STATE OF NEW JERSEY VS. DAVID L. GASKINS (09-06-0258, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-3877-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID L. GASKINS,

Defendant-Appellant.
___________________________

Submitted April 2, 2019 – Decided June 10, 2019

Before Judges Yannotti and Natali.

On appeal from Superior Court of New Jersey, Law
Division, Sussex County, Indictment No. 09-06-0258.

Joseph E. Krakora, Public Defender, attorney for
appellant (Craig S. Leeds, Designated Counsel, on the
brief).

Francis A. Koch, Sussex County Prosecutor, attorney
for respondent (Shaina Brenner, Assistant Prosecutor,
of counsel and on the brief).

PER CURIAM
 Defendant David L. Gaskins appeals from the denial of his petition for

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

Following his convictions for second-degree conspiracy to distribute

cocaine, N.J.S.A. 2C:5–2 and 2C:35–5(a)(1) and (b)(2); third-degree conspiracy

to distribute cocaine within 1000 feet of a school, N.J.S.A. 2C:5–2 and 2C:35–

7; second-degree conspiracy to distribute cocaine within 500 feet of a public

building, N.J.S.A. 2C:5–2 and 2C:35–7.1; second-degree possession of cocaine

with intent to distribute, N.J.S.A. 2C:35–5(a)(1) and (b)(2); third-degree

possession of cocaine with intent to distribute within 1000 feet of school

property, N.J.S.A. 2C:35–5(a) and 2C:35–7; and second-degree possession of

cocaine with intent to distribute within 500 feet of a public building, N.J.S.A.

2C:35–5(a) and 2C:35–7.1, defendant filed a direct appeal. We affirmed his

conviction and sentence in an unpublished opinion, State v. Gaskins, No. A–

1157-13 (App. Div. April 26, 2016), and the Supreme Court denied defendant's

petition for certification. State v. Gaskins, 227 N.J. 236 (2016). The facts

regarding the underlying offenses, and the issues raised on direct appeal are set

forth in our opinion and need not be repeated here.

Defendant filed a timely pro se PCR petition and a supplemental

certification with the assistance of assigned PCR counsel. In his pro se petition,

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defendant failed to answer the question requiring him to "state with specificity

the facts upon which the claim for relief is based, legal arguments and all

claims." In his supplemental certification, defendant claimed his "case was the

subject of many errors by the court during the pretrial process and . . . trial which

resulted" in his conviction. He further certified that he did not "present certain

facts during the trial, because the [State] fraudulently prevented [him] from

discovering them."

PCR counsel also filed a twenty-page brief in which he argued: 1)

defendant's claims were not procedurally barred under Rule 3:22; 2) trial counsel

was ineffective under the two-prong test set out in Strickland v. Washington,

466 U.S. 668 (1984); and 3) defendant was entitled to an evidentiary hearing.

PCR counsel's brief specifically incorporated defendant's statements contained

in his supplemental certification, and further argued that a "combination of

errors and ineffective assistance of counsel[,] and errors of the [c]ourt lay the

basis" for defendant's petition.

At oral argument, PCR counsel advised the court that the statements in

defendant's supplemental certification were based upon information provided by

defendant, and restated that trial counsel failed to introduce "testimony and

facts" on defendant's behalf and "didn't forcefully enough attempt to bring out

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these facts." PCR counsel also represented that defendant maintained the State

fraudulently prevented him from discovering facts. After the court noted that

there was "nothing specific asserted as to that allegation of fraud," PCR counsel

consulted with defendant, who then articulated an "issue of fraud" relating to

the original judgment of conviction's reference to a "count seven." The PCR

court addressed defendant's concern by noting a Change of Judgment of

Conviction was entered to correct the inadvertent reference to a count seven

because only six counts were charged in the indictment.

After hearing oral arguments, the court denied defendant's petition in a

February 21, 2018 order. In the court's oral decision rendered that day, the PCR

judge found that the Change of Judgment of Conviction adequately "address[ed]

the [c]ount [s]even question" as it related to defendant's fraud allegation and the

petition otherwise was "lacking in any specificity with regard to any [claim] of

ineffective performance by trial counsel." On appeal, defendant raises the

following issue:

POINT I

DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF POST-CONVICTION RELIEF
COUNSEL.

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 Defendant urges us to reverse the February 21, 2018 order and remand his

petition to the PCR judge for the assignment of a "newly assigned competent

PCR [c]ounsel." Like his claims against trial counsel, however, defendant has

not supported his claims against PCR counsel with a sworn statement "alleg[ing]

facts sufficient to demonstrate counsel's alleged substandard performance." See

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Nor has

defendant specifically challenged the PCR judge's findings.

This appeal, nevertheless, requires us to apply two standards. The first

governs claims of ineffective assistance of trial counsel, and the second controls

claims against PCR counsel. We briefly discuss these two, slightly different

standards.

