STATE OF NEW JERSEY v. KENNETH KNOX

NOT FOR PUBLICATION WITHOUT THE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-2748-16T3



STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KENNETH KNOX,

     Defendant-Appellant.
________________________________________

              Submitted January 23, 2018 – Decided            February 5, 2018

              Before Judges Yannotti and Carroll.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 13-
              05-1007.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Ruth E. Hunter, Designated
              Counsel, on the brief).

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Kayla
              Elizabeth Rowe, Special Deputy Attorney
              General/Acting   Assistant Prosecutor,  of
              counsel and on the brief).

PER CURIAM
     Defendant Kenneth Knox appeals from an order entered by the

Law Division on June 23, 2016, which denied his petition for post-

conviction relief (PCR) without an evidentiary hearing. We affirm.

                                      I.

     Defendant was charged in Essex County Indictment No. 13-05-

1007 with first-degree murder, contrary to 
N.J.S.A. 2C:11-3(a);

second-degree      unlawful   possession   of    a     weapon,   contrary     to


N.J.S.A. 2C:39-5(b), and second-degree possession of a weapon for

an unlawful purpose, contrary to 
N.J.S.A. 2C:39-4(a). On September

9, 2014, defendant pled guilty to count one of the indictment,

which was amended to charge first-degree aggravated manslaughter,

contrary to 
N.J.S.A. 2C:11-4(a)(1).

     The   State    agreed    to   recommend    that    the   court   sentence

defendant to sixteen years of incarceration, with an eighty-five

percent period of parole ineligibility, pursuant to the No Early

Release Act (NERA), 
N.J.S.A. 2C:43-7.2. The State also agreed to

dismiss the remaining charges.

     At the plea hearing, defendant admitted that on May 18, 2012,

he fired a gun in the direction of the victim, Dean Brown, who

died as a result of the gunshot wounds. Defendant stated that he

knew his action of firing the gun was life-threatening, and that

he had acted with extreme indifference to human life.



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     During the plea hearing, defendant stated that he understood

he was waiving all of the rights attendant to a trial, including

the right to cross-examine witnesses and otherwise challenge the

State's evidence against him. He stated that he was not forced or

coerced into pleading guilty. Defendant also said he was satisfied

with his counsel's advice, that he "had enough time to speak to

[counsel] about [his] case," and that counsel "answered every one

of [his] questions."

      The court sentenced defendant in accordance with the plea

agreement. The court imposed a custodial term of sixteen years

with an eighty-five percent period of parole ineligibility, as

prescribed by NERA. Defendant did not appeal from the judgment of

conviction dated October 22, 2014.

                                    II.

     On October 6, 2015, defendant filed a pro se petition for PCR

in the Law Division. The court assigned counsel for defendant, and

PCR counsel filed a brief in support of the petition, arguing that

defendant   had   been   denied   the       effective   assistance   of     trial

counsel.

     PCR counsel argued that defendant's trial attorney failed to

adequately discuss with him the strengths and weaknesses of the

State's case. PCR counsel asserted that there were discrepancies

in and between the statements of the witnesses. PCR counsel also

                                        3                                 A-2748-16T3
asserted that trial counsel had not provided defendant time to

review the State's discovery. He argued that the court should

conduct an evidentiary hearing on the petition.

     In   support      of     the   petition,        defendant     submitted      a

certification in which he stated that he only pled guilty because

of the "great amount of prison time" he was facing if found guilty.

He stated that his attorneys had advised him to plead guilty

because two witnesses had identified him as the shooter. He claimed

his attorneys did not discuss with him the "problems" the State

had with the witnesses' accounts.

     He also stated that his attorneys did not provide him with

his own copy of the State's discovery. He asserted that his

"initial" attorney only let him browse once through the discovery

documents for about forty-five minutes while they viewed the

videotaped   statements       of    two       witnesses   who    had   identified

defendant as the shooter. He claimed his "second" attorney only

let him browse through the discovery one time for about twenty

minutes as they viewed parts of the videotaped witness statements.

