STATE OF NEW JERSEY VS. KEITH KENION(04-02-0178, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-1883-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH M. KENION,

Defendant-Appellant.

________________________________

Submitted October 17, 2017 – Decided November 27, 2017

Before Judges Yannotti and Mawla.

On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 04-02-0178.

Joseph E. Krakora, Public Defender, attorney
for appellant (Laura B. Lasota, Assistant
Deputy Public Defender, of counsel and on the
brief).

Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen
C. Sayer, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant Keith M. Kenion appeals from a September 22, 2014

order entered by the Law Division, which denied his petition for

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

affirm.

I.

Defendant was tried and found guilty by a jury of two counts

of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1), two counts of

third-degree criminal restraint, N.J.S.A. 2C:13-2(a), two counts

of first-degree robbery, N.J.S.A. 2C:15-1(a)(1), one count of

first-degree conspiracy, N.J.S.A. 2C:5-2, one count of second-

degree burglary, N.J.S.A. 2C:18-2, one count of second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1), and two counts of

third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7).

The trial court sentenced defendant to an aggregate term of

life in prison, subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. On appeal, we affirmed defendant's

convictions, but remanded the matter to the trial court for

resentencing with regard to the extended term. State v. Kenion,

No. A-5665-05 (App. Div. July 13, 2009) (slip op. at 41-42). On

remand, the trial court again sentenced defendant to life in

prison, subject to NERA. The Supreme Court denied defendant's

petition for certification. Thereafter, defendant filed his PCR

petition, which was denied.

2 A-1883-14T4
 We summarize the facts underlying defendant's conviction,

which were set forth in greater detail in our opinion on

defendant's direct appeal from his conviction. On September 8,

2003, defendant and co-defendant Wayne Parker entered the home of

Anthony and Carolyn Young, then ages 81 and 80, respectively.

Defendant struck Mr. Young in the head with ceramic household

objects and compelled Mr. Young to show him the location of a coin

collection he maintained. Defendant then bound and gagged Mr.

Young.

Parker assaulted Mrs. Young and forced her to open a safe and

locked drawers containing coins and other valuables, which were

removed, and then bound her with ripped clothing. A third

accomplice, John Palmer, appeared and helped remove the valuables

from the residence. Defendant, Parker, and Palmer fled when

someone came to the residence and rang the doorbell. Mrs. Young

untied herself and untied and removed the gag from Mr. Young, who

was unresponsive.

Mrs. Young spent a week in the hospital recovering from her

injuries. In our previous opinion, we described Mr. Young's

condition as follows:

Mr. Young was diagnosed with blunt force
trauma to the head, multiple facial fractures
and severe swelling. Doctors deemed him unfit
for surgery due to his pre-existing medical
condition. As a result, his injuries are

3 A-1883-14T4
 unlikely to heal or to heal well. His . . .
injuries created a substantial risk of death
and of serious impairment of his ability to
eat solid foods.

[Kenion, supra, No. A-5665-05, (slip op. at
n. 6).]

Mrs. Young gave a description of the assailants and

specifically naming Parker. Police interviewed Parker's

girlfriend and obtained search warrants for her vehicle and home,

where they recovered objects taken from the Young residence.

Police also obtained and executed a search warrant for the

residence occupied by Parker. While doing so, police observed

Palmer and two individuals drive by the residence twice. Police

stopped the vehicle. Detective Francine Webb and another officer

recovered coins belonging to the Youngs from Palmer, who was

operating the vehicle. After police secured Palmer in their

vehicle, they returned to the vehicle Palmer had been operating,

and removed defendant. They discovered more currency and coins

belonging to the Youngs on the back seat and floor of the vehicle

next to defendant.

Detective Webb asked defendant "[A]re you Keith[?]" and

defendant responded "[Y]es. I'm from North Carolina. I'm Keith

Kenion." After defendant was removed from the vehicle, a pat down

by another officer yielded more coins belonging to the Youngs.

Defendant was thereafter tried, convicted, and sentenced.

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 Defendant's counsel raises the following arguments on appeal

from denial of his PCR petition:

POINT I – BECAUSE DEFENDANT ESTABLISHED A
PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF
COUNSEL, AN EVIDENTIARY HEARING WAS REQUIRED.

POINT II – THE MATTER SHOULD BE REMANDED FOR
A PCR HEARING REGARDING DEFENDANT'S PRO SE
ALLEGATIONS WHICH WERE NOT PROPERLY DEVELOPED
IN PCR COUNSEL'S SUPPORTING BRIEF OR ARGUMENT.

POINT III – A REMAND IS REQUIRED AS THE PCR
COURT FAILED TO ADEQUATELY CONSIDER AND RULE
UPON ALL OF DEFENDANT'S POST-CONVICTION RELIEF
CLAIMS.

