STATE OF NEW JERSEY v. SHAWN LOYAL,

NOT FOR PUBLICATION WITHOUT THE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-4694-16T4


STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

SHAWN LOYAL, a/k/a
TASHAWN BENNET, TESHAWN
BENNET, TASHAWN BENNETT,
TAHIR HOSKING, OMAR
LAKEWOOLKE, ALEQUAN
LOYAL, ALQUIRE LOYAL,
ALQUVRE LOYAL, FAREEM
SMITH, JAMES SMITH,
TASHAWN R. SMITH, and
TASHAWN WALLACE,

     Defendant-Appellant.
_______________________________

                   Submitted September 26, 2018 - Decided October 12, 2018

                   Before Judges Fuentes and Accurso.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 10-05-0493.
            Joseph E. Krakora, Public Defender, attorney for
            appellant (Andrew R. Burroughs, Designated Counsel,
            on the brief).

            Michael A. Monahan, Acting Union County
            Prosecutor, attorney for respondent (Izabella M.
            Wozniak, Special Deputy Attorney General/Acting
            Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant Shawn Loyal appeals from the denial of his petition for post-

conviction relief (PCR), contending he established a prima facie case of

ineffective assistance of counsel requiring an evidentiary hearing. Because the

trial judge correctly determined the evidence insufficient to sustain defendant's

burden, we affirm.

      A jury convicted defendant of second-degree eluding,  N.J.S.A. 2C:29-

2(b); two counts of second-degree aggravated assault causing bodily injury

during the course of eluding,  N.J.S.A. 2C:12-1(b)(6); second-degree aggravated

assault causing serious bodily injury,  N.J.S.A. 2C:12-1(b)(1); fourth-degree

assault by auto causing serious bodily injury,  N.J.S.A. 2C:12-1(c)(1); third-

degree receiving stolen property,  N.J.S.A. 2C:20-7; third-degree aggravated

assault of a police officer,  N.J.S.A. 2C:12-1(b)(5); fourth-degree resisting arrest

by flight,  N.J.S.A. 2C:29-2(a)(2); third-degree hindering apprehension,  N.J.S.A.

2C:29-3(b)(4); and fourth-degree hindering apprehension,  N.J.S.A. 2C:29-

                                                                          A-4694-16T4
                                        2
3(b)(4). The judge granted the State's motion for a discretionary extended term

pursuant to  N.J.S.A. 2C:44-3(a) on one of the two counts of second-degree

aggravated assault in the course of eluding and, following appropriate mergers,

sentenced defendant to an aggregate term of twenty-eight years in State prison,

twenty-five of which are subject to an eighty-five percent period of parole

ineligibility, and three years of parole supervision. We affirmed defendant's

conviction on direct appeal, State v. Loyal, No. A-1085-11 (App. Div. Oct. 30,

2014) (slip op. at 2). No petition for certification appears to have been filed.

      Defendant's arrest and conviction arose out of a high speed chase in a

stolen car. Id. at 3. He led police through Elizabeth at speeds of up to seventy

miles an hour before running a red light and broadsiding a taxicab, injuring both

the cabbie and his passenger. Ibid. The pursuing officers identified defendant

as the driver and testified he was alone in the car. Id. at 3-4. As the police

caught up to defendant after the crash, he was trying to get out the driver's side

door. Id. at 3. The officers maneuvered their patrol car alongside the driver's

door, pinning it shut. Id. at 3-4. The officers testified defendant climbed across

the front seat, jumped out the passenger side door and ran until he was tackled

and subdued by the officers. Id. at 4.




                                                                          A-4694-16T4
                                         3
      Defendant testified in his own defense. He claimed he was an unwitting

passenger in the car, having accepted a ride from an old school acquaintance he

had not seen in many years and whose last name he did not know. Id. at 4.

Defendant claimed he tried to get the driver to pull over after he accelerated

away from the police, and tried to remove the keys from the ignition without

success. Ibid. He further insisted he was knocked unconscious in the crash and

awoke to find the driver gone and the officers pulling him out of the car,

punching him and claiming he was the driver. Ibid. Supporting the defense

theory that defendant was only a passenger in the car, defendant's counsel

pointed to evidence in the record that the passenger side air bag deployed in the

crash. Id. at 5. But because defendant did not present an expert, "[t]he court

ruled that defense counsel could question witnesses about the deployment of the

passenger-side airbag and comment about it in argument to the jury but could

not speculate as to the reason it had deployed." Ibid.

      Defendant raised six issues on appeal, including the insufficiency of the

identification testimony, the State's failure to investigate and apprehend the true

culprit, the court's "suppress[ion] [of] evidence of and comment about the

deployment of the front seat passenger air bag from which the jury could have

logically inferred that he was the front seat passenger and not the driver," and


                                                                          A-4694-16T4
                                        4
that cumulative error denied him a fair trial. Id. at 6-8. We rejected each of

those arguments. Id. at 8.

       In his amended PCR petition, defendant claimed his trial counsel was

ineffective by failing to hire experts to testify about the car's air bag deployment

system, fingerprint analysis of the steering wheel and DNA recovered from the

passenger side air bag to prove he was not the driver. He further claimed

appellate counsel was ineffective for failing to raise an excessive sentence claim.

       After hearing argument by assigned counsel, Judge Mega, who also

presided over defendant's trial and sentencing, issued a comprehensive written

opinion denying the petition on the basis that defendant had failed to establish a

prima facie claim for relief. See State v. Preciose,  129 N.J. 451, 462-64 (1992).

First addressing defendant's claim regarding his counsel's failure to call experts,

the judge noted defendant was convicted based on the testimony of the officers

as to what they saw, not physical proof of defendant's identity. The officers

testified they never lost sight of the car from the moment they attempted to pull

it over until after the crash, and that defendant was the only person to ever get

out.

