STATE OF NEW JERSEY VS. MARC KIRKLAND (13-08-0432, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-4143-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARC KIRKLAND,
Defendant-Appellant.
_______________________________
Submitted January 11, 2021 – Decided January 25, 2021
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 13-08-
0432.
Joseph E. Krakora, Public Defender, attorney for
appellant (James D. O'Kelly, Designated Counsel, on
the brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Amanda Frankel, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from a March 5, 2019 order denying his petition for
post-conviction relief (PCR). He maintains both his trial and PCR counsel
rendered ineffective assistance. Judge Kathy C. Qasim entered the order and
rendered a thorough twenty-two-page written decision. We affirm.
A jury found defendant guilty of first-degree robbery, N.J.S.A. 2C:15-1.
We affirmed the conviction, State v. Kirkland, No. A-0114-15 (App. Div. Apr.
4, 2017), and the Supreme Court denied certification, State v. Kirkland, 230 N.J.
609 (2017). In January 2018, defendant filed his pro se PCR petition, which his
PCR counsel amended in October 2018. Thereafter, defendant's PCR counsel
filed a brief and submitted certifications supporting the petition. In February
2019, Judge Qasim conducted oral argument, then issued her written decision
and order under review.
On appeal, defendant raises the following arguments for this court's
consideration:
POINT I
THE PCR [JUDGE'S] FAILURE TO ADJUDICATE
ALL OF [DEFENDANT'S] CLAIMS REQUIRES A
REMAND FOR A NEW PCR PROCEEDING[.]
POINT II
AN EVIDENTIARY HEARING WAS REQUIRED TO
RESOLVE [DEFENDANT'S] CLAIM THAT TRIAL
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COUNSEL WAS INEFFECTIVE AT THE PLEA-
BARGAINING STAGE[.]
POINT III
THIS MATTER SHOULD BE REMANDED
BECAUSE [DEFENDANT] RECEIVED
INEFFECTIVE ASSISTANCE OF PCR COUNSEL[.]
I.
We reject defendant's contention that the PCR judge failed to adjudicate
the PCR claims in his pro se petition (asserting ten claims), as amended by his
own PCR counsel (making an additional thirty-one claims), and as contained in
the certifications submitted by PCR counsel. PCR counsel repeated many of the
original arguments, and the additional contentions in the amended petition were
otherwise contained in the original petition, as amplified by the brief filed by
PCR counsel. To the extent that any of the arguments were barred under Rule
3:22-4 and Rule 3:22-5, such as assertions related to the jury charges, the judge
carefully explained that she considered trial counsel's performance against the
overwhelming evidence of guilt and concluded that trial counsel was an effective
advocate. Although the judge may not have specifically enumerated each of the
forty-one contentions, our review of her written decision demonstrates that she
comprehensively analyzed defendant's PCR arguments.
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II.
A defendant is only entitled to an evidentiary hearing when he "'has
presented a prima facie [claim] in support of [PCR],'" meaning that a defendant
must demonstrate "a reasonable likelihood that his . . . claim will ultimately
succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (quoting
State v. Preciose, 129 N.J. 451, 463 (1992)). A defendant must "do more than
make bald assertions that he was denied the effective assistance of counsel" to
establish a prima facie claim entitling him to an evidentiary hearing. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A defendant bears the
burden of establishing a prima facie claim. State v. Gaitan, 209 N.J. 339, 350
(2012). We "view the facts in the light most favorable to a defendant to
determine whether a defendant has established a prima facie claim." Preciose,
129 N.J. at 463-64.
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong,
a defendant must establish that his counsel "made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
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Amendment." 466 U.S. at 687. The defendant must rebut the "strong
presumption that counsel's conduct [fell] within the wide range of reasonable
professional assistance[.]" Id. at 689. Thus, this court must consider whether
counsel's performance fell below an object standard of reasonableness. Id. at
688.
To satisfy the second Strickland/Fritz prong, a defendant must show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687. A defendant must establish "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's
performance has been so deficient as to create a reasonable probability that these
deficiencies materially contributed to defendant's conviction, the constitutional
right will have been violated." Fritz, 105 N.J. at 58.
Here, defendant failed to demonstrate a prima facie case of ineffectiveness
of trial counsel either during plea discussions or trial. The record reflects the
State would not have downgraded the charge, and therefore there was no need
to produce medical records that defendant believes would have made him
eligible for drug court. As a result, we see no prejudice. At any rate, as the
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State's merits brief points out, even though the assistant prosecutor had no
objection to a TASC evaluation, there was no indication that the charge would
have been downgraded. Indeed, trial counsel attempted to convince the State to
downgrade the charge so defendant could be considered for drug court, but the
State was unwilling to do so, primarily because there was no evidence that at
the time defendant robbed the bank he was under the influence.
III.
We next address defendant's claim that he was denied 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). PCR counsel is not, however, required to bolster claims raised by a
defendant that are without foundation, but rather, only those "the record will
support." Webster, 187 N.J. at 257.
With this standard in mind, we conclude defendant failed to establish a
prima facie case that his PCR counsel rendered ineffectiveness. She advanced
his PCR claims, and as to the failure to produce the medical records, here too
we see no prejudice because defendant was ineligible for drug court, and the
State would not have admitted him into that program.
Affirmed.
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