NOT FOR PUBLICATION WITHOUT THE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-4694-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAWN LOYAL, a/k/a
TASHAWN BENNET, TESHAWN
BENNET, TASHAWN BENNETT,
TAHIR HOSKING, OMAR
LAKEWOOLKE, ALEQUAN
LOYAL, ALQUIRE LOYAL,
ALQUVRE LOYAL, FAREEM
SMITH, JAMES SMITH,
TASHAWN R. SMITH, and
TASHAWN WALLACE,
Defendant-Appellant.
_______________________________
Submitted September 26, 2018 - Decided October 12, 2018
Before Judges Fuentes and Accurso.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 10-05-0493.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the brief).
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Izabella M.
Wozniak, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Shawn Loyal appeals from the denial of his petition for post-
conviction relief (PCR), contending he established a prima facie case of
ineffective assistance of counsel requiring an evidentiary hearing. Because the
trial judge correctly determined the evidence insufficient to sustain defendant's
burden, we affirm.
A jury convicted defendant of second-degree eluding, N.J.S.A. 2C:29-
2(b); two counts of second-degree aggravated assault causing bodily injury
during the course of eluding, N.J.S.A. 2C:12-1(b)(6); second-degree aggravated
assault causing serious bodily injury, N.J.S.A. 2C:12-1(b)(1); fourth-degree
assault by auto causing serious bodily injury, N.J.S.A. 2C:12-1(c)(1); third-
degree receiving stolen property, N.J.S.A. 2C:20-7; third-degree aggravated
assault of a police officer, N.J.S.A. 2C:12-1(b)(5); fourth-degree resisting arrest
by flight, N.J.S.A. 2C:29-2(a)(2); third-degree hindering apprehension, N.J.S.A.
2C:29-3(b)(4); and fourth-degree hindering apprehension, N.J.S.A. 2C:29-
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2
3(b)(4). The judge granted the State's motion for a discretionary extended term
pursuant to N.J.S.A. 2C:44-3(a) on one of the two counts of second-degree
aggravated assault in the course of eluding and, following appropriate mergers,
sentenced defendant to an aggregate term of twenty-eight years in State prison,
twenty-five of which are subject to an eighty-five percent period of parole
ineligibility, and three years of parole supervision. We affirmed defendant's
conviction on direct appeal, State v. Loyal, No. A-1085-11 (App. Div. Oct. 30,
2014) (slip op. at 2). No petition for certification appears to have been filed.
Defendant's arrest and conviction arose out of a high speed chase in a
stolen car. Id. at 3. He led police through Elizabeth at speeds of up to seventy
miles an hour before running a red light and broadsiding a taxicab, injuring both
the cabbie and his passenger. Ibid. The pursuing officers identified defendant
as the driver and testified he was alone in the car. Id. at 3-4. As the police
caught up to defendant after the crash, he was trying to get out the driver's side
door. Id. at 3. The officers maneuvered their patrol car alongside the driver's
door, pinning it shut. Id. at 3-4. The officers testified defendant climbed across
the front seat, jumped out the passenger side door and ran until he was tackled
and subdued by the officers. Id. at 4.
A-4694-16T4
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Defendant testified in his own defense. He claimed he was an unwitting
passenger in the car, having accepted a ride from an old school acquaintance he
had not seen in many years and whose last name he did not know. Id. at 4.
Defendant claimed he tried to get the driver to pull over after he accelerated
away from the police, and tried to remove the keys from the ignition without
success. Ibid. He further insisted he was knocked unconscious in the crash and
awoke to find the driver gone and the officers pulling him out of the car,
punching him and claiming he was the driver. Ibid. Supporting the defense
theory that defendant was only a passenger in the car, defendant's counsel
pointed to evidence in the record that the passenger side air bag deployed in the
crash. Id. at 5. But because defendant did not present an expert, "[t]he court
ruled that defense counsel could question witnesses about the deployment of the
passenger-side airbag and comment about it in argument to the jury but could
not speculate as to the reason it had deployed." Ibid.
Defendant raised six issues on appeal, including the insufficiency of the
identification testimony, the State's failure to investigate and apprehend the true
culprit, the court's "suppress[ion] [of] evidence of and comment about the
deployment of the front seat passenger air bag from which the jury could have
logically inferred that he was the front seat passenger and not the driver," and
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that cumulative error denied him a fair trial. Id. at 6-8. We rejected each of
those arguments. Id. at 8.
In his amended PCR petition, defendant claimed his trial counsel was
ineffective by failing to hire experts to testify about the car's air bag deployment
system, fingerprint analysis of the steering wheel and DNA recovered from the
passenger side air bag to prove he was not the driver. He further claimed
appellate counsel was ineffective for failing to raise an excessive sentence claim.
After hearing argument by assigned counsel, Judge Mega, who also
presided over defendant's trial and sentencing, issued a comprehensive written
opinion denying the petition on the basis that defendant had failed to establish a
prima facie claim for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992).
