Thisopinion 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 STATE OF NEW JERSEY v. K

NOT FOR PUBLICATION WITHOUT THE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.

KEVIN BAXTER,

Defendant-Appellant.

January 5, 2017

Submitted December 7, 2016 Decided

Before Judges Carroll and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 06-11-0932 and 07-04-0231.

Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief).

Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (Lauren Martinez,Special DeputyAttorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kevin Baxter appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Following a May 2008 jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1a(2), and first-degree carjacking, N.J.S.A. 2C:15-2a(1). On July 18, 2008, the court sentenced defendant to two concurrent fifteen-year terms of imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also sentenced defendant on an unrelated fourth-degree conviction for aggravated assault, N.J.S.A. 2C:12-1b(5)(h), to a concurrent eighteen-month prison term.

Defendant appealed and, in an unpublished opinion, we affirmed his convictions but remanded for the court to impose the mandatory five-year period of parole supervision on defendant's first degree convictions. State v. Baxter, No. A-2568-08 (App. Div. August 3, 2011). The Supreme Court denied certification. 209 N.J. 97 (2012).

The facts underlying defendant's convictions are set forth in our earlier opinion and need not be repeated in the same level of detail here. Briefly summarizing, on May 23, 2006, defendant's efforts to rob a North Plainfield bank failed when a teller refused to give him any money despite his threat to shoot her with a gun he claimed to possess. Defendant then fled the bank and forced his way into a nearby vehicle. Defendant pulled a front passenger from her seat and threatened the driver, again stating he had a gun. The driver managed to escape, taking the keys to the vehicle in the process. Defendant was subsequently apprehended by police in a nearby building. After twice waiving his Miranda1 rights, defendant confessed to the robbery and carjacking charges.

Pertinent to the present appeal, we noted in our earlier opinion

During processing at police headquarters, defendant provided the police with his medical and mental health history that included taking medication, using drugs, attempting suicide, and having been recently hospitalized with a bipolar disorder and depression, and his release from the hospital the day prior to the incident.

. . . .

At trial, defendant raised the defenses of insanity and diminished capacity. According to defendant's expert[,] at "the time of the incident in question [defendant] was suffering from a bipolar disorder aggravated by the stressors and aggravated with the use of the cocaine, with a mood disorder [and] the disturbance of thinking." The defense expert opined that "[t]he difficulties of impulse control and all this led to the greatly diminished capacity to appreciate what he was doing and control his impulses." The State's expert diagnosed defendant with substance abuse and malingering, not bipolar disorder. The State's expert found that defendant's statements, actions, and mental state were consistent with substance abuse, rather than bipolar disorder, insanity or diminished capacity.

[Baxter, supra, slip op. at 3-6.]

In June 2013, defendant filed a PCR petition in which he asserted he was denied the effective assistance of trial counsel because counsel "failed to argue[] important issues as to [his] mental health." PCR counsel was appointed and submitted a brief supplementing defendant's ineffective assistance argument. In this brief, defendant argued that trial counsel failed to provide the discharge summary from defendant's most recent hospitalization to the defense psychiatric expert, and was inexperienced in qualifying the expert witness at trial. Defendant contended that these deficiencies violated "the internal protocol of the Office of the Public Defender in assigning staff and pool counsel to clients based on the level of experience of counsel in relation to the criminal charges of a defendant." Defendant further contended that he rejected a generous plea offer based on the assurance he had been assigned an experienced trial attorney.

Judge Paul W. Armstrong, who was not the trial judge, denied defendant's petition by order dated June 12, 2014. The judge issued a comprehensive eleven-page written decision on the same date setting forth his findings and reasons for denying defendant any relief. Having canvassed the record, Judge Armstrong determined

[D]efense counsel properly and professionally guided the expert. There were simply limited facts supporting the psychiatric claim, and any perceived deficiency would not have changed the outcome of the case.

In regards to Petitioner's claim of a violation of Public [D]efender protocol as a basis for [PCR], it is this [c]ourt's opinion that it is without merit, as [] defendant has offered no evidence of guidelines or procedures to prove that counsel was not properly assigned to the matter.

Finally, Petitioner's claim that he rejected a generous plea offer in reliance [on] [c]ounsel's successful presentation of his diminished capacity defense is also without merit, as it is this [c]ourt's opinion that [c]ounsel's presentation was without deficiency. Additionally, [c]ounsel was able to convince the State to reduce its plea offer from an aggregate sixteen[-]year State Prison sentence to [a] twelve[-]year State Prison sentence, and Petitioner instead pursued the psychiatric defense.

Judge Armstrong concluded that because defendant did not establish a prima facie showing of ineffective assistance of counsel, no evidentiary hearing was required. This appeal followed, in which defendant presents the following issues for our consideration

POINT I THE [TRIAL] COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

POINT II THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR [PCR] MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH THIS APPLICATION (NOT RAISED BELOW).2

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, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42, 58 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that 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, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine whether he or she has established a prima facie claim. State v. Preciose, 129 N.J. 451, 462-63 (1992). It follows that a "defendant must allege specific facts and evidence supporting his allegations," State v. Porter, 216 N.J. 343, 355 (2013), and "must do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." State v. Jones, 219 N.J. 298, 312 (2014).

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffective assistance of trial counsel within the Strickland-Fritz test, substantially for the reasons stated by Judge Armstrong in his thorough written opinion. Accordingly, the judge correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63. Defendant's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Following a pretrial hearing, the court ruled that defendant's post-arrest statements to the police were admissible.

2 We choose to withhold our review of claims about PCR counsel because they were not previously raised in defendant's PCR petition, not argued before the PCR court, and do not involve jurisdictional or public interest concerns. State v. Robinson, 200 N.J. 1, 20 (2009); State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Claims based on PCR counsel's performance are generally reserved for "second or subsequent" PCR petitions. R. 3:22-4(b)(2)(C).