STATE OF NEW JERSEY VS. KENNETH A. BARR(10-02-0076, SALEM COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0351-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH A. BARR,

Defendant-Appellant.
________________________________

Argued telephonically October 4, 2017 –
Decided November 2, 2017

Before Judges Koblitz and Manahan.

On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No.
10-02-0076.

Kenneth Barr, appellant, argued the cause pro
se.

Marianne V. Morroni, Assistant Prosecutor,
argued the cause for respondent (John T.
Lenahan, Salem County Prosecutor, attorney;
Ms. Morroni, on the brief).

PER CURIAM

Defendant Kenneth Barr appeals from the July 9, 2015 order

denying his third petition for post-conviction relief (PCR) based

on ineffective assistance of counsel. Having considered
defendant's arguments in light of the record and controlling law,

we affirm.

We briefly recite the underlying facts and procedural history

relevant to our decision. On October 3, 2008, defendant solicited

a friend to shoot his girlfriend. The shooting, in defendant's

presence, resulted in the death of the girlfriend. On December

23, 2010, defendant pled guilty to first-degree murder, N.J.S.A.

2C:11-3a(1), in exchange for a forty-year sentence of

incarceration subject to an eighty-five percent parole

disqualifier, pursuant to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2. Appropriate fines and penalties were also imposed.

Defendant filed a notice of appeal on September 14, 2011. An

order dismissing the appeal was filed on December 7, 2011.

A pro se petition for PCR was filed in January 2012.

Predicated upon defendant's claim of ineffective assistance of

counsel, an evidentiary hearing was conducted on February 1, 2013,

at which defendant and his trial counsel testified. During

defendant's testimony, he referenced his relationship with his

trial counsel and his claim that his counsel did not provide him

with discovery until after his plea. Defendant further testified

2 A-0351-15T2
regarding when he learned of a video that he believed was

exculpatory.1

Q. Uh-huh. I'd like to turn your
attention to your relationship with
your prior trial counsel. You heard
his testimony.

So, while he was representing
you, do you feel he attempted to get
your version of the events in
question?

A. No, he never asked me my version of
the story, he just assumed I was
guilty. Like, I tried to tell him
and explain to him, like, what
happened in my version, and he never
gave me my discovery, or nothing.
So, well not to talk about that; but
if he would have looked at certain
things in my discovery, he would
have seen that I wasn't lying to
him, and he just took the statement
from me.

Like — like if he would have
the times from the camera footage
and read the statement of the eye
[-]witness who wasn't involved in
the case. I believe his name is
Jamal Johnson. He would have seen
that I — my story, what I was
telling him, corroborated it. But,
he just assumed I was guilty.

Q. And, this is — you, obviously, had
become aware of this video that
shows these discrepancies?

1
Defendant's trial counsel testified during the hearing that
discovery was provided prior to the plea.

3 A-0351-15T2
 A. I never knew — I never know about
the video footage; I never knew
about none of the statements;
because I never had my discovery.
(Indiscernible)

Q. When did — when did you, in fact,
learn about these?

A. When I went to prison and Dale Jones
sent me a copy of my discovery.

Q. So, you never learned about this
possible video evidence in your
favor, until after you had entered
into a [p]lea?

A. Yep.

The PCR was denied. We affirmed after appeal. State v.

Barr, No. A-4790-12 (App. Div. Feb. 25, 2015).

Thereafter, defendant filed a second petition for PCR on

February 6, 2014. That petition was denied in a letter opinion.

No appeal was taken from that decision.2

Defendant filed a third petition for PCR on April 29, 2015.

The PCR judge denied the petition in a written opinion holding

that the factual predicate for the claims could have been

2
The record on appeal does not contain any documents relating to
the second PCR, including the letter opinion. According to the
State's brief, the "PCR was subsequently denied on April 15, 2014,
based on the defendant's failure to establish good cause by
asserting one of the grounds for newly discovered evidence or the
issues had been previously litigated."

4 A-0351-15T2
discovered earlier and that the claims were previously

adjudicated. This appeal followed.