The principles governing our analysis of ineffective assistance of trial

counsel are well settled. A defendant who files a PCR petition must establish,

by a preponderance of the credible evidence, entitlement to the requested relief.

State v. Preciose, 129 N.J. 451, 459 (1992). To carry that burden, a defendant

must allege and articulate specific facts, which "provide the court with an

adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565,

579 (1992).

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 The mere assertion of a PCR claim does not entitle a defendant to an

evidentiary hearing. Cummings, 321 N.J. Super. at 170. To establish a prima

facie claim of ineffective assistance of counsel, the defendant must demonstrate

a reasonable likelihood of success under the two-prong test set forth in

Strickland v. Washington, 466 U.S. 668 (1984). That is, the defendant must

show: (1) the deficiency of his counsel's performance; and (2) prejudice to his

defense. Id. at 687; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the

Strickland two-pronged analysis in New Jersey) (Strickland/Fritz test). "[I]n

order to establish a prima facie claim, [the defendant] must do more than make

bald assertions that he was denied the effective assistance of counsel. He must

allege facts sufficient to demonstrate counsel's alleged substandard

performance." Cummings, 321 N.J. Super. at 170.

Under the first prong of the Strickland/Fritz test, a petitioner "must show

that counsel's performance was deficient." Strickland, 466 U.S. at 687. 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, 466 U.S. at 687–88; Fritz, 105 N.J. at 52, 60–61. The second prong

requires a defendant to show that the defect in counsel's performance so

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"prejudiced defendant's rights to a fair trial" that there is a "reasonable

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

proceeding would have been different." Strickland, 466 U.S. at 694.

Employing this standard, we are satisfied from our review of the record

that defendant failed to make a prima facie showing of ineffectiveness of trial

counsel within the Strickland/Fritz test. We affirm for the reasons stated by the

PCR judge in his well-reasoned oral decision.

We next address defendant's claim that he was denied the 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).

We determined in Hicks the defendant had failed to receive the benefit of

the attorney's expertise, in part because the attorney limited his performance to

representing the arguments the defendant included in his own pro se petition.

Id. at 374. In addition, there was no evidence he conducted an independent

evaluation of defendant's case to determine whether there were other grounds to

attack defendant's conviction, and there were indications PCR counsel had not

even reviewed the file, based on comments to the court in oral argument that

betrayed ignorance of the essential facts of the underlying case. Ibid. We

remanded for a new PCR proceeding. Id. at 375.

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

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

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support." Webster, 187 N.J. at 257. With this standard in mind, we consider

defendant's arguments as they pertain to his assigned PCR counsel.

Defendant faults PCR counsel for failing to argue at oral argument, and

failing to provide the PCR court "with [any] specifics, whatsoever, to support

[defendant's] claims." He also argues that PCR counsel "failed to counsel . . .

[him] adequately with respect to the supplemental [c]ertification," resulting in

the preparation of a certification that "fails to state with specificity the

[d]efendant's claims." According to defendant, "PCR counsel's failure to submit

anything to support the allegations" resulted in his petition for PCR "being

wrongfully denied." Finally, defendant maintains PCR counsel should have

prepared an amended petition "set[ting] forth the issues with specificity," and

having not done so, "PCR counsel undoubtedly doomed his . . . case."

Unlike in Hicks, where it was apparent that PCR counsel had failed to

meet his obligations, we cannot conclude on the record before us that PCR

counsel failed to discharge his proper responsibilities and that a remand for a

new hearing is required. For example, it is clear from defendant's participation

in oral argument, and counsel's representations, that PCR counsel reviewed the

file, and consulted with his client. In this regard, defendant concedes on appeal

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that his supplemental certification "was prepared with PCR [c]ounsel's

guidance" as "PCR [c]ounsel's name and address are on the [c]ertification."

Further, on appeal defendant has not alleged with even the slightest degree

of specificity what other meritorious issues PCR counsel could, or should have,

raised. He has not claimed PCR counsel failed to communicate with him, or

failed to investigate any claims against trial counsel "urged by" defendant. See

Webster, 187 N.J. at 257. Most importantly, defendant has failed to even allege,

must less certify, what specific information PCR counsel should have included

in his supplemental certification, or any amended petition.

By failing to identify specifically what his supplemental certification

should have contained, defendant has not demonstrated that PCR counsel failed

to develop a "legitimate argument[] that the record will support." See ibid. It

thus cannot be said that the issues raised, or not raised, by PCR counsel were

the result of his failure to engage in a reasonable investigation and effort, or

instead whether the record simply failed to support a valid claim of ineffective

assistance of trial counsel.

Consequently, we discern no violation of the dictates of Rue, 175 N.J. at

4. We therefore conclude that defendant has failed to assert a cognizable cl aim

of inadequate performance by PCR counsel under the Hicks test.

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Affirmed.

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