STATE OF NEW JERSEY VS. KEITH SCOTT (14-12-2033, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2281-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEITH SCOTT,
Defendant-Appellant.
_______________________
Submitted November 17, 2021 – Decided December 29, 2021
Before Judges Whipple and Geiger.
On appeal from the Superior Court of New Jersey,
Law Division, Hudson County, Indictment No. 14-12-
2033.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel,
on the brief).
Esther Suarez, Hudson County Prosecutor, attorney
for respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant, Keith Scott, appeals from the November 4, 2019 denial of his
petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm the denial of PCR for the reasons stated by Judge John Young in his
thorough written decision accompanying the order, but remand to correct the
judgment of conviction.
On December 3, 2014, defendant was indicted for second-degree
possession of a weapon for an unlawful purpose, second-degree unlawful
possession of a weapon, and second-degree certain persons not to have a
weapon. Prior to trial, the State dropped all counts in the indictment except
second-degree certain persons not to have a weapon. The case was tried
before a jury, and on June 9, 2016, the jury found defendant guilty of second -
degree certain persons not to have a weapon. Defendant was sentenced to
twelve years in New Jersey State Prison with a five-year parole disqualifier.
We rejected defendant's arguments on direct appeal. 1 On January 4,
2019, defendant filed his first timely pro se petition for PCR, which the court
denied. Defendant raises the following issues on appeal:
POINT ONE: THE PCR COURT ERRED IN
DENYING DEFENDANT AN EVIDENTIARY
HEARING AS TESTIMONY IS NEEDED
REGARDING TRIAL COUNSEL'S FAILURE TO
1
State v. Scott, No. A-1027-16 (App. Div. Jan. 17, 2018) (slip op. at 1).
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PROPERLY CROSS-EXAMINE POLICE
WITNESSES AND ESTABLISH A CHAIN OF
CUSTODY FOR THE HANDGUN.
POINT TWO: THE PCR COURT ERRED IN
DENYING DEFENDANT AN EVIDENTIARY
HEARING AS TESTIMONY IS NEEDED
REGARDING TRIAL COUNSEL'S FAILURE TO
REQUEST A JUDGMENT OF ACQUITTAL AT
THE CLOSE OF THE STATE'S CASE.
POINT THREE: THE PCR COURT ERRED IN
DENYING DEFENDANT AN EVIDENTIARY
HEARING AS TESTIMONY IS NEEDED
REGARDING TRIAL COUNSEL'S DECISION TO
WITHDRAW HIS MOTION FOR A NEW TRIAL.
POINT FOUR: THE PCR COURT ERRED IN
DENYING DEFENDANT AN EVIDENTIARY
REARING BECAUSE TESTIMONY IS NEEDED
REGARDING APPELLATE COUNSEL'S FAILURE
TO RAISE SENTENCING ISSUES ON APPEAL.
Because the facts and procedural history were discussed at length in our
prior opinion, State v. Scott, No. A-1027-16 (App. Div. Jan. 17, 2018) (slip op.
at 1-3), we only repeat what is essential for purposes of this appeal.
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-prong test established in Strickland v.
Washington, 466 U.S. 668 (1984). A defendant must show that (1) "counsel
made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment" of the United States
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Constitution, id. at 687, and (2) the defect in performance prejudiced rights to
a fair trial such "that there exists a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different," id. at 694; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting
the Strickland standard).
We give deference to the PCR court's factual findings on a PCR petition
"when supported by adequate, substantial and credible evidence." State v.
Harris, 181 N.J. 391, 415 (2004) (quoting Toll Bros., Inc. v. Twp. of West
Windsor, 173 N.J. 502, 549 (2002)). We give no deference to and are not
bound by the PCR court's legal conclusions, which we review do novo. Ibid.(citing Toll Bros., 173 N.J. at 549). "[F]or mixed questions of law and fact,
we give deference, under Rova Farms,[2] to the supported factual findings of
the trial court, but review de novo the [trial] court's application of any legal
rules to such factual findings." Id. at 416 (citing State v. Marshall, 148 N.J.
89, 185 (1997)).
Addressing defendant's first argument, Judge Young rejected the
assertion that trial counsel's failure to cross-examine the State's witnesses on
the chain of custody of the gun denied him the right to effective assistance of
2
Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974).
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counsel. The court concluded questioning on the chain of custody after the
retrieval of the gun from the defendant's person would not have uncovered any
new information about how the weapon first ended up on defendant, and
therefore would not have contributed to the theory of the gun being planted.
The theory that police officers planted the gun, one that the trial counsel
asserted throughout the trial, would not have been furthered by questioning on
the chain of custody and that additional speculation about the source of the gun
would not provide grounds for a successful ineffective assistance claim.
Judge Young also rejected defendant's second argument that his counsel
was ineffective when he failed to make a motion for judgment of acquittal
under State v. Reyes, 50 N.J. 454 (1967). The court found this omission
provided no basis to assert that trial counsel's performance fell below
reasonable, acceptable standards. Trial counsel is not required to argue that
the State failed to make a prima facie showing. With all of the favorable
inferences which could reasonably be drawn from the State's evidence, a
reasonable jury could have found petitioner guilty beyond a reasonable doubt
and that a motion for judgment of acquittal would have been fruitless.
Similarly, the court rejected defendant's ineffective assistance claim due
to trial counsel's withdrawal of a motion for a new trial. The court determined
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that the evidence in the trial record was sufficient to support the verdict of
guilt beyond a reasonable doubt, and certainly was not so lacking as to
suggest, clearly and convincingly, that there was a manifest denial of justice
under the law, and that defendant did not show the withdrawal of the new trial
motion prejudiced him or fell below acceptable standards of professional
conduct by trial counsel.
Finally, the court also rejected defendant's claim of ineffective assistance
for appellate counsel's failure to argue excessive sentencing. Defendant
argued that mitigating factors eight and nine, N.J.S.A. 2C:44-1(b)(8), (9),
ought to have been found by the trial court and should have been raised on
appeal.
Judge Young found the aggravating and mitigating factors were well
supported by competent evidence; defendant, however, asserts mitigating
factor nine is supposed to be listed on the judgment of conviction (JOC) in lieu
of aggravating factor ten, but also asserts aggravating factor nine should be in
place of aggravating factor ten. Since there is some confusion about what the
court intended, we remand for the court to provide clarification regarding the
aggravating and mitigating factors in the JOC.
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In all other respects, Judge Young correctly applied the relevant principles
and thoroughly addressed each asserted error raised in the PCR petition, searching
the record for demonstration of a reasonable probability that if counsel had done
these things, then the result of the trial would have been different. He ultimately
concluded they would not.
The record fully supports Judge Young's findings and conclusions that
defendant did not establish a prima facie case of ineffective assistance of counsel.
Accordingly, an evidentiary hearing was not necessary or warranted. We remand
for correction of the JOC consistent with this opinion.
Affirmed.
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