STATE OF NEW JERSEY v. KEITH SCOTT

NOT FOR PUBLICATION WITHOUT THE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-2281-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KEITH SCOTT,

     Defendant-Appellant.
_______________________

                   Submitted November 17, 2021 – Decided December 29, 2021

                   Before Judges Whipple and Geiger.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Hudson County, Indictment No. 14-12-
                   2033.

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

                   Esther Suarez, Hudson County Prosecutor, attorney
                   for respondent (Stephanie Davis Elson, Assistant
                   Prosecutor, on the brief).

PER CURIAM
        Defendant, Keith Scott, appeals from the November 4, 2019 denial of his

petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm the denial of PCR for the reasons stated by Judge John Young in his

thorough written decision accompanying the order, but remand to correct the

judgment of conviction.

        On December 3, 2014, defendant was indicted for second-degree

possession of a weapon for an unlawful purpose, second-degree unlawful

possession of a weapon, and second-degree certain persons not to have a

weapon. Prior to trial, the State dropped all counts in the indictment except

second-degree certain persons not to have a weapon.           The case was tried

before a jury, and on June 9, 2016, the jury found defendant guilty of second -

degree certain persons not to have a weapon. Defendant was sentenced to

twelve years in New Jersey State Prison with a five-year parole disqualifier.

        We rejected defendant's arguments on direct appeal.  1 On January 4,

2019, defendant filed his first timely pro se petition for PCR, which the court

denied. Defendant raises the following issues on appeal:

              POINT ONE:   THE PCR COURT ERRED IN
              DENYING DEFENDANT AN EVIDENTIARY
              HEARING   AS   TESTIMONY  IS  NEEDED
              REGARDING TRIAL COUNSEL'S FAILURE TO

1
    State v. Scott, No. A-1027-16 (App. Div. Jan. 17, 2018) (slip op. at 1).
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            PROPERLY     CROSS-EXAMINE   POLICE
            WITNESSES AND ESTABLISH A CHAIN OF
            CUSTODY FOR THE HANDGUN.

            POINT TWO:    THE PCR COURT ERRED IN
            DENYING DEFENDANT AN EVIDENTIARY
            HEARING   AS   TESTIMONY     IS NEEDED
            REGARDING TRIAL COUNSEL'S FAILURE TO
            REQUEST A JUDGMENT OF ACQUITTAL AT
            THE CLOSE OF THE STATE'S CASE.

            POINT THREE: THE PCR COURT ERRED IN
            DENYING DEFENDANT AN EVIDENTIARY
            HEARING   AS  TESTIMONY    IS  NEEDED
            REGARDING TRIAL COUNSEL'S DECISION TO
            WITHDRAW HIS MOTION FOR A NEW TRIAL.

            POINT FOUR: THE PCR COURT ERRED IN
            DENYING DEFENDANT AN EVIDENTIARY
            REARING BECAUSE TESTIMONY IS NEEDED
            REGARDING APPELLATE COUNSEL'S FAILURE
            TO RAISE SENTENCING ISSUES ON APPEAL.

      Because the facts and procedural history were discussed at length in our

prior opinion, State v. Scott, No. A-1027-16 (App. Div. Jan. 17, 2018) (slip op.

at 1-3), we only repeat what is essential for purposes of this appeal.

      To establish a prima facie claim of ineffective assistance of counsel, a

defendant must satisfy the two-prong test established in Strickland v.

Washington,  466 U.S. 668 (1984). A defendant must show that (1) "counsel

made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment" of the United States

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Constitution, id. at 687, and (2) the defect in performance prejudiced 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," id. at 694; see also State v. Fritz,  105 N.J. 42, 58 (1987) (adopting

the Strickland standard).

        We give deference to the PCR court's factual findings on a PCR petition

"when supported by adequate, substantial and credible evidence." State v.

Harris,  181 N.J. 391, 415 (2004) (quoting Toll Bros., Inc. v. Twp. of West

Windsor,  173 N.J. 502, 549 (2002)). We give no deference to and are not

bound by the PCR court's legal conclusions, which we review do novo. Ibid.

(citing Toll Bros.,  173 N.J. at 549). "[F]or mixed questions of law and fact,

we give deference, under Rova Farms,[2] to the supported factual findings of

the trial court, but review de novo the [trial] court's application of any legal

rules to such factual findings." Id. at 416 (citing State v. Marshall,  148 N.J.
 89, 185 (1997)).

        Addressing defendant's first argument, Judge Young rejected the

assertion that trial counsel's failure to cross-examine the State's witnesses on

the chain of custody of the gun denied him the right to effective assistance of


2
    Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am.,  65 N.J. 474, 484 (1974).
                                                                          A-2281-19
                                       4
counsel. The court concluded questioning on the chain of custody after the

retrieval of the gun from the defendant's person would not have uncovered any

new information about how the weapon first ended up on defendant, and

therefore would not have contributed to the theory of the gun being planted.

The theory that police officers planted the gun, one that the trial counsel

asserted throughout the trial, would not have been furthered by questioning on

the chain of custody and that additional speculation about the source of the gun

would not provide grounds for a successful ineffective assistance claim.

      Judge Young also rejected defendant's second argument that his counsel

was ineffective when he failed to make a motion for judgment of acquittal

under State v. Reyes,  50 N.J. 454 (1967). The court found this omission

provided no basis to assert that trial counsel's performance fell below

reasonable, acceptable standards. Trial counsel is not required to argue that

the State failed to make a prima facie showing. With all of the favorable

inferences which could reasonably be drawn from the State's evidence, a

reasonable jury could have found petitioner guilty beyond a reasonable doubt

and that a motion for judgment of acquittal would have been fruitless.

      Similarly, the court rejected defendant's ineffective assistance claim due

to trial counsel's withdrawal of a motion for a new trial. The court determined


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that the evidence in the trial record was sufficient to support the verdict of

guilt beyond a reasonable doubt, and certainly was not so lacking as to

suggest, clearly and convincingly, that there was a manifest denial of justice

under the law, and that defendant did not show the withdrawal of the new trial

motion prejudiced him or fell below acceptable standards of professional

conduct by trial counsel.

      Finally, the court also rejected defendant's claim of ineffective assistance

for appellate counsel's failure to argue excessive sentencing.         Defendant

argued that mitigating factors eight and nine,  N.J.S.A. 2C:44-1(b)(8), (9),

ought to have been found by the trial court and should have been raised on

appeal.

      Judge Young found the aggravating and mitigating factors were well

supported by competent evidence; defendant, however, asserts mitigating

factor nine is supposed to be listed on the judgment of conviction (JOC) in lieu

of aggravating factor ten, but also asserts aggravating factor nine should be in

place of aggravating factor ten. Since there is some confusion about what the

court intended, we remand for the court to provide clarification regarding the

aggravating and mitigating factors in the JOC.




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      In all other respects, Judge Young correctly applied the relevant principles

and thoroughly addressed each asserted error raised in the PCR petition, searching

the record for demonstration of a reasonable probability that if counsel had done

these things, then the result of the trial would have been different. He ultimately

concluded they would not.

      The record fully supports Judge Young's findings and conclusions that

defendant did not establish a prima facie case of ineffective assistance of counsel.

Accordingly, an evidentiary hearing was not necessary or warranted. We remand

for correction of the JOC consistent with this opinion.

      Affirmed.




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