     According to defendant, both attorneys repeatedly told him

to accept the State's plea offer because of the witness statements.

He   asserted   that        there   were       problems    with    the   State's

identifications. He stated that one witness said she did not know



                                          4                               A-2748-16T3
him, and the other witness initially said she could not identify

the shooter.

     Defendant asserted that another witness had seen numerous

males coming from the scene after the shooting, and after the

incident, one of the identifying witnesses told her boyfriend,

"Why did you all do this to me. You destroyed my life, you all

messed my life up. Why did you all do this?"

     Defendant also stated that this witness had her boyfriend's

name tattooed three times on her body. He asserted that if he had

known of the State's "proof problems," he would not have pled

guilty and he would have gone to trial.

     On June 23, 2016, after hearing oral argument by counsel, the

PCR judge placed his decision on the record. The judge found that

defendant was arguing that there were discrepancies in witness

statements,    but   he   had   "cherry-picked"   portions   of     those

statements in an attempt to "prove an alternative theory to the

case." The judge also found that defendant failed to show that he

would not have pled guilty if he had been provided more time to

review the State's discovery. The judge concluded that defendant

had not established a prima facie case of ineffective assistance

of counsel and that an evidentiary hearing was not required.

     The judge entered an order dated June 23, 2016, denying PCR.

This appeal followed. On appeal, defendant argues that the PCR

                                   5                              A-2748-16T3
court erred by denying his request for an evidentiary hearing. He

asserts that he presented a prima facie case of ineffective

assistance of counsel, and that the record contains genuine issues

of material fact.

                                     III.

      An evidentiary hearing is required in a PCR matter only when

a   defendant    establishes    a    prima   facie    case   of   ineffective

assistance. State v. Preciose, 
129 N.J. 451, 462-63 (1992). "To

establish a prima facie case, a defendant must demonstrate 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).    "'[B]ald

assertions' are not enough—rather, the defendant 'must allege

facts sufficient to demonstrate counsel's alleged substandard

performance.'" State v. Jones, 
219 N.J. 298, 311-12 (2014) (quoting

State v. Porter, 
216 N.J. 343, 355 (2013)).

      Claims of ineffective assistance of counsel are considered

under the two-part test enunciated in Strickland v. Washington,


466 U.S. 668, 687 (1984), and adopted by our Supreme Court in

State v. Fritz, 
105 N.J. 42, 58 (1987). The Strickland test

requires a defendant to show that the performance of his attorney

was deficient, and counsel's deficient performance prejudiced the

defense. Strickland, 
466 U.S.  at 687.

                                       6                              A-2748-16T3
     To meet the first part of the Strickland test, a defendant

must establish that his attorney "made errors so serious that

counsel   was   not   functioning   as   the   'counsel'   guaranteed   the

defendant by the Sixth Amendment." Ibid. The defendant must rebut

the "strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance." Id. at 689.

     Moreover, to satisfy the second part of the Strickland test,

the defendant must show "that counsel's errors were so serious as

to deprive the defendant of a fair trial, a trial whose result is

reliable." Id. at 687. The defendant must establish 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.

     The Strickland test applies when a defendant seeks to set

aside a guilty plea based on ineffective assistance of counsel.

State v. DiFrisco, 
137 N.J. 434, 456-57 (1994) (citing Hill v.

Lockhart, 
474 U.S. 52, 58 (1985)); see also State v. Nunez-Valdez,


200 N.J. 129, 139 (2009) (citing DiFrisco, 
137 N.J. at 457). To

obtain relief, the defendant must show that counsel's handling of

the matter was not "within the range of competence demanded of

attorneys in criminal cases." DiFrisco, 
137 N.J. at 457 (quoting

Tollett v. Henderson, 
411 U.S. 258, 266 (1973)). The defendant

must also show "that there is a reasonable probability that, but

                                     7                             A-2748-16T3
for counsel's errors, [the defendant] would not have pled guilty

and would have insisted on going to trial." Ibid. (alteration in

original) (quoting Hill, 
474 U.S. at 59).

