SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4694-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN LOYAL, a/k/a

TASHAWN BENNET, TESHAWN

BENNET, TASHAWN BENNETT,

TAHIR HOSKING, OMAR 

LAKEWOOLKE, ALEQUAN 

LOYAL, ALQUIRE LOYAL, 

ALQUVRE LOYAL, FAREEM 

SMITH, JAMES SMITH, 

TASHAWN R. SMITH, and

TASHAWN WALLACE,

Defendant-Appellant.

_______________________________

Submitted September 26, 2018 - Decided 

Before Judges Fuentes and Accurso.

On appeal from Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 10-05-0493.

NOT FOR PUBLICATION WITHOUT THE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.

October 12, 2018
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Joseph E. Krakora, Public Defender, attorney for 

appellant (Andrew R. Burroughs, Designated Counsel, 

on the brief).

Michael A. Monahan, Acting Union County 

Prosecutor, attorney for respondent (Izabella M. 

Wozniak, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shawn Loyal appeals from the denial of his petition for postconviction relief (PCR), contending he established a prima facie case of 

ineffective assistance of counsel requiring an evidentiary hearing. Because the 

trial judge correctly determined the evidence insufficient to sustain defendant's 

burden, we affirm.

A jury convicted defendant of second-degree eluding, N.J.S.A. 2C:29-

2(b); two counts of second-degree aggravated assault causing bodily injury 

during the course of eluding, N.J.S.A. 2C:12-1(b)(6); second-degree aggravated 

assault causing serious bodily injury, N.J.S.A. 2C:12-1(b)(1); fourth-degree 

assault by auto causing serious bodily injury, N.J.S.A. 2C:12-1(c)(1); thirddegree receiving stolen property, N.J.S.A. 2C:20-7; third-degree aggravated 

assault of a police officer, N.J.S.A. 2C:12-1(b)(5); fourth-degree resisting arrest 

by flight, N.J.S.A. 2C:29-2(a)(2); third-degree hindering apprehension, N.J.S.A.

2C:29-3(b)(4); and fourth-degree hindering apprehension, N.J.S.A. 2C:29-
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3(b)(4). The judge granted the State's motion for a discretionary extended term 

pursuant to N.J.S.A. 2C:44-3(a) on one of the two counts of second-degree 

aggravated assault in the course of eluding and, following appropriate mergers,

sentenced defendant to an aggregate term of twenty-eight years in State prison, 

twenty-five of which are subject to an eighty-five percent period of parole 

ineligibility, and three years of parole supervision. We affirmed defendant's 

conviction on direct appeal, State v. Loyal, No. A-1085-11 (App. Div. Oct. 30, 

2014) (slip op. at 2). No petition for certification appears to have been filed.

Defendant's arrest and conviction arose out of a high speed chase in a 

stolen car. Id. at 3. He led police through Elizabeth at speeds of up to seventy 

miles an hour before running a red light and broadsiding a taxicab, injuring both 

the cabbie and his passenger. Ibid. The pursuing officers identified defendant 

as the driver and testified he was alone in the car. Id. at 3-4. As the police 

caught up to defendant after the crash, he was trying to get out the driver's side 

door. Id. at 3. The officers maneuvered their patrol car alongside the driver's 

door, pinning it shut. Id. at 3-4. The officers testified defendant climbed across 

the front seat, jumped out the passenger side door and ran until he was tackled 

and subdued by the officers. Id. at 4. 
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Defendant testified in his own defense. He claimed he was an unwitting 

passenger in the car, having accepted a ride from an old school acquaintance he 

had not seen in many years and whose last name he did not know. Id. at 4. 

Defendant claimed he tried to get the driver to pull over after he accelerated 

away from the police, and tried to remove the keys from the ignition without 

success. Ibid. He further insisted he was knocked unconscious in the crash and 

awoke to find the driver gone and the officers pulling him out of the car, 

punching him and claiming he was the driver. Ibid. Supporting the defense 

theory that defendant was only a passenger in the car, defendant's counsel 

pointed to evidence in the record that the passenger side air bag deployed in the 

crash. Id. at 5. But because defendant did not present an expert, "[t]he court 

ruled that defense counsel could question witnesses about the deployment of the 

passenger-side airbag and comment about it in argument to the jury but could 

not speculate as to the reason it had deployed." Ibid.

Defendant raised six issues on appeal, including the insufficiency of the 

identification testimony, the State's failure to investigate and apprehend the true 

culprit, the court's "suppress[ion] [of] evidence of and comment about the 

deployment of the front seat passenger air bag from which the jury could have 

logically inferred that he was the front seat passenger and not the driver," and 
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that cumulative error denied him a fair trial. Id. at 6-8. We rejected each of 

those arguments. Id. at 8.

In his amended PCR petition, defendant claimed his trial counsel was 

ineffective by failing to hire experts to testify about the car's air bag deployment 

system, fingerprint analysis of the steering wheel and DNA recovered from the 

passenger side air bag to prove he was not the driver. He further claimed 

appellate counsel was ineffective for failing to raise an excessive sentence claim.

After hearing argument by assigned counsel, Judge Mega, who also 

presided over defendant's trial and sentencing, issued a comprehensive written 

opinion denying the petition on the basis that defendant had failed to establish a 

prima facie claim for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992). 