First addressing defendant's claim regarding his counsel's failure to call experts,
the judge noted defendant was convicted based on the testimony of the officers
as to what they saw, not physical proof of defendant's identity. The officers
testified they never lost sight of the car from the moment they attempted to pull
it over until after the crash, and that defendant was the only person to ever get
out.
The judge found that because defendant made no effort to assert the facts
on which the experts he claims would have exonerated him would have based
A-4694-16T4
5
their opinions, his claims remained only bald assertions, insufficient to establish
a prima facie case of ineffective assistance. See State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999) (noting a petitioner claiming his attorney
inadequately investigated facts necessary to support his defense, "must assert
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").
Judge Mega also rejected defendant's claim that his appellate counsel was
ineffective for failing to assert an excessive sentence argument , observing
defendant's failure to explain how that argument would have been successful on
appeal. The judge noted defendant's acknowledgment that he was sentenced
within the range permitted by law and his failure to establish either that the
aggravating factors lacked competent, credible evidence in the record or that
notwithstanding proper application of the sentencing guidelines, the sentence
shocks the judicial conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984).
On this appeal defendant raises the following arguments:
POINT I
AS DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL, HE WAS ENTITLED
TO POST-CONVICTION RELIEF.
A-4694-16T4
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POINT II
APPELLATE COUNSEL FAILED TO RAISE THE
ISSUE WHETHER DEFENDANT'S SENTENCE
WAS EXCESSIVE.
POINT III
AS THERE ARE GENUINE ISSUES OF MATERIAL
FACTS IN DISPUTE, AN EVIDENTIARY HEARING
WAS REQUIRED.
POINT IV
PCR COUNSEL WAS INEFFECTIVE FOR FAILING
TO ARGUE THAT TRIAL COUNSEL NEGLECTED
TO INVESTIGATE DEFENDANT'S ALIBI
WITNESS (NOT RAISED BELOW).
To succeed on a claim of ineffective assistance, defendant must establish,
first, that "counsel's representation fell below an objective standard of
reasonableness" and, second, that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). A
defendant must do more than demonstrate that an alleged error might have "had
some conceivable effect on the outcome of the trial," State v. Sheika, 337 N.J.
Super. 228, 242 (App. Div. 2001), instead, he must prove the error is so serious
as to undermine the court's confidence that the "defendant's trial was fair, and
that the jury properly convicted him." State v. Pierre, 223 N.J. 560, 588 (2015).
A-4694-16T4
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Measured by that standard, defendant has not established that he received
ineffective assistance of counsel on this record.
We agree with Judge Mega that defendant's claims of ineffectiveness of
his trial counsel fail because he presented absolutely no evidence as to what an
engineering, DNA or fingerprint expert could or would have opined and on the
basis of what facts. Defendant's assertions as to what such experts might have
testified to at trial are thus only speculation and insufficient to prove that
counsel's failure to call experts materially contributed to his conviction. See
State v. Jones, 219 N.J. 298, 311 (2014).
As to appellate counsel's failure to have raised an excessive sentence
argument, it is well established that appellate counsel need not advance every
argument a defendant urges, even if non-frivolous. Jones v. Barnes, 463 U.S.
745, 750-54 (1983). Moreover, having reviewed the sentencing transcript, we
are convinced any such argument would have been unavailing. Defendant was
twenty-five years old and a fugitive from the Intensive Supervision Program
when he committed the crimes for which he was sentenced. As Judge Mega
explained in meticulous detail at the time of sentencing, defendant had an
extensive juvenile record and at least six prior convictions for indictable
offenses as an adult, including convictions for narcotics distribution, unlawful
A-4694-16T4
8
possession of a weapon, theft offenses and aggravated assault of a police officer.
He had already been sentenced to six prior State prison terms, and had two ISP
or parole violations, two probation terms and two violations of probation on his
record. Judge Mega carefully explained his reasons for imposing a discretionary
extended term, discussing each factor at length, as well as why consecutive
sentences were warranted under State v. Yarbough, 100 N.J. 627, 643-44 (1985).
As Judge Mega's careful findings and balancing of the aggravating and
mitigating factors were supported by adequate evidence in the record, and the
sentence he imposed was neither inconsistent with sentencing provisions of the
Code of Criminal Justice nor shocking to the judicial conscience, see State v.
Fuentes, 217 N.J. 57, 70 (2014), appellate counsel's failure to argue an excessive
sentence claim could not be deemed to constitute ineffective assistance. See
State v. Gaither, 396 N.J. Super. 508, 514 (App. Div. 2007).
Finally, we reject defendant's argument that his PCR counsel was
ineffective by failing to argue trial counsel's ineffectiveness for failing to locate
the old school acquaintance defendant claimed drove the car that broadsided the
taxicab. Defendant has failed to present any competent evidence that the
acquaintance, whom defendant claimed he had not seen since he was nine years
old and whose last name he did not know, even existed, much less could be
A-4694-16T4
9
found and would admit that he and not defendant was the driver. Thus,
defendant cannot show that PCR counsel's performance was deficient or that
there is a reasonable probability that but for counsel's errors, the result of the
PCR proceeding would have been different. See Strickland, 466 U.S. at 687-88,
694.
Affirmed.
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