STATE OF NEW JERSEY v. MARC KIRKLAND

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4143-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARC KIRKLAND,

     Defendant-Appellant.
_______________________________

                   Submitted January 11, 2021 – Decided January 25, 2021

                   Before Judges Fasciale and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Somerset County, Indictment No. 13-08-
                   0432.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (James D. O'Kelly, Designated Counsel, on
                   the brief).

                   Michael H. Robertson, Somerset County Prosecutor,
                   attorney for respondent (Amanda Frankel, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from a March 5, 2019 order denying his petition for

post-conviction relief (PCR). He maintains both his trial and PCR counsel

rendered ineffective assistance. Judge Kathy C. Qasim entered the order and

rendered a thorough twenty-two-page written decision. We affirm.

      A jury found defendant guilty of first-degree robbery,  N.J.S.A. 2C:15-1.

We affirmed the conviction, State v. Kirkland, No. A-0114-15 (App. Div. Apr.

4, 2017), and the Supreme Court denied certification, State v. Kirkland,  230 N.J.
 609 (2017). In January 2018, defendant filed his pro se PCR petition, which his

PCR counsel amended in October 2018. Thereafter, defendant's PCR counsel

filed a brief and submitted certifications supporting the petition. In February

2019, Judge Qasim conducted oral argument, then issued her written decision

and order under review.

      On appeal, defendant raises the following arguments for this court's

consideration:

            POINT I

            THE PCR [JUDGE'S] FAILURE TO ADJUDICATE
            ALL OF [DEFENDANT'S] CLAIMS REQUIRES A
            REMAND FOR A NEW PCR PROCEEDING[.]

            POINT II

            AN EVIDENTIARY HEARING WAS REQUIRED TO
            RESOLVE [DEFENDANT'S] CLAIM THAT TRIAL

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            COUNSEL WAS INEFFECTIVE AT THE PLEA-
            BARGAINING STAGE[.]

            POINT III

            THIS MATTER SHOULD BE REMANDED
            BECAUSE       [DEFENDANT]      RECEIVED
            INEFFECTIVE ASSISTANCE OF PCR COUNSEL[.]

                                       I.

      We reject defendant's contention that the PCR judge failed to adjudicate

the PCR claims in his pro se petition (asserting ten claims), as amended by his

own PCR counsel (making an additional thirty-one claims), and as contained in

the certifications submitted by PCR counsel. PCR counsel repeated many of the

original arguments, and the additional contentions in the amended petition were

otherwise contained in the original petition, as amplified by the brief filed by

PCR counsel. To the extent that any of the arguments were barred under Rule

3:22-4 and Rule 3:22-5, such as assertions related to the jury charges, the judge

carefully explained that she considered trial counsel's performance against the

overwhelming evidence of guilt and concluded that trial counsel was an effective

advocate. Although the judge may not have specifically enumerated each of the

forty-one contentions, our review of her written decision demonstrates that she

comprehensively analyzed defendant's PCR arguments.



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                                       II.

      A defendant is only entitled to an evidentiary hearing when he "'has

presented a prima facie [claim] in support of [PCR],'" meaning that a defendant

must demonstrate "a reasonable likelihood that his . . . claim will ultimately

succeed on the merits." State v. Marshall,  148 N.J. 89, 158 (1997) (quoting

State v. Preciose,  129 N.J. 451, 463 (1992)). A defendant must "do more than

make bald assertions that he was denied the effective assistance of counsel" to

establish a prima facie claim entitling him to an evidentiary hearing. State v.

Cummings,  321 N.J. Super. 154, 170 (App. Div. 1999). A defendant bears the

burden of establishing a prima facie claim. State v. Gaitan,  209 N.J. 339, 350

(2012). We "view the facts in the light most favorable to a defendant to

determine whether a defendant has established a prima facie claim." Preciose,

 129 N.J. at 463-64.

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

defendant must satisfy the two-pronged test enumerated in Strickland v.

Washington,  466 U.S. 668, 687 (1984), which our Supreme Court adopted in

State v. Fritz,  105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong,

a defendant must establish that his counsel "made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the Sixth


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Amendment."       466 U.S.  at 687.        The defendant must rebut the "strong

presumption that counsel's conduct [fell] within the wide range of reasonable

professional assistance[.]" Id. at 689. Thus, this court must consider whether

counsel's performance fell below an object standard of reasonableness. Id. at

688.

       To satisfy the second Strickland/Fritz prong, a 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. A defendant must establish "a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's

performance has been so deficient as to create a reasonable probability that these

deficiencies materially contributed to defendant's conviction, the constitutional

right will have been violated." Fritz,  105 N.J. at 58.

       Here, defendant failed to demonstrate a prima facie case of ineffectiveness

of trial counsel either during plea discussions or trial. The record reflects the

State would not have downgraded the charge, and therefore there was no need

to produce medical records that defendant believes would have made him

eligible for drug court. As a result, we see no prejudice. At any rate, as the


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State's merits brief points out, even though the assistant prosecutor had no

objection to a TASC evaluation, there was no indication that the charge would

have been downgraded. Indeed, trial counsel attempted to convince the State to

downgrade the charge so defendant could be considered for drug court, but the

State was unwilling to do so, primarily because there was no evidence that at

the time defendant robbed the bank he was under the influence.

                                      III.

      We next address defendant's claim that he was denied effective assistance

of PCR counsel, noting that this argument was not raised before the PCR judge.

The performance of PCR counsel is examined under a different standard than

the standard applicable to trial counsel. Regarding a claim that PCR counsel

was ineffective, the Supreme Court has stated:

            PCR counsel must communicate with the client,
            investigate the claims urged by the client, and
            determine whether there are additional claims that
            should be brought forward. Thereafter, counsel should
            advance all of the legitimate arguments that the record
            will support. If after investigation counsel can
            formulate no fair legal argument in support of a
            particular claim raised by defendant, no argument need
            be made on that point. Stated differently, the brief must
            advance the arguments that can be made in support of
            the petition and include defendant's remaining claims,
            either by listing them or incorporating them by
            reference so that the judge may consider them.


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            [State v. Webster,  187 N.J. 254, 257 (2006).]

"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR

proceeding." State v. Hicks,  411 N.J. Super. 370, 376 (App. Div. 2010) (citing

State v. Rue,  175 N.J. 1, 4 (2002)). "This relief is not predicated upon a finding

of ineffective assistance of counsel under the relevant constitutional standard.

Rule 3:22-6(d) imposes an independent standard of professional conduct upon

an attorney representing a defendant in a PCR proceeding." Ibid. (citations

omitted). PCR counsel is not, however, required to bolster claims raised by a

defendant that are without foundation, but rather, only those "the record will

support." Webster,  187 N.J. at 257.

      With this standard in mind, we conclude defendant failed to establish a

prima facie case that his PCR counsel rendered ineffectiveness. She advanced

his PCR claims, and as to the failure to produce the medical records, here too

we see no prejudice because defendant was ineligible for drug court, and the

State would not have admitted him into that program.

      Affirmed.




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