STATE OF NEW JERSEY v. KENNETH LEWANDOWSKI

NOT FOR PUBLICATION WITHOUT THE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-0982-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KENNETH LEWANDOWSKI,

     Defendant-Appellant.
___________________________

                   Submitted November 16, 2020 - Decided December 8, 2020

                   Before Judges Rothstadt and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 15-07-
                   1221.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Abby P. Schwartz, Designated Counsel, on
                   the brief).

                   Christopher J. Gramiccioni, Monmouth County
                   Prosecutor, attorney for respondent (Monica do
                   Outeiro, Assistant Prosecutor, of counsel and on the
                   brief).

PER CURIAM
      Defendant Kenneth Lewandowski appeals from a May 11, 2018 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

      On January 11, 2016, defendant pled guilty to distribution of controlled

dangerous substances (CDS),  N.J.S.A. 2C:35-5(b)(4), and the unlawful practice

of medicine,  N.J.S.A. 2C:21-20. Defendant had been a practicing physician, but

his medical license was suspended in or around 2014. Despite the lack of a

medical license, defendant wrote oxycodone prescriptions on behalf of former

patients, using prescription forms bearing the name of another doctor.

       Rather than proceeding to trial, defendant negotiated a plea with the

State. As part of the negotiated plea, the State was willing to dismiss three of

the five charges against defendant. In addition, the State agreed to recommend

defendant be sentenced to six years, with a minimum two-year period of parole

ineligibility, if defendant agreed to testify against co-defendants and relinquish

his medical license.

      During the plea hearing, defendant told the judge he reviewed the plea

with his attorney, understood the plea, and was satisfied with the plea based on

discussions with his attorney. He also told the judge he was pleading guilty

because he was guilty of the crimes and was not under duress or subject to any


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coercion regarding the plea.       At sentencing, the judge found that "the

aggravating factors substantially outweigh[ed] the mitigating factors" and

sentenced defendant to two concurrent terms of six years with two years of

parole-ineligibility.

      Defendant filed an appeal limited to challenging the sentence. The matter

was heard by an appellate excessive sentencing panel. The panel held the

sentence was "not manifestly excessive or unduly punitive and [did] not

constitute an abuse of discretion" but remanded for the "entry of a corrected

judgment of conviction to include the proper number of . . . credits" and to

correct a clerical error. State v. Lewandowski, No. A-3775-15 (App. Div. Dec.

14, 2016).

      In January 2017, defendant filed a PCR petition, claiming he received

ineffective assistance of trial counsel. Defendant asserted his trial counsel failed

to: adequately investigate the case; file a bail motion; file a motion to suppress

illegally seized evidence; retain a handwriting expert; file a PTI application;

pursue a probable cause hearing; and raise a conflict of interest involving the

trial judge. Defendant also requested an evidentiary hearing.

      After hearing counsels' PCR arguments, Judge Paul X. Escandon rejected

defendant's claims, stating "[defendant] either makes bald assertions of deficient


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representation, failing to cite law . . . or fail[s] to provide citations to affidavits

or documentations to support his argument."          The judge addressed each of

defendant's claims and found them belied by the record or unsupported by any

facts that would establish the outcome of the various motions and investigations

would have been successful or otherwise altered defendant's guilty plea. In

addition, Judge Escandon denied defendant's request for an evidentiary hearing,

determining defendant "simply failed to provide sufficient proof" to necessitate

a hearing.

      On appeal, defendant argues the following:

      COUNSEL FOR DEFENDANT WAS INEFFECTIVE AS HE
      FAILED TO INVESTIGATE ANY ASPECT OF THE CASE,
      FAILED TO FILE ANY MOTIONS ON DEFENDANT'S
      BEHALF, CAUSING DEFENDANT TO SPEND 310 DAYS IN
      THE COUNTY JAIL IN ORDER TO RESOLVE THIS CASE.
      THIS SUBTLE COERCION DENIED DEFENDANT [] DUE
      PROCESS AND A FAIR TRIAL.
      Having reviewed the record, we reject defendant's contentions and affirm

substantially for the well-reasoned May 11, 2018 oral opinion rendered by Judge

Escandon. We add the following comments.