In his pro se brief, defendant raises the following arguments:

POINT I – INEFFECTIVE ASSISTANCE WHEN TRIAL
COUNSEL ILLEGALLY FILED APPELLANT'S PRETRIAL
SUPPRESSION MOTION PRO SE WHILE APPELLANT WAS
REPRESENTED BY COUNSEL.

POINT II – INEFFECTIVE ASSISTANCE WHEN COUNSEL
FAILED TO LITIGATE A MERITORIOUS FOURTH
AMENDMENT CLAIM OF INVALID[LY] ISSUE[D]
COMPLAINT WARRANTS.

POINT III – THE STATE DID NOT [PROVE] ALL OF
THE ELEMENTS OF KIDNAPPING BEYOND A REASONABLE
DOUBT.

POINT IV – INEFFECTIVE ASSISTANCE WHEN TRIAL
COUNSEL ILLEGALLY FILED APPELLANT'S PRETRIAL
SUPPRESSION MOTION [PRO SE] WHILE APPELLANT
WAS REPRESENTED BY COUNSEL.

POINT V – THE PCR COURT ERRED, BY USING
[N.J.S.A. 2C:13-1(b)(2)] KIDNAPPING CHARGE,
THAT THE APPELLANT WAS FOUND NOT GUILTY OF TO
UPHOLD THE WRONGFUL CONVICTION OF KIDNAPPING
UNDER [N.J.S.A. 2C:13-1(b)(1)] VIOLATING []
DUE PROCESS OF LAW, U.S. CONST. AMEND. XIV.

5 A-1883-14T4
 II.

The PCR process affords an adjudged criminal defendant a

"last chance to challenge the 'fairness and reliability of a

criminal verdict[.']" State v. Nash, 212 N.J. 518, 540 (2013);

see also R. 3:22-1. As to our standard of review, "where the

[PCR] court does not hold an evidentiary hearing, we may exercise

de novo review over the factual inferences the trial court has

drawn from the documentary record." State v. O'Donnell, 435 N.J.

Super. 351, 373 (App. Div. 2014) (citing State v. Harris, 181 N.J.

391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973,

162 L. Ed. 2d 898 (2005)).

"Post-conviction relief is neither a substitute for direct

appeal, [Rule] 3:22-3, nor an opportunity to relitigate cases

already decided on the merits, [Rule] 3:22-5." State v. Preciose,

129 N.J. 451, 459 (1992).

Consequently, petitioners may be procedurally
barred from post-conviction relief under Rule
3:22-4 if they could have, but did not, raise
the claim in a prior proceeding, unless they
satisfy one of the following exceptions:

(a) that the ground for relief not
previously asserted could not
reasonably have been raised in any
prior proceeding; or (b) that
enforcement of the bar would result
in fundamental injustice; or (c)
that denial of relief would be
contrary to the Constitution of the

6 A-1883-14T4
 United States or the State of New
Jersey.

[Ibid.]

In order to establish ineffective assistance of counsel,

defendant must satisfy the two-prong test set forth in Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.

2d 674, 693 (1984), and adopted by our Supreme Court in State v.

Fritz, 105 N.J. 42, 58 (1987). Defendant must show: (1) "counsel's

performance was deficient[,]" which requires defendant to prove

"counsel made errors so serious that counsel was not functioning

as the 'counsel' guaranteed the defendant by the Sixth Amendment"

and (2) "the deficient performance prejudiced the defendant"

because "counsel's errors were so serious as to deprive defendant

of a fair trial[.]" Fritz, supra, 105 N.J. at 52 (quoting

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

2d at 693).

III.

In his counseled brief, defendant contends trial counsel was

ineffective because he failed to conduct an adequate investigation

of the case. Specifically, he asserts trial counsel should have

obtained a medical expert to testify about the victims' injuries.

In order for a defendant to establish a prima facie case for

PCR, that defendant "must do more than make bald assertions that

7 A-1883-14T4
he was denied the effective assistance of counsel. He must allege

facts sufficient to demonstrate counsel's alleged substandard

performance." State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div.), certif. denied, 162 N.J. 199 (1999).

The PCR court found defendant's arguments to be without merit.

We agree. Defendant failed to provide an expert report

demonstrating what an expert would have stated regarding the

victims' injuries. Moreover, defendant failed to demonstrate

prejudice. Defendant has made no showing of how a more thorough

investigation of the case or the testimony of a medical expert

would have led to a different result. Thus, we reject defendant's

arguments regarding ineffective assistance of counsel.

IV.

Defendant argues his PCR counsel failed to adequately

investigate or substantiate the claims made by defendant in his

pro se petition. We disagree and find this argument to be without

merit.

