:12-1b(4); 2C:2-6 (count three); and second-degree possession of a firearm for an unlawful purpose in violation of N.J.S.A. 2C:39-4a; 2C:2-6 (count four).

Thereafter, defendant and Baylor were tried jointly before a jury. At the trial, evidence was presented which indicated that on October 24, 2005, two masked men entered a deli 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 owner and the 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 money.

The incident was reported to the Trenton police, who reached out to 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" in the city. The police brought one of the deli's employees to the hospital, and he identified defendant as one of the two perpetrators of the robbery.

The detective also learned that defendant had signed into the hospital under a false name. The detective informed defendant of his Miranda rights.1 He asked defendant how he came to be injured. Defendant 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 that he had lied about being the victim of a robbery. He told the detective that he had walked into the deli while it was being robbed, and 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, using a photo array at the police station.

The jury found the defendant guilty of committing the aforementioned offenses.2 The trial court merged counts two, three, and four with count one, in which defendant was charged with first-degree armed robbery. The court sentenced defendant to twelve years of incarceration, with a 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.

Defendant appealed from the judgment of conviction 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).

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 pro se PCR petition in the trial court. The court appointed counsel for defendant, and counsel filed a brief arguing that: (1) defendant is entitled to oral argument and an evidentiary hearing on the petition; (2) the request for relief is not time-barred; (3) defendant is entitled to relief because he was denied the effective assistance of trial and appellate counsel; (4) the court should consider the "totality" of the errors; and (5) defendant's claims are not barred by Rule 3:22-2. The State filed a brief opposing the petition.

The court initially scheduled the matter for oral argument on February 7, 2014; however, the court adjourned the matter to March 7, 2014. Oral argument was rescheduled for May 2, 2014. Defendant's PCR counsel did not appear that day, and requested that the court make its decision based on the briefs that had been filed. Later in the day, PCR counsel "rescinded his request," and the court rescheduled oral argument on July 18, 2014. Defendant's PCR counsel failed to appear, and the court rescheduled the matter for September 19, 2014. Defendant's attorney did not appear, and the assistant prosecutor rested on her brief. According to defendant, on September 22, 2014, his PCR counsel was found dead, but it is "unclear when he died."

On September 24, 2014, the PCR court filed a letter opinion in which it found that defendant's petition was barred by Rule 3:22-12(a)(1) because it had not been filed within five years after the date of the judgment of conviction, and defendant had not shown excusable neglect for the late filing of the petition. The court nevertheless addressed the merits of the petition and concluded that defendant had not been denied the effective assistance of trial counsel.

The PCR court rejected defendant's claim that his attorney erred by failing to: (1) consult with him, review evidence, and prepare potential defenses; (2) properly argue for dismissal of the indictment for accomplice liability; (3) object to the trial court's questioning of defendant at trial; (4) object to instances of prosecutorial misconduct; (5) object to the trial court's jury instruction on the definition of a firearm; and (6) argue relevant mitigating factors at sentencing.

The PCR court also rejected defendant's claim that he was entitled to relief due to the cumulative effect of the alleged errors, and the claim that defendant had been denied the effective assistance of appellate counsel. The PCR court determined that defendant was not entitled to an evidentiary hearing on his petition. The court entered an order dated September 24, 2014, denying PCR. This appeal followed. Defendant thereafter filed a motion for summary reversal of the September 24, 2014 order. We denied the motion.

On appeal, defendant argues that PCR counsel rendered ineffective assistance of counsel on the PCR petition. He asserts that PCR counsel's handling of the matter was deficient because he failed to submit a certification establishing that the six-month delay in filing the petition was excusable, and providing factual support for the claim that defendant had been denied the effective assistance of trial counsel.

Defendant argues that the matter should be remanded to the trial court for the assignment of new PCR counsel, so that his arguments may be advanced "properly." The State does not object to a remand so that new PCR counsel could be afforded an opportunity for oral argument. The State argues, however, that defendant's initial PCR counsel briefed the issues adequately, and defendant should not be allowed to submit a new PCR application.

We are convinced that the order denying PCR should be reversed and the matter remanded to the trial court for further proceedings. We recognize that the PCR court had scheduled the matter for oral argument on several dates, and PCR counsel failed to appear on September 19, 2014, even though he had requested the opportunity for oral argument. As noted previously, according to defendant, PCR counsel was found dead several days later. It is unclear, however, whether there is any connection between counsel's death and his failure to appear.

In any event, we are convinced that at the very least, the PCR court should appoint new counsel to represent defendant on his petition, and counsel should be afforded an opportunity for oral argument on the claims that defendant raised in his petition. See State v. Parker, 212 N.J. 269, 283 (2012) (noting that there is a "strong presumption in favor of oral argument" on a defendant's first PCR petition).

As noted previously, defendant argues that his PCR counsel did not present the trial court with a certification to establish excusable neglect for the late filing of the PCR petition, and to provide factual support for the ineffective-assistance-of-counsel claims. On remand, new PCR counsel may seek leave to file a certification or certifications in support of the petition. Furthermore, if warranted, the PCR court should reconsider its determination that an evidentiary hearing is not required. See State v. Porter, 216 N.J. 343, 355 (2013) (noting that under Rule 3:22-10(b), a defendant is entitled to an evidentiary hearing on a PCR petition if defendant establishes a prima facie case for relief, there are material issues of disputed fact that cannot be resolved by the existing record, and the court determines that a hearing is required to resolve the claims presented).

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Baylor was convicted of the same charges. See State v. Baylor, No. A-3891-07 (App. Div. Aug. 24, 2010).