      A hearing on a PCR petition is only required when a defendant establishes

"a prima facie case in support of [PCR]," the judge determines that there are

disputed issues of material fact "that cannot be resolved by reference to the


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existing record," and the judge finds that "an evidentiary hearing is necessary to

resolve the claims for relief." R. 3:22-10(b); see also State v. Porter,  216 N.J.
 343, 355 (2013). A defendant is not entitled to an evidentiary hearing if the

"allegations are too vague, conclusory, or speculative[.]" State v. Marshall,  148 N.J. 89, 158 (1997). A defendant must allege specific facts and evidence

supporting his allegations. State v. Cummings,  321 N.J. Super. 158, 170 (1999)

(explaining that "in order to establish a prima facie claim, a [defendant] must do

more than make bald assertions that he was denied the effective assistance of

counsel"). The relevant facts must be shown through "affidavits or certifications

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

certification." Ibid.; see also R. 3:22-10(c).

       When determining whether to grant an evidentiary hearing, the PCR

[judge] must consider the facts in the light most favorable to the defendant to

determine whether defendant has established a prima facie claim. State v.

Preciose,  129 N.J. 451, 462-63 (1992). We review a court's decision to deny a

PCR petition without an evidentiary hearing for abuse of discretion. Id. at

462. Applying these principles, we see no abuse of discretion in Judge

Escandon's decision and conclude there is no basis for an evidentiary hearing.




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      To establish an ineffective assistance of counsel claim, a defendant must

satisfy the two-pronged test formulated 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). First, a defendant must demonstrate "counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed . . . by the
 Sixth Amendment." Fritz,  105 N.J. at 52 (quoting Strickland,  466 U.S. at 687).

Second, a defendant must prove he or she suffered prejudice due to counsel's

deficient performance. Strickland,  466 U.S.  at 687, 691–92. Defendant must

show by a "reasonable probability" that the deficient performance affected the

outcome. Fritz,  105 N.J. at 58.

      In the context of a PCR petition challenging a guilty plea based on

ineffective assistance of counsel, a defendant must demonstrate "a reasonable

probability that, but for counsel's errors, [the defendant] would not have pled

guilty and would have insisted on going to trial." State v. Nunez-Valdez,  200 N.J. 129, 139 (2009) (quoting State v. DiFrisco,  137 N.J. 434, 457 (1994)). A

defendant must also show "a decision to reject the plea bargain would have been

rational under the circumstances." Padilla v. Kentucky,  559 U.S. 356, 372

(2010) (citing Roe v. Flores-Ortega,  528 U.S. 470, 480, 486 (2000)); see also




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State v. Maldon,  422 N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla

regarding application of the second Strickland prong).

      Here, defendant was charged with five separate crimes that collectively

carried a potential sentence of thirty-five years if he had gone to trial. Instead,

defendant pled guilty to one count of distribution of CDS and one count of the

unlawful practice of medicine.       The remaining counts were dismissed in

accordance with the plea agreement. Even on the two counts to which defendant

pled guilty, he faced a maximum sentence of fifteen years. Defendant was

ultimately sentenced on each of the two counts to a term of six years to run

concurrently in accordance with the plea agreement. Given defendant's receipt

of a favorable plea agreement, a decision to reject the plea offer would not have

been rational under the circumstances.

      We next consider defendant's argument that trial counsel was ineffective

as a result of failing to file various motions. However, the filing of meritless

motions and "[t]he failure to raise unsuccessful legal arguments does not

constitute ineffective assistance of counsel." State v. Worlock,  117 N.J. 596,

625 (1990) (citing Strickland,  466 U.S. at 688).

      Defendant failed to demonstrate that if his trial counsel had filed the

suggested motions, defendant would have prevailed on the merits of those


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motions. In addition, defendant failed to proffer specific facts by way of a

certification or affidavit evidencing that such motions would have been

successful. Further, Judge Escandon provided a detailed explanation as to why

each asserted motion was unlikely to have succeeded. Thus, we discern no abuse

of discretion in Judge Escandon's denial of defendant's PCR petition.

      We similarly reject defendant's claim that trial counsel failed to

investigate any aspect of the case. Defendant failed to specify the facts and

circumstances that should have been investigated, what would have been

discovered through additional investigation, and how the investigatio n would

have affected his decision to plead guilty.

      We are satisfied the record fully supports the conclusion that defendant

failed to meet both prongs of the Strickland/Fritz test. Defendant's claims

regarding the deficiencies on the part of his trial counsel are nothing more than

improper bald assertions and are insufficient to establish an ineffective

assistance of counsel claim.

      To the extent we have not addressed any of defendant's arguments, it is

because we conclude they are without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

      Affirmed.


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