Rule 3:22-6(d) states in relevant part: "Counsel should

advance all of the legitimate arguments requested by the defendant

that the record will support." Therefore, counsel is obliged "to

communicate with his client and investigate the claims." State

v. Rue, 175 N.J. 1, 18 (2002). "Thereafter, counsel should advance

all legitimate arguments that the record will support. If after

8 A-1883-14T4
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." State v. Hicks, 411 N.J. Super. 370,

375 (App. Div. 2010) (quoting State v. Webster, 187 N.J. 254, 257

(2006)).

Under such circumstances, "[i]f after reviewing the pro se

petition and brief counsel is satisfied that no further argument

or elaboration is required, counsel must so certify to the

reviewing court." Hicks, supra, 411 N.J. Super. at 377. PCR

counsel is not required to present expository argument on these

points, but rather "may choose to stand on [his brief] at the

hearing[.]" Webster, supra, 187 N.J. at 257 (quoting Rue, supra,

175 N.J. at 19).

Here, PCR counsel adequately addressed the arguments made by

defendant in his pro se brief. PCR counsel substantiated

defendant's meritorious arguments, and set forth the remaining

arguments. Moreover, PCR counsel verified he had spoken to

defendant about his case and the contents of his pro se brief, and

confirmed the court had received defendant's pro se brief.

Therefore, we reject defendant's argument that PCR counsel failed

to adequately investigate or substantiate the claims made by

defendant in his pro se petition.

9 A-1883-14T4
 V.

Defendant argues a remand is required because the PCR court

failed to adequately consider and rule upon all of his PCR claims.

We disagree.

Defendant contends trial counsel was ineffective for failing

to file the appropriate motion to have the indictment dismissed

as a result of the State's failure to provide the grand jury with

exculpatory medical reports. There is no evidence to suggest any

medical reports possessed by the State would have exculpated

defendant if presented to the grand jury. This argument lacks

sufficient merit to warrant further discussion. R. 2:11-

3(e)(1)(E).

Defendant argues trial counsel was ineffective for failing

to call as witnesses the doctors who examined the victims and

possessed exculpatory and impeaching evidence. The PCR court

indicated there was no evidence that any expert witness existed

who was capable of providing any exculpatory or impeaching

evidence. We agree. This too is a bald assertion, which lacks

merit. R. 2:11-3(e)(1)(E).

Defendant argues his trial and appellate counsel were

ineffective for failing to challenge the State's facts on the

kidnapping charge. He asserted his trial counsel failed to address

his claim that the victims were not bound and were therefore able

10 A-1883-14T4
to leave. The PCR court noted the evidence presented at trial and

accepted by the jury established that Mrs. Young was in fact bound.

The PCR court found "[t]here's no evidence that's been presented

here that indicates that the individual victims were free to leave

at any time during the commission of this offense."

We agree with the PCR court's finding. Defendant's brief and

the record are devoid of objective evidence his counsel could

present to the jury or on appeal that the victims were not bound.

Defendant offers no objective evidence to counter the testimony

and evidence presented by the State at trial that his victims were

indeed assaulted and bound after they were made to disclose the

location of their valuables. Defendant has not demonstrated a

prima facie case of ineffective counsel to support this claim.

Moreover, this claim is barred by Rule 3:22-4, as defendant had

the opportunity to present it at trial and on appeal, but failed

to do so.

Defendant asserts the trial court erred in denying defense

counsel's motion to remove a juror. Specifically, during the

trial it was revealed that a juror's daughter had been assaulted.

This argument is barred by Rule 3:22-4 because defendant did not

raise it on appeal. Moreover, defendant's brief is devoid of an

argument substantiating this claim. Therefore, it lacks merit.

R. 2:11-3(e)(1)(E).

11 A-1883-14T4
 Defendant argues his trial counsel was ineffective because

he failed to challenge the introduction of certain allegedly

prejudicial testimony at trial. Specifically, defendant asserts

he was prejudiced by Mrs. Young's testimony that she had been

sexually assaulted by Parker. Defendant also argues he was

prejudiced because defense counsel did not challenge the testimony

of the State's expert medical witness that Mr. Young could not

have surgery because of his advanced age. Defendant claims this

testimony deprived him of a fair trial. Defendant also argues his

appellate counsel was ineffective for failing to raise these

arguments on appeal.

We reject defendant's claim the testimony regarding the

sexual assault was prejudicial because it was raised on appeal and

adjudicated. Indeed, we stated:

The jury knew from the beginning of the trial
that there might be some evidence of a sexual
assault. Moreover, the record strongly
suggests that Mrs. Young became confused
during cross-examination or simply
misunderstood the questions posed by defense
counsel. The judge forcefully informed the
jury defendant was not charged with that
offense[.]

[Kenion, supra, slip op. at 28; R. 3:22-5.]

The PCR court found the submission of an expert report

unavailing because the report pertained to Mrs. Young's injuries

and did not address the severity of the injuries suffered by Mr.