First addressing defendant's claim regarding his counsel's failure to call experts, 

the judge noted defendant was convicted based on the testimony of the officers 

as to what they saw, not physical proof of defendant's identity. The officers 

testified they never lost sight of the car from the moment they attempted to pull 

it over until after the crash, and that defendant was the only person to ever get 

out. 

The judge found that because defendant made no effort to assert the facts

on which the experts he claims would have exonerated him would have based 
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their opinions, his claims remained only bald assertions, insufficient to establish 

a prima facie case of ineffective assistance. See State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div. 1999) (noting a petitioner claiming his attorney 

inadequately investigated facts necessary to support his defense, "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").

Judge Mega also rejected defendant's claim that his appellate counsel was

ineffective for failing to assert an excessive sentence argument, observing

defendant's failure to explain how that argument would have been successful on 

appeal. The judge noted defendant's acknowledgment that he was sentenced 

within the range permitted by law and his failure to establish either that the 

aggravating factors lacked competent, credible evidence in the record or that 

notwithstanding proper application of the sentencing guidelines, the sentence

shocks the judicial conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984).

On this appeal defendant raises the following arguments:

POINT I

AS DEFENDANT RECEIVED INEFFECTIVE 

ASSISTANCE OF COUNSEL, HE WAS ENTITLED 

TO POST-CONVICTION RELIEF.
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POINT II

APPELLATE COUNSEL FAILED TO RAISE THE 

ISSUE WHETHER DEFENDANT'S SENTENCE 

WAS EXCESSIVE.

POINT III

AS THERE ARE GENUINE ISSUES OF MATERIAL 

FACTS IN DISPUTE, AN EVIDENTIARY HEARING 

WAS REQUIRED.

POINT IV

PCR COUNSEL WAS INEFFECTIVE FOR FAILING 

TO ARGUE THAT TRIAL COUNSEL NEGLECTED 

TO INVESTIGATE DEFENDANT'S ALIBI 

WITNESS (NOT RAISED BELOW).

To succeed on a claim of ineffective assistance, defendant must establish, 

first, that "counsel's representation fell below an objective standard of 

reasonableness" and, second, that "there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been 

different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). A 

defendant must do more than demonstrate that an alleged error might have "had 

some conceivable effect on the outcome of the trial," State v. Sheika, 337 N.J. 

Super. 228, 242 (App. Div. 2001), instead, he must prove the error is so serious 

as to undermine the court's confidence that the "defendant's trial was fair, and 

that the jury properly convicted him." State v. Pierre, 223 N.J. 560, 588 (2015). 
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Measured by that standard, defendant has not established that he received 

ineffective assistance of counsel on this record.

We agree with Judge Mega that defendant's claims of ineffectiveness of 

his trial counsel fail because he presented absolutely no evidence as to what an 

engineering, DNA or fingerprint expert could or would have opined and on the 

basis of what facts. Defendant's assertions as to what such experts might have 

testified to at trial are thus only speculation and insufficient to prove that 

counsel's failure to call experts materially contributed to his conviction. See

State v. Jones, 219 N.J. 298, 311 (2014). 

As to appellate counsel's failure to have raised an excessive sentence 

argument, it is well established that appellate counsel need not advance every 

argument a defendant urges, even if non-frivolous. Jones v. Barnes, 463 U.S.

745, 750-54 (1983). Moreover, having reviewed the sentencing transcript, we 

are convinced any such argument would have been unavailing. Defendant was 

twenty-five years old and a fugitive from the Intensive Supervision Program

when he committed the crimes for which he was sentenced. As Judge Mega 

explained in meticulous detail at the time of sentencing, defendant had an 

extensive juvenile record and at least six prior convictions for indictable 

offenses as an adult, including convictions for narcotics distribution, unlawful 
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possession of a weapon, theft offenses and aggravated assault of a police officer. 

He had already been sentenced to six prior State prison terms, and had two ISP 

or parole violations, two probation terms and two violations of probation on his 

record. Judge Mega carefully explained his reasons for imposing a discretionary 

extended term, discussing each factor at length, as well as why consecutive 

sentences were warranted under State v. Yarbough, 100 N.J. 627, 643-44 (1985). 

As Judge Mega's careful findings and balancing of the aggravating and 

mitigating factors were supported by adequate evidence in the record, and the 

sentence he imposed was neither inconsistent with sentencing provisions of the 

Code of Criminal Justice nor shocking to the judicial conscience, see State v. 

Fuentes, 217 N.J. 57, 70 (2014), appellate counsel's failure to argue an excessive 

sentence claim could not be deemed to constitute ineffective assistance. See

State v. Gaither, 396 N.J. Super. 508, 514 (App. Div. 2007).

Finally, we reject defendant's argument that his PCR counsel was 

ineffective by failing to argue trial counsel's ineffectiveness for failing to locate 

the old school acquaintance defendant claimed drove the car that broadsided the 

taxicab. Defendant has failed to present any competent evidence that the 

acquaintance, whom defendant claimed he had not seen since he was nine years 

old and whose last name he did not know, even existed, much less could be 
10 A-4694-16T4

found and would admit that he and not defendant was the driver. Thus, 

defendant cannot show that PCR counsel's performance was deficient or that

there is a reasonable probability that but for counsel's errors, the result of the 

PCR proceeding would have been different. See Strickland, 466 U.S. at 687-88, 

694.

Affirmed.