On appeal defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN NOT GRANTING
PETITIONER ORAL ARGUMENTS OR AN EVIDENT[I]ARY
HEARING, BEING THAT PETITIONER HAS A[] SIGNED
CERTIFIED STATEMENT FROM THE STATE[']S STAR
WITNESS STEVEN BARR, THAT GIVES NEW
EXCU[L]PATORY TESTIMONY IN FAVOR OF
PETITIONER[,] AND ALSO TO DETERMINE WHY
PETITIONER[']S TRIAL ATTORNEY FAILED TO
INVESTIGATE OR QUESTION WINTESSES [] IN
VIOLATION OF PETITIONER[']S U.S. CONST.
AMENDS. IV, V, IX, AND XIV; N.J. CONST. ART.
[I].

POINT II

THE TRIAL COURT ERRED IN NOT HOLDING [A]
HEARING TO DETERMINE IF THERE IS MERIT TO
PETITIONER['S] CLAIMS THAT HIS TRIAL ATTORNEY
DID NOT ADVISE HIM OF HIS RIGHT TO REVOKE HIS
PLEA AFTER THE ORIGINAL AGREEMENT WAS CHANGED
BECAUSE IT WAS AN ILLEGAL SENTENCE [] IN
VIOLATION OF PETITIONER[']S U.S. CONST.
AMENDS. IV, V, IX, AND XIV; N.J. CONST. ART.
[I].

POINT III

THE [TRIAL] COURT ERRED WHEN IT DID NOT CREDIT
PETITIONER[] THE THREE DAYS OF HIS
INCARCERATION IN THE STATE OF DELAWARE WHILE
HE AWAITED TO BE TRANSFER[R]ED TO THE STATE
OF NEW JERSEY IN VIOLATION OF PETITIONER[']S
U.S. CONST. AMEND V, IX.

In a reply brief, defendant raises the following points:

5 A-0351-15T2
 POINT I

THE STATE MISREPRESENTED THE ISSUES RAISED IN
THIS [] APPEAL[,] IN REFERENCE TO WHAT THE
PETITIONER IS USING AS NEW EVIDENCE AND WHAT
HE IS USING AS OLD EVIDENCE TO HELP SUPPORT
HIS NEW EVIDENCE[,] I.E.[,] STEVEN BARR SIGNED
CERTIFICATION DATED [MARCH 22, 2015].

POINT II

THE STATE MISREPRESENTED THE COURT RULES ON
WHAT IS NEW EVIDENCE AND THE PROPER WAY TO
DETERMINE IF A PRIMA FACIE CASE OF INEFFECTIVE
ASSSISTANCE HAS BEEN SHOWN.

POINT III

THE STATE MISREPRESENTED THE PETITIONER[']S
ARGUMENT IN REFERENCE TO THE PETITIONER[']S
TRIAL COUNSEL['S] FAILURE TO INFORM HIM OF HIS
RIGHT TO REVOKE HIS PLEA AFTER THE ORIGINAL
AGREED UPON SENTENCE WAS CHANGED.

Our analysis of the issues raised on appeal is guided by a

review of the two court rules that apply to a second or subsequent

PCR. Rule 3:22-12(a)(2) states:

[N]o second or subsequent petition shall be
filed more than one year after the latest of:

(A) the date on which the constitutional right
asserted was initially recognized by the
United States Supreme Court or the Supreme
Court of New Jersey, if that right has been
newly recognized by either of those Courts and
made retroactive by either of those Courts to
cases on collateral review; or

(B) the date on which the factual predicate
for relief sought was discovered, if that
factual predicate could not have been

6 A-0351-15T2
 discovered earlier through the exercise of
reasonable diligence; or

(C) the date of the denial of the first or
subsequent application for post-conviction
relief where ineffective assistance of counsel
that represented the defendant on the first
or subsequent application for post-conviction
relief is being alleged.

Here, defendant appeals the denial of his third PCR petition.

