Opinion
DOCKET NO. A-2928-13T2
04-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID BAYLOR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-06-0687. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant David Baylor appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
We previously set forth the facts in this matter in State v. Baylor, 423 N.J. Super. 578 (App. Div. 2011), certif. denied, 210 N.J. 263 (2012), and briefly restate certain facts relevant to this appeal.
On December 13, 2005, Lorenzo Gonzalez operated an after-hours club in Paterson with money provided by the Federal Bureau of Investigation (FBI). The club was intended to attract gang members that the FBI was investigating.
On December 13, 2005, defendant went to the club with Hamid Shabazz (Shabazz) and Reginald Barris (Barris). They were told by a friend, Beatriz Hernandez (Beatriz), that there would be gambling and a lot of money at the club and they should rob it. When defendant, Shabazz, and Barris arrived at the club, Beatriz, Debbie Aponte-Tovar (Aponte-Tovar), Michael Almonte (Almonte), Ralph Hernandez, Jesus Gonzalez, John Melendez (Melendez), and Tara Woods (Woods) were present.
At some point during the evening, Beatriz observed about $5000 on a dice table and spoke with defendant and Shabazz, who confirmed that the robbery was going to take place. Barris had left the club because he was ill. Defendant and Shabazz left the club and returned wearing black masks. Defendant was armed with a gun.
Defendant approached a gaming table and shot Jesus Gonzalez. He then walked over to a pool table where Woods was located. Woods asked defendant not to kill her, but defendant shot her in the head. Defendant then shot Ralph Hernandez and Melendez. Each of the four victims died from single gunshots to the head.
Defendant and Shabazz left the club and were driven by Beatriz to a nearby store. They offered Beatriz some of the money they had taken, but she did not accept it. Beatriz testified during the trial that defendant and Shabazz joked about the shootings while they were in her car.
During the Paterson Police Department's investigation of the shootings, Lorenzo Gonzalez identified defendant as the shooter. Beatriz spoke with the police, acknowledged her involvement in the robbery, and identified defendant as the shooter. Aponte-Tovar also identified defendant, Shabazz, and Barris as having been involved in the robbery.
Defendant was arrested and, after being informed of his Miranda rights, admitted that he was at the club at the time of the incident. He denied any involvement in the robbery and the shootings.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant was charged under Passaic County Indictment No. 06-06-0687 with four counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2) (counts one, four, seven, and ten); four counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (counts two, five, eight, and eleven); four counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(1) and N.J.S.A. 2C:15-1(a)(3) (counts three, six, nine, and twelve); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count thirteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count fourteen); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count fifteen).
After a jury trial, defendant was found guilty of four counts of murder (counts one, four, seven, and ten), four counts of felony murder (counts two, five, eight, and eleven), two counts of first-degree robbery (counts three and nine), one count of unlawful possession of a weapon (count fourteen), and one count of certain persons not to have weapons (count fifteen). Defendant was found not guilty of the remaining charges. The court imposed four consecutive life sentences without parole for the murders; two concurrent twenty-year custodial terms subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for the robberies; and a consecutive ten-year custodial term with a five-year period of parole ineligibility for the certain persons conviction.
Defendant was not sentenced on the other charges for which he was convicted because the court found those charges merged with the murder convictions for purposes of sentencing.
Defendant's convictions and sentences were affirmed on appeal. Baylor, supra, 423 N.J. Super. at 601. The Supreme Court denied his petition for certification. Baylor, supra, 210 N.J. 263.
On July 16, 2012, defendant filed a verified pro se petition for PCR in which he alleged "that his trial counsel was ineffective" and that his "appellate counsel was ineffective for failing to challenge his trial counsel's ineffectiveness." The court heard argument and denied the petition without an evidentiary hearing. The judge subsequently issued a written opinion. This appeal followed.
II.
On appeal, defendant raises the following issue:
POINT I:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO ADEQUATELY INVESTIGATE HIS CASE.
On appeal, defendant does not challenge the PCR court's rejection of his claim that his appellate counsel was ineffective.
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel in his defense. The right to counsel includes "the right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).
In Strickland, the Court established a two-part test, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 147 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58.
Under the first prong of the Strickland/Fritz standard, a petitioner "must show that counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. It must be demonstrated that counsel's representation "fell below an objective standard of reasonableness," and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Under the second prong of the Strickland/Fritz standard, a defendant "must show that the deficient performance prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Defendant must demonstrate 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, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
A petitioner must establish both prongs of the Strickland/Fritz standard in order to obtain a reversal of the challenged conviction. Id. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699; Fritz, supra, 105 N.J. at 52. A failure to satisfy either prong of the Strickland/Fritz standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702; State v. Parker, 212 N.J. 269, 280 (2012).
A PCR court should grant an evidentiary hearing "to resolve ineffective-assistance-of-counsel claims" if a defendant has demonstrated a "reasonable likelihood of succeeding under the" Strickland/Fritz standard. State v. Preciose, 129 N.J. 451, 462-63 (1992). In deciding whether to grant an evidentiary hearing, the court must view the facts presented in support of the PCR petition "in the light most favorable to [the] defendant." Ibid.
