NOT FOR PUBLICATION WITHOUT THE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-4513-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
L.K.,
Defendant-Appellant.
_______________________
Submitted March 25, 2020 – Decided April 15, 2020
Before Judges Koblitz and Whipple.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 11-05-0554
and 11-03-0291.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Michele C. Buckley, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant L.K.1 appeals from a February 14, 2018 order denying his first
petition for post-conviction relief (PCR) without an evidentiary hearing.
Defendant raises the following issue on appeal:
POINT I: [L.K.] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR FAILING TO
INVESTIGATE.
We disagree and affirm. 2
We incorporate herein the facts and procedural history set forth in State
v. L.K., No. A-6001-12 (App. Div. Feb. 5, 2016) (slip op. at 2-5), certif. denied,
225 N.J. 339 (2016), where we affirmed defendant's convictions following a jury
trial and subsequent guilty pleas, as well as the imposition of an aggregate
sixteen-year sentence, with an eighty-five percent parole ineligibility.
Defendant was convicted after trial of various violent crimes against his wife:
1) second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); 2) third-degree
1
We use initials as we did in defendant's direct appeal to protect the identity of
the victim of domestic violence. R. 1:38-3(c)(12).
2
We are disappointed that the State's responsive letter brief prematurely ended
the procedural history at defendant's 2013 direct appeal and mentioned a ground
for relief not urged by defendant, referencing pages eight to fourteen of
defendant's ten-page brief. We expect the State to devote more attention to its
submissions.
A-4513-17T3
2
aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); 3) second-
degree attempting to inflict bodily injury on another in the course of a burglary,
N.J.S.A. 2C:18-2; 4) third-degree possession of a knife with an unlawful
purpose to use it against a person, N.J.S.A. 2C:39-4(d); and 5) fourth-degree
unlawful possession of a knife, N.J.S.A. 2C:39-5(d). After trial, defendant
entered a guilty plea to third-degree terroristic threats, N.J.S.A. 2C:12-3(b), and
fourth-degree criminal contempt of a restraining order, N.J.S.A. 2C:29-9(b).
Defendant's sole claim in this appeal is that his trial counsel was
ineffective in not thoroughly investigating the facts. Defendant does not state
what would have been discovered through further investigation. The PCR judge
was also the trial judge. He reviewed the trial evidence before rejecting
defendant's claim as speculative and non-specific.
Merely raising a claim for PCR does not entitle a defendant to relief or an
evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div. 1999). "[W]hen a petitioner claims his trial attorney inadequately
investigated his case, he 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." State v. Porter,
216 N.J. 343, 353 (2013) (alteration in original) (quoting Cummings, 321 N.J.
A-4513-17T3
3
Super. at 170). Trial courts should grant evidentiary hearings only if the
defendant has presented a prima facie claim of ineffective assistance of counsel
(IAC), material issues of disputed fact lie outside the record, and resolution of
those issues necessitates a hearing. Id. at 355; R. 3:22-10(b). A PCR court
deciding whether to grant an evidentiary hearing "should view the facts in the
light most favorable to a defendant." State v. Preciose, 129 N.J. 451, 463 (1992).
However, "[a] court shall not grant an evidentiary hearing" if "the defendant's
allegations are too vague, conclusory or speculative." R. 3:22-10(e)(2). Indeed,
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.
In turn, "we review under the abuse of discretion standard the PCR court's
determination to proceed without an evidentiary hearing." State v. Brewster,
429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding
an evidentiary hearing will not aid the court's analysis of whether the defend ant
is entitled to [PCR], . . . then an evidentiary hearing need not be granted." Ibid.
(alteration in original) (quoting State v. Marshall, 148 N.J. 89, 158 (1997)). We
also typically review a PCR petition with "deference to the trial court's factual
findings . . . 'when supported by adequate, substantial and credible evidence.'"
A-4513-17T3
4
State v. Harris, 181 N.J. 391, 415 (2004) (alteration in original) (quoting Toll
Bros., Inc., v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). However, where,
as here, "no evidentiary hearing has been held, we 'may exercise de novo review
over the factual inferences drawn from the documentary record by the [PCR
judge].'" State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010)
(alteration in original) (quoting Harris, 181 N.J. at 421).
To establish a prima facie claim of IAC, a defendant must satisfy the two-
prong Strickland3 test, and "bears the burden of proving" both prongs "by a
preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012). A
defendant must show that l) "counsel's performance was deficient" and he or she
"made errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment" to the United States Constitution; and
2) "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
687, 694; see also State v. Fritz, 105 N.J. 42, 52 (1987). A reasonable
probability is defined as "a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694.
3
Strickland v. Washington, 466 U.S. 668 (1984).
A-4513-17T3
5
Under the first Strickland prong, "a defendant must overcome a 'strong
presumption' that counsel exercised 'reasonable professional judgment' and
'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J.
123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). Indeed, "counsel is
strongly presumed to have rendered adequate assistance," Strickland, 466 U.S.
at 690, as measured by a standard of "reasonable competence," Fritz, 105 N.J.
at 53. "Judicial scrutiny of counsel's performance must be highly deferential."
Strickland, 466 U.S. at 689.
Under the second Strickland prong, defendant must prove prejudice.
Fritz, 105 N.J. at 52. "An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment." Strickland, 466 U.S. at 691. This prong "is an
exacting standard: '[t]he error committed must be so serious as to undermine the
court's confidence in the jury's verdict or the result reached.'" State v. Allegro,
193 N.J. 352, 367 (2008) (alteration in original) (quoting Castagna, 187 N.J. at
315).
Applying these principles, after de novo review, we are satisfied
defendant failed to make a prima facie showing of IAC under the Strickland test,
A-4513-17T3
6
and we discern no abuse of discretion in the judge's denial of defendant's PCR
petition without an evidentiary hearing.
Affirmed.
A-4513-17T3
7