Consequently, Rule 3:22-12(a)(2) governs. Under Rule 3:22-4(b),

[a] second or subsequent petition for post-
conviction relief shall be dismissed unless:

(1) it is timely under [Rule] 3:22-12(a)(2);
and

(2) it alleges on its face either:

(A) that the petition relies on a
new rule of constitutional law, made
retroactive to defendant's petition
by the United States Supreme Court
or the Supreme Court of New Jersey,
that was unavailable during the
pendency of any prior proceedings;
or

(B) that the factual predicate for
the relief sought could not have
been discovered earlier through the
exercise of reasonable diligence,
and the facts underlying the ground
for relief, if proven and viewed in
light of the evidence as a whole,
would raise a reasonable
probability that the relief sought
would be granted; or

(C) that the petition alleges a
prima facie case of ineffective
assistance of counsel that

7 A-0351-15T2
 represented the defendant on the
first or subsequent application for
post-conviction relief.

We reject defendant's contentions and affirm the denial of

his third petition for PCR for two reasons.

First, the petition failed to comply with the time

restrictions set forth in Rule 3:22-12(a)(2). Defendant is not

contending that there is a new rule of constitutional law.

Instead, defendant contends that he could not have discovered the

factual predicate for his trial counsel's ineffective assistance,

i.e., his brother, Steven Barr's recent information about the

crime as set forth in an undated certification. Defendant also

argues that the videotape footage and the statement of Jamar

Johnson, although "old evidence," also comprised the predicate for

his claim of ineffective assistance.

We address the latter argument by noting that neither the

videotape nor the Johnson statement qualify as a factual predicate

that would render defendant's petition timely. Defendant was

aware of the videotape and the statement in early 2011, at the

latest. As such, defendant's awareness of this evidence precludes

it as the factual predicate to justify his late filing.

Notwithstanding the issue of timeliness, it is notable that

both the police report which details the attire and step-by-step

whereabouts of defendant, Steven Barr, and a friend at the motel

8 A-0351-15T2
as taken from the videotape on the date of the shooting, as well

as the Johnson statement, are compelling proof not of defendant's

innocence, but rather of his guilt.3

Saliently, the police were able to identify defendant as a

suspect in the murder using footage from the videotape. Further,

in his statement to the police, Johnson indicated that two days

prior to the shooting he overheard a telephone altercation between

the victim and defendant. The call was on speakerphone, and the

victim identified the caller as defendant. Johnson indicated that

defendant repeatedly called the victim, even after he was told to

leave her alone. Johnson then noted that he heard defendant say

he was going to kill the victim. Johnson further stated that upon

answering an incoming call, defendant proceeded to threaten him

by suggesting he would get at Johnson like the victim was going

to get it. In sum, no fair reading of the police report and

Johnson's statement would lead trial counsel to conclude that they

were exculpatory.

Defendant also argues that Steven Barr's undated

certification could not have been reasonably discovered over the

course of seven years. Even were we to accept this argument,

rejected by the PCR judge, and find the third PCR was timely based

3
The videotape was not made part of the Appellate record.

9 A-0351-15T2
upon newly discovered evidence, defendant cannot satisfy the first

prong of the Strickland test on the merits.4

To show ineffective assistance of counsel, a defendant must

satisfy the two-pronged test of Strickland. "The defendant must

demonstrate first that counsel's performance was deficient, i.e.,

that 'counsel made errors so serious that counsel was not

functioning as the counsel guaranteed the defendant by the Sixth

Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693) (internal quotation omitted). The defendant must

overcome a "strong presumption that counsel rendered reasonable

professional assistance." Ibid. Second, "a defendant must also

establish that the ineffectiveness of his attorney prejudiced his

defense. 'The defendant must show that there is a reasonable

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

result of the proceeding would have been different.'" Id. at 279-

80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698).

"Counsel cannot be faulted for failing to expend time or

resources analyzing events about which they were never alerted."

4
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), adopted in State v. Fritz, 105 N.J. 42 (1987).

10 A-0351-15T2
State v. DiFrisco, 174 N.J. 195, 228 (2002). "Counsel's actions

are usually based, quite properly . . . on information supplied

by the defendant. In particular, what investigation decisions are

reasonable depends critically on such information." Strickland,

supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695-

96 (1984). As the PCR record is devoid of proof that defendant's

trial counsel was or could have been aware of the content of Steven

Barr's certification predicated upon its timing, the claim of

ineffective assistance is wholly without merit.

Defendant's remaining arguments are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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