A defendant may assert a claim of ineffective assistance of counsel "when counsel fails to conduct an adequate pre-trial investigation." State v. Porter, 216 N.J. 343, 352 (2013). This claim is based on the trial counsel's "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." State v. Chew, 179 N.J. 186, 217 (2004) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).
A PCR petition that alleges that trial counsel was deficient due to counsel's failure to adequately investigate must include "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." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When presented with such supporting documents, the appellate court "consider[s] petitioner's contentions indulgently and view[s] the facts asserted by him in the light most favorable to him." Porter, supra, 216 N.J. at 353 (alterations in original) (quoting Cummings, supra, 321 N.J. Super. at 170).
Viewing the facts asserted by a defendant in the light most favorable to him or her does not mean that the court should treat bare assertions included in the PCR petition as sufficient proof for a prima facie case of ineffectiveness. Cummings, supra, 321 N.J. Super. at 170-71. Without evidence as to what testimony or evidence would have been discovered had trial counsel investigated further, a defendant's allegations do not create a prima facie showing of ineffective assistance of counsel. Id. at 171.
Based upon our review of the record, we are convinced the PCR court correctly concluded that defendant failed to establish the first prong of the Strickland standard. Beyond the conclusory assertion that his trial counsel was ineffective, defendant's petition and submissions are devoid of any facts supported by affidavit or certification demonstrating that his counsel's performance was deficient. The Court Rules require "that factual assertions in a petition for post-conviction relief be made by affidavit or certification in order to secure an evidentiary hearing." State v. Jones, 219 N.J. 298, 312 (2014) (citing R. 3:22-10(c)). As the PCR court correctly noted, "[t]here is absolutely no factual or legal deficiency established in [defendant's] PCR [petition]; there is merely broad and totally unsupported allegations that counsel was ineffective."
Moreover, even assuming that defendant's counsel's investigation was deficient, defendant did not present any cognizable evidence establishing that there is a "reasonable probability that, but for" his counsel's alleged failure the result of his trial would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The record supports the PCR court's finding that defendant made no showing that additional investigation, including interviewing witnesses or inspecting the crime scene, would have yielded evidence or testimony that would have affected the outcome of the trial. We are therefore satisfied the PCR court correctly concluded that defendant did not satisfy the second prong of the Strickland standard.
We are convinced defendant's reliance upon State v. Savage, 120 N.J. 594 (1990), is misplaced. Defendant contends that the Court in Savage held that a defense counsel's alleged failure to investigate "constitute[s] a prima facie case of per se ineffectiveness" and therefore the PCR court here "erred by restricting defendant's claim of ineffectiveness of counsel to Strickland's two-pronged test." We disagree.
The Court in Savage considered the defendant's ineffective assistance claims, which in part were founded upon counsel's alleged failure to adequately consult with the defendant prior to his capital-murder trial and failure to conduct an adequate investigation. The Court discussed the application of the Strickland standard and noted that, under the second prong, a defendant is not required to demonstrate prejudice "when counsel's errors are so grave that 'no amount of showing of want of prejudice could [sic] cure it.'" Id. at 614 (quoting United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d 657, 668 (1984)). The Court limited application of "[t]he per se analysis [to] those cases in which counsel's performance is so likely to prejudice the accused that it is tantamount to a complete denial of counsel." Id. at 616.
The Court provided examples of when the per se analysis is appropriate, none of which are extant here:
For example, counsel's failure to appear at a "critical stage" of the proceedings, see, e.g., Siverson v. O'Leary, 764 F.2d 1208 (7th Cir. 1985) (defense counsel absent during return of the verdict and jury deliberations), or counsel having an actual conflict of interest, see, e.g., Government of Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir. 1984) (defense counsel faced criminal liability on same charges on which defendant was tried and acted as prosecution's witness), would justify a presumption of prejudice.
[Savage, supra, 120 N.J. at 616.]
The Court in Savage concluded that defense counsel did not perform an adequate investigation, but expressly rejected a per se finding of prejudice based upon counsel's failure and "review[ed] defense counsel's actions under the two-prong Strickland standard." Id. at 617. We are therefore satisfied that the PCR court properly applied the Strickland standard here and that the record amply supports its conclusion that defendant failed to present any evidence establishing either prong of the Strickland standard. See, e.g., State v. Arthur, 184 N.J. 307, 325-26 (2005) (applying Strickland standard to defendant's PCR claim that his trial counsel was ineffective by failing to conduct an investigation).
We also reject defendant's claim that the court should have conducted an evidentiary hearing. A hearing is required when a defendant presents a prima facie case for PCR under the Strickland standard, the existing record is inadequate to resolve defendant's claim, and the court determines an evidentiary hearing is required. Porter, supra, 216 N.J. at 354 (citing R. 3:22-10(b)). A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702. Here, the existing record provided an adequate basis for the court's finding that defendant did not establish a prima facie case of ineffective assistance of counsel under the Strickland standard, and therefore an evidentiary hearing was not required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION