STATE OF NEW JERSEY VS. KAWAN BOLT (06-03-0367, BURLINGTON AND MERCER COUNTIES AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0063-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KAWAN BOLT,
Defendant-Appellant.
_____________________________
Submitted November 6, 2019 – Decided December 18, 2019
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington and Mercer Counties, Indictment
No. 06-03-0367.
Joseph E. Krakora, Public Defender, attorney for
appellant (Howard Woodley Bailey, Designated
Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Daniel Opatut, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from an order entered by the Law Division on August
29, 2018, which denied his petition for post-conviction relief (PCR). We affirm.
I.
In March 2006, defendant and Victor Baylor were charged with first-
degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree attempted theft,
N.J.S.A. 2C:5-1, N.J.S.A. 2C:20-3(a) (count two); fourth-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(4) (count three); and second degree possession of
a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). Defendant
and Baylor were tried jointly before a jury.
The evidence presented at trial established that on October 24, 2005, two
masked men entered a delicatessen on Brunswick Avenue in Trenton. The
shorter man put a gun to the owner's head and demanded money, while the taller
man punched the owner. One of the store's employees grabbed the short man's
gun and a struggle ensued. The tall man fought the employee and punched him
in the face.
The perpetrators' masks fell off and their faces were revealed. The store's
owner and an employee recognized both perpetrators as frequent customers. The
owner took a small knife and stabbed the taller man above the right eye and on
the left side of his abdomen. The perpetrators left the store without taking any
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money. The incident was reported to the Trenton police, who contacted local
hospitals and learned that a man had come to a hospital with stab wounds above
the right eye and on the left side of the abdomen.
A detective went to the hospital and spoke with the injured man, who was
identified as defendant. He claimed he had been "jumped." The police brought
one of the store's employees to the hospital. He identified defendant as one of
the perpetrators of the robbery.
The detective learned that defendant had signed in at the hospital under a
false name. He informed defendant of his Miranda rights.1 The detective asked
defendant how he came to be injured.
He stated that two men tried to rob him, and he was injured when he fought
with them. The detective told defendant he did not believe him and said he
would be questioned further at the police station.
Defendant then admitted he lied when he stated he was a victim of a
robbery. He told the detective he walked into the deli while a robbery was in
progress. He claimed he tried to help the employees but was stabbed in the
struggle. Later that evening, employees from the deli identified Baylor as the
other perpetrator.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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The jury found defendant guilty on all counts.2 The trial court merged
counts two, three, and four with count one, and sentenced defendant to twelve
years of incarceration, with an 85% period of parole ineligibility as prescribed
by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a
four-year concurrent term for an outstanding probation violation.
II.
Defendant appealed from the judgment of conviction (JOC) dated March
9, 2007, and raised the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING
DEFENSE COUNSEL'S MOTION TO SUPPRESS
THE ORAL STATEMENTS MADE BY HIM TO THE
POLICE PURSUANT TO CUSTODIAL
INTERROGATION WITHOUT HAVING BEEN
ADVISED OF HIS MIRANDA WARNING, WHICH
NECESSARILY TAINTED HIS ORAL
STATEMENTS MADE IMMEDIATELY
THEREAFTER AFTER HE WAS ADVISED OF HIS
WARNING.
POINT II
THE TRIAL COURT'S INDEPENDENT
QUESTIONING OF THE DEFENDANT CAST
ITSELF INTO THE ROLE OF AN ADVOCATE BY
ESSENTIALLY PROJECTING ITS OWN DISBELIEF
OF THE DEFENDANT'S TESTIMONY. (Not raised
below).
2
Baylor was convicted of the same charges. See State v. Baylor, No. A-3891-
07 (App. Div. Aug. 24, 2010).
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POINT III
THE TRIAL COURT ERRED BY INSTRUCTING
THE JURY THAT THE FACT THE DEFENDANT
GAVE A FALSE NAME TO THE HOSPITAL
COULD BE UTILIZED AS DEMONSTRATING A
CONSCIOUSNESS OF GUILT ON HIS BEHALF.
POINT IV
THE SENTENCE IMPOSED WAS MANIFESTLY
EXCESSIVE.
We affirmed defendant's convictions and sentence. State v. Bolt, No. A-
6198-06 (App. Div. Aug. 4, 2010). Defendant then filed a petition for
certification with the Supreme Court. The Court denied the petition. State v.
Bolt, 205 N.J. 77 (2011).
On August 15, 2012, defendant filed a verified petition for PCR. The
court found the petition was barred by Rule 3:22-12(a)(1) because it had not
been filed within five years after the date the JOC was entered, and defendant
did not establish that his failure to file a timely petition was due to excusable
neglect. The PCR court also found defendant did not present a prima facie case
of ineffective assistance of counsel, and denied his request for an evidentiary
hearing. The PCR court memorialized its decision in an order dated September
24, 2014.
Defendant appealed from the court's order. We reversed and remanded
the matter for further proceedings. State v. Bolt, No. A-2017-14 (App. Div.
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Nov. 17, 2016) (slip op. at 8). We stated that on remand, the PCR court should
appoint new counsel to represent defendant and counsel should be afforded the
opportunity for oral argument. Ibid. We also stated that PCR counsel could
seek leave to file certifications in support of the petition, and the court may
reconsider its decision that an evidentiary hearing was not required. Id. at 8-9.
The matter was thereafter transferred to Burlington County.
III.
The PCR court appointed new counsel for defendant, and defendant filed
a certification in support of his petition. PCR counsel filed a brief in which he
argued that the petition was not barred by Rule 3:22-12(a)(1). Counsel also
argued that defendant was denied the effective assistance of counsel because
trial counsel failed to: consult with defendant to review the evidence and
prepare essential defenses; object to the trial court's questioning of defendant;
object to numerous instances of prosecutorial misconduct; argue applicable
mitigating factors, and seek a reduced sentence. In addition, PCR counsel
argued that the court should consider the "totality" of the trial errors and asserted
that defendant was denied the effective assistance of appellate counsel.
On February 2, 2018, the PCR court conducted oral argument. Defendant
was present and commented on the record. The PCR court thereafter filed a
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written opinion in which it concluded that the petition was barred under Rule
3:22-12(a)(1) because defendant failed to establish his failure to file a timely
petition was due to excusable neglect.
The PCR court nevertheless considered the petition on the merits and
found that defendant failed to establish a prima facie case of ineffective
assistance of trial or appellate counsel. The court therefore determined that
defendant was not entitled to an evidentiary hearing. The court entered an order
denying PCR. This appeal followed.
On appeal, defendant argues that: (1) the PCR court erred by denying his
petition for PCR without affording him an evidentiary hearing to address his
claim that he did not receive adequate legal representation from trial counsel;
and (2) the court erred by applying Rule 3:22-12(a)(1) as a procedural bar to the
petition.
IV.
As noted, defendant argues that the PCR court erred by denying his
request for an evidentiary hearing on his claim that he was denied the e ffective
assistance of trial counsel. We disagree.
An evidentiary hearing is required on a PCR petition only if the defendant
presents a prima facie case in support of relief, the PCR court determines there
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are material issues of fact which cannot be resolved based on the existing record,
and the court finds that an evidentiary hearing is required to resolve the claims
presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). A
prima facie case is established when the defendant establishes "a reasonable
likelihood that his or her claim, viewing the facts alleged in the light most
favorable to the defendant, will ultimately succeed on the merits." R. 3:22-
10(b).
To prevail on a claim of ineffective assistance of counsel, a defendant
must satisfy the two-part test established in Strickland v. Washington, 466 U.S.
668, 693 (1984), and later adopted by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987). Under the test, a defendant first "must show that counsel's
performance was deficient." Strickland, 466 U.S. at 693. Defendant must
establish that counsel's performance "fell below an objective standard of
reasonableness" and "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Ibid.
Defendant also must show "that the deficient performance prejudiced the
defense." Ibid. To establish prejudice, the defendant must establish "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of
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the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome" of the matter.
Id. at 698.
Here, defendant argues he established that he was denied the effective
assistance of counsel because his attorney did not obtain video footage from a
security camera at the deli where the robbery occurred. Defendant contends he
informed his first attorney about the security camera and told him he wanted to
get a copy of the video footage. He asserts that if counsel had presented the
footage to the jury, it would have supported his testimony that he never went
into the deli with the intent to commit any type of robbery.
The PCR court found that the record shows defendant's attorney consulted
with defendant and conducted a reasonable investigation on this possible
defense. The court noted that at oral argument, defendant stated that before he
went to trial, he informed his first attorney about the security camera in the deli.
Defendant said an investigation was conducted and "people in the store" said the
security camera was not working on the day of the robbery.
Moreover, defendant did not submit any affidavit or certification to the
PCR court establishing that the security camera in the deli was, in fact, operating
when the robbery was committed. In addition, at trial, the owner of the deli
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testified that at the time of the robbery, there was a camera in the store but it
"had broken down." Furthermore, two employees who were present during the
robbery also testified that there was a camera in the deli, but it was not working.
Defendant nevertheless argues the PCR court should have conducted an
evidentiary hearing during which PCR counsel could have asked trial counsel
why he did not obtain the footage from the deli's security camera. Defendant
notes that during the oral argument, he "suggested" trial counsel conducted an
investigation about the security tapes and discovered that "on this one particular
day" the security camera was not recording. Defendant claims the initial inquiry
by his attorney was insufficient.
We are convinced, however, that defendant failed to present the PCR court
with sufficient evidence to establish a prima facie case of ineffective assistance
of counsel with regard to counsel's alleged failure to obtain the security footage.
To establish a prima facie claim of ineffective assistance, a defendant "must do
more than make bald assertions that he was denied the effective assistance of
counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
Here, defendant did not establish that his attorney failed to investigate the
existence of the footage from the deli's security camera. Defendant presented
no competent evidence showing that the security camera was, in fact, working
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and that it recorded the robbery. Indeed, the evidence presented at trial
established that the camera in the deli was not working at the time. Moreover,
at oral argument, defendant did more than suggest that his attorney had
investigated this possible defense. He conceded that counsel had investigated
possible surveillance footage and was told the camera was not operating when
the robbery was committed.
We therefore conclude the PCR court correctly determined that defendant
was not entitled to an evidentiary hearing on this claim. The record supports the
court's finding that defendant failed to establish a prima facie case of ineffective
assistance of trial counsel.
V.
Defendant further argues that the PCR court erred by finding his petition
was barred under Rule 3:22-12(a)(1). He contends he established excusable
neglect for his failure to file the PCR petition within five years after the date on
which the JOC was entered. He also contends there is a reasonable probability
that if his factual allegations are correct, enforcement of the time-bar would
result in a fundamental injustice.
As we have explained, while the PCR court found defendant's petition was
barred under Rule 3:22-12(a)(1), the court considered defendant's claims and
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found that he had not established a prima facie case of ineffective assistance of
counsel and that defendant was not entitled to an evidentiary hearing on his
petition. Therefore, we need not address defendant's contention that the court
erred by finding the petition was barred by Rule 3:22-12(a)(1).
Affirmed.
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