       The judge found that because defendant made no effort to assert the facts

on which the experts he claims would have exonerated him would have based


                                                                           A-4694-16T4
                                         5
their opinions, his claims remained only bald assertions, insufficient to establish

a prima facie case of ineffective assistance. See State v. Cummings,  321 N.J.

Super. 154, 170 (App. Div. 1999) (noting a petitioner claiming his attorney

inadequately investigated facts necessary to support his defense, "must assert

the facts that an investigation would have revealed, supported by affidavits or

certifications based upon the personal knowledge of the affiant or the person

making the certification").

      Judge Mega also rejected defendant's claim that his appellate counsel was

ineffective for failing to assert an excessive sentence argument , observing

defendant's failure to explain how that argument would have been successful on

appeal. The judge noted defendant's acknowledgment that he was sentenced

within the range permitted by law and his failure to establish either that the

aggravating factors lacked competent, credible evidence in the record or that

notwithstanding proper application of the sentencing guidelines, the sentence

shocks the judicial conscience. See State v. Roth,  95 N.J. 334, 364-65 (1984).

      On this appeal defendant raises the following arguments:

            POINT I

            AS DEFENDANT RECEIVED INEFFECTIVE
            ASSISTANCE OF COUNSEL, HE WAS ENTITLED
            TO POST-CONVICTION RELIEF.


                                                                          A-4694-16T4
                                        6
            POINT II

            APPELLATE COUNSEL FAILED TO RAISE THE
            ISSUE WHETHER DEFENDANT'S SENTENCE
            WAS EXCESSIVE.

            POINT III

            AS THERE ARE GENUINE ISSUES OF MATERIAL
            FACTS IN DISPUTE, AN EVIDENTIARY HEARING
            WAS REQUIRED.

            POINT IV

            PCR COUNSEL WAS INEFFECTIVE FOR FAILING
            TO ARGUE THAT TRIAL COUNSEL NEGLECTED
            TO   INVESTIGATE    DEFENDANT'S   ALIBI
            WITNESS (NOT RAISED BELOW).

      To succeed on a claim of ineffective assistance, defendant must establish,

first, that "counsel's representation fell below an objective standard of

reasonableness" and, second, that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland v. Washington,  466 U.S. 668, 687-88, 694 (1984). A

defendant must do more than demonstrate that an alleged error might have "had

some conceivable effect on the outcome of the trial," State v. Sheika,  337 N.J.

Super. 228, 242 (App. Div. 2001), instead, he must prove the error is so serious

as to undermine the court's confidence that the "defendant's trial was fair, and

that the jury properly convicted him." State v. Pierre,  223 N.J. 560, 588 (2015).

                                                                         A-4694-16T4
                                        7
Measured by that standard, defendant has not established that he received

ineffective assistance of counsel on this record.

      We agree with Judge Mega that defendant's claims of ineffectiveness of

his trial counsel fail because he presented absolutely no evidence as to what an

engineering, DNA or fingerprint expert could or would have opined and on the

basis of what facts. Defendant's assertions as to what such experts might have

testified to at trial are thus only speculation and insufficient to prove that

counsel's failure to call experts materially contributed to his conviction. See

State v. Jones,  219 N.J. 298, 311 (2014).

      As to appellate counsel's failure to have raised an excessive sentence

argument, it is well established that appellate counsel need not advance every

argument a defendant urges, even if non-frivolous. Jones v. Barnes,  463 U.S. 745, 750-54 (1983). Moreover, having reviewed the sentencing transcript, we

are convinced any such argument would have been unavailing. Defendant was

twenty-five years old and a fugitive from the Intensive Supervision Program

when he committed the crimes for which he was sentenced. As Judge Mega

explained in meticulous detail at the time of sentencing, defendant had an

extensive juvenile record and at least six prior convictions for indictable

offenses as an adult, including convictions for narcotics distribution, unlawful


                                                                       A-4694-16T4
                                        8
possession of a weapon, theft offenses and aggravated assault of a police officer.

He had already been sentenced to six prior State prison terms, and had two ISP

or parole violations, two probation terms and two violations of probation on his

record. Judge Mega carefully explained his reasons for imposing a discretionary

extended term, discussing each factor at length, as well as why consecutive

sentences were warranted under State v. Yarbough,  100 N.J. 627, 643-44 (1985).

As Judge Mega's careful findings and balancing of the aggravating and

mitigating factors were supported by adequate evidence in the record, and the

sentence he imposed was neither inconsistent with sentencing provisions of the

Code of Criminal Justice nor shocking to the judicial conscience, see State v.

Fuentes,  217 N.J. 57, 70 (2014), appellate counsel's failure to argue an excessive

sentence claim could not be deemed to constitute ineffective assistance. See

State v. Gaither,  396 N.J. Super. 508, 514 (App. Div. 2007).

      Finally, we reject defendant's argument that his PCR counsel was

ineffective by failing to argue trial counsel's ineffectiveness for failing to locate

the old school acquaintance defendant claimed drove the car that broadsided the

taxicab.   Defendant has failed to present any competent evidence that the

acquaintance, whom defendant claimed he had not seen since he was nine years

old and whose last name he did not know, even existed, much less could be


                                                                            A-4694-16T4
                                         9
found and would admit that he and not defendant was the driver.             Thus,

defendant cannot show that PCR counsel's performance was deficient or that

there is a reasonable probability that but for counsel's errors, the result of the

PCR proceeding would have been different. See Strickland,  466 U.S.  at 687-88,

694.

       Affirmed.




                                                                         A-4694-16T4
                                       10