12 A-1883-14T4
Young. The PCR court also found that the defense strategy not to

challenge the State's expert as to the injuries suffered by Mr.

Young sound because doing so "would tend to actually hurt the

defense by focusing on the injuries of these individuals at the

time of trial."

We agree. We also decline to revisit our assessment of this

argument because we have already addressed it on appeal. Kenion,

supra, slip op. at 27; R. 3:22-5.

Defendant also asserts his trial counsel was ineffective

because counsel did not request a lesser-included charge for third-

degree aggravated assault be considered by the jury. The PCR

court found "there had been no information submitted that would

cause the court to question the degree that the jury convicted

defendant on, particularly with regard to the aggravated assault

and kidnaping charges." We agree. Defendant's arguments on this

issue lack sufficient merit to warrant further comment. R. 2:11-

3(e)(2).

Defendant's PCR petition also asserted his trial counsel was

ineffective because he failed to object to the trial court's jury

instruction on accomplice liability after the jury informed the

trial court it did not understand the charge. We addressed this

argument on appeal and concluded the jury instruction was proper.

13 A-1883-14T4
Kenion, supra, slip op. at 37-38. Therefore, defendant's claim

is barred by Rule 3:22-5.

Defendant also argues his trial counsel was ineffective

because he failed to argue against the trial court's imposition

of an extended term as a part of the sentence. The PCR court

properly declined to address this argument pursuant to Rule 3:22-

5 because we already addressed defendant's sentence claims in the

first appeal. Kenion, supra, slip op. at 40-41. Notwithstanding

the procedural bar, the PCR court noted that although prosecutor

possesses sole discretion whether to seek an extended term,

"defense counsel did argue against the imposition of the extended

term." Defendant's argument on this issue lacks sufficient merit

to warrant further comment. R. 2:11-3(e)(2).

Defendant contends trial counsel was ineffective for failing

to request criminal records of the State's witnesses, failing to

object to expert testimony, and failing to object to the first-

degree robbery charges. He also argues trial counsel was

ineffective for failing to file a motion regarding Palmer's

allegedly contradictory testimony, failing to effectively cross-

examine the State's witness, and failing to address the alleged

inconsistences in the State's case regarding the kidnapping

charges, and appellate counsel was ineffective for failing to

raise these latter issues on direct appeal. Defendant fails to

14 A-1883-14T4
meet either prong of Strickland in asserting these arguments.

These contentions are neither substantiated by defendant in his

brief nor meritorious. R. 2:11-3(e)(1)(E).

We therefore reject defendant's contention that the PCR court

did not adequately address his claims. We further reject his

argument that a remand is required.

VI.

In his pro se brief on appeal, defendant argues his trial

counsel was ineffective because he permitted defendant to file a

pro se motion to suppress the evidence gathered from his arrest

as opposed to through defense counsel. Defendant also argues his

trial counsel was ineffective because he did not challenge the

statements of Detective Webb that the items taken from the victims

were found in plain view at the time of arrest. Defendant asserts

the Detective made different representations before and after the

arrest regarding how she discovered the stolen objects.

The PCR court found defendant demonstrated no prejudice as a

result of his trial counsel allowing him to file a pro se

suppression motion. Moreover, during the PCR hearing, the State

explained that Detective Webb could not have misrepresented the

truth to obtain a search warrant because "[w]hen she relayed

everything to the judge, she hadn't yet had the plain view

observation," which she later represented to the prosecutor.

15 A-1883-14T4
 We agree. Defendant has not presented any evidence the filing

of a pro se motion to suppress prejudiced him. At most, the motion

was fruitless because we rejected defendant's arguments regarding

the validity of the warrants in this matter. Kenion, supra, slip

op. at 38.

Defendant argues the State did not prove the elements of

kidnapping. He argues he was not found guilty of "inflict[ing]

bodily injury on or to terrorize the victim or another." N.J.S.A.

2C:13-1(b)(2). Defendant claims the PCR court incorrectly upheld

defendant's convictions on two counts of first-degree kidnapping

as a result. As the State noted during the PCR hearing, defendant

was indicted on both first- and second-degree kidnapping and

convicted on two counts of first-degree kidnapping. Defendant's

claim that this was somehow erroneous lacks merit and is

unsupported by the evidence in the record. The conviction

demonstrates the jury found defendant and his accomplices

committed bodily injury and terrorized both elderly victims.

Finally, defendant contends his trial counsel was ineffective

for failing to litigate a meritorious suppression motion related

to the validity of his arrest warrant, and for filing his pro se

motion to suppress related to Detective Webb's allegedly

inconsistent testimony to the grand jury. Defendant fails to meet

either prong of Strickland in asserting these arguments. These

16 A-1883-14T4
contentions lack sufficient merit to warrant discussion. R. 2:11-

3(e)(2).

Affirmed.

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