      Here, defendant argues that he was denied the effective

assistance of counsel because his attorney failed to discuss with

him the alleged strengths and weaknesses of the State's case,

specifically discrepancies in the statements of three persons the

State     interviewed.    The    PCR   judge   found    that    defendant       had

essentially "cherry-picked" comments from the witness statements

in   an   effort   to    prove   an    alternative     theory   of   the     case,

specifically that a person known as "Pauly" may have been the

shooter.

      The record shows that K.C.1 and her sister resided in an

apartment on the third floor of a multi-family dwelling on North

18th Street in East Orange. They also gave statements to detectives

from the Essex County Prosecutor's Office.

      K.C. told the detectives she had been with Brown on the porch,

but she went inside to help her sister. She heard a gunshot and

saw defendant running away with a gun in his hand. He was wearing

red sweatpants. She said another man was on the porch at the time,

but she did not know his name or whether he was involved. She was


1
  We use initials to identify certain persons to protect their
identities.

                                        8                                  A-2748-16T3
sure he was not the shooter. Without qualification, K.C. identified

defendant in a photo array as the shooter.

     K.C.'s sister told the detectives that she had gotten into

an argument with a person called "Kenny" or "Merce" because he

wanted to get into her house. She described "Kenny" or "Merce" as

a sixteen-year old with brown skin, who was wearing red sweatpants

and a hat over his Afro-style haircut. She told him to leave.

Then, she heard a shot, turned around, and saw the person with a

gun running to the side of the house. She identified defendant as

the shooter in a photo array.

     T.M. also gave a statement to the detectives. She said she

had been inside her apartment on the second floor of the building

on North 18th Street when she heard a pop. She ran out onto the

balcony and saw neighbors running outside. K.C. ran downstairs.

She was talking on the phone. According to T.M., K.C. said "why

did you do all that? Why you all do that? You all didn't have to

do that," and that "they damaged her life." T.M. thought K.C. was

talking to "Pauly," who T.M. believed was K.C.'s husband, but K.C.

told the detectives "Pauly" was not at the house at the time of

the shooting.

     Defendant argues there were several material discrepancies

in the statements. Defendant asserts K.C.'s comments to the person

on the phone indicated that she was accusing someone other than

                                9                           A-2748-16T3
defendant of shooting Brown, and that it is reasonable to infer

that   "Pauly"     was   that   person.   He    asserts   that   the   witness

statements indicate another person was present and could have been

the shooter. Defendant also asserts that K.C.'s sister was not

credible because she did not know all the details of his juvenile

history.

       The   PCR   judge   found   that   the    record   does   not   support

defendant's attempt to create an alternative theory that someone

other than defendant shot Brown. The judge noted that defendant

had "cherry-picked" certain comments in the witness statements to

support that theory, but the record shows that the State had strong

evidence that defendant was the shooter. While there may have been

some discrepancies in the statements, they were not material.

       Defendant has not shown that defense counsel was in any way

deficient in analyzing the strengths and weaknesses of the State's

case. Furthermore, defendant failed to show that any discrepancies

in the statements supported possible third-party culpability,

which might have justified counsel advising defendant to reject

what was clearly a favorable plea offer.

       In addition, defendant claims his attorneys did not give him

sufficient time to review the State's discovery. The record shows,

however, that defendant had been given the State's discovery,

which included the witness statements. His attorneys gave him an

                                     10                                A-2748-16T3
opportunity to read the discovery materials. Defendant claims that

if he had been given more time to review the statements, he would

have rejected the State's plea offer and gone to trial, but the

record does not support that assertion. As we have explained, even

if defendant had taken more time to review the discovery, he would

not have found any material discrepancies that would have justified

rejection of the State's favorable plea offer. Moreover, when he

entered his plea, defendant told the court he was satisfied with

the services his counsel had provided, and he had sufficient time

to discuss the case with counsel.

     We therefore conclude that the PCR judge correctly found that

defendant had not established a prima facie case of ineffective

assistance   of   counsel.   The   judge   correctly   determined   that

defendant's claims could be resolved based on the existing record,

and an evidentiary hearing was not required.

     Affirmed.




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