SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 18T1 STATE OF NEW JERSEY,
Plaintiff

- Respondent,

v. KEVIN LLOYD, a/k/a CHRIS BARRETT, and DEVIN KEITH,
Defendant

- Appellant.
Submitted May 12, 2020

– Decided J une 26, 2020 Before Judges Hoffman and Currier. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09

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- 2752. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Matthew E. Hanley , Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

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- 18T1 Appellant filed a pro se supplemental brief.
PER CURIAM Defendant Kevin Lloyd appeals from the denial of his petition for post

conviction relief (PCR), contendi ng trial and appellate counsel w ere ineffective, and the PCR court improperly denied his petition without an evidentiary hearing.
We affirm. The detailed circumstances leading to defendant's arrest and charges were set forth in our opinion in defendant's direct appeal. We need not repeat them
here. State v. Lloyd , No. A

- 0684

- 13 (App. Div. July 6, 2016 ). Essentially, Terrell Smith was shot in the back after being ch a sed by the
shoot er through a shopping center into a parking lot across the street and into a residential area. Id. at 1

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. Two security officers working in the mall described the shooter to police. Id. at 3.
Surveillance foot a ge w a s obtained from cameras in several stores and in
the mall. Defendant was identified as the shooter. The shirt he was wearing at the time of the shooting was discarded and later recovered. Defendant's DNA
was found on the shirt. Several witnesses in the mall identified defendant in a photo array. Smith told the police and grand jury he never turned aro und during
the chase and therefore he did not know who the shooter w a s
.3 A

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Joseph Sterling , a maintenance man and night watchman who had witnessed the shooting, told police he knew the shooter; he identified him from the photo array, but stated he only knew h im by the name "Mousey." During trial, however, Sterling said he had no reco l lecti o n of the events surrounding the shooting, it had occurred before he arrived at the m all and he had no recollec tion
of the statement he had g iven to police. After a N.J.R.E

. 104 hearing, the court admitted Sterling's prior reco r ded statement. The victim, Smith, did not testify
at the trial. Defendant was convicted by a jury in 2011 of attempted murder and several weapons offenses. He moved for a new trial, presenting a statement from Smith who recanted the testimony he had given before the grand jury.
Smith now stated he knew w ho the shooter was, and it w a s not defe nd ant. During an evidentiary hearing, Smith testified he lied to t he grand jury because
he was scared of the shooter. Smith admitted he was in carcerated with def en dant in the same correctional facility for approximately eighteen m o nths although he denied knowing def endant was in the jail or that defendant was awaiting t rial for shooting him. In denying the motion for a new trial, the tri a l c o ur t found
Smith's r ecantati o n of testimony was not credible or reliable.4 A

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Defendant was sentenced to life in prison without parole. On appeal, we
affirmed the c onv i cti o n s b ut remanded for re s entencing. Id. at 1. On remand, defendant was sentenced to an extended term of thirty years subject to the No Early Release Act, N.J.S.A. 2C:43

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. He appealed. We remanded again, finding the trial court had not provided sufficient reasons for the imposition of an extended term. State v. Lloyd , No. A

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- 17 (App. Div. Dec. 5, 2018). T he Supreme Court thereafter denied defendant ' s petition for
certification. State v. Lloyd , 238 N.J. 357 (2019).
Defendant filed a pro se PCR petitio n in 2016, and thereafter, assigned
counsel filed a brief. Defendant asserted trial counsel was ineffective for failing

to : (1) retain a DNA expert and to contest the DNA evidence ; (2) challenge the shirt he allegedly wore at the time of the crime; (3) interview witnesses, including Smith; (4) object to the identification made by Sterling ; and (5) obtain transcripts of Sterling's testimony. Defendant also alleged appellate counsel was ineffective in failing to raise certain issues on appeal.
The PCR cou rt granted an evidentiary hearing. In addition to d efendant , a paralegal from defendant's trial counsel's office testified at the hearing in
Ma rch 2018

. Defense counsel had passed away prior to the proceeding.5 A

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In an oral decision issued August 22, 201 8, the PCR court found defendant "failed to provide any legal or evidentiary basis to support his claims of ineffective assistance of counsel as to either trial or appellate counsel

. . . . " The court noted defendant "was not responsive to quest i ons posed , argumentative, at times confrontational and at times attempted to avoid the questions asked." The court characterized defendant's testimony as " lack [ ing ] total credib ility or reliability." In addressing each of defendant's allegations of ineffective as sistance of trial counsel, the PCR court found counsel had made decisions and employed trial strategies "well within [his] purview." Defe n d a nt proffered names of
witnesses that he stated should have been inter v iewed or called to te s tify. However, defendant failed to explain wh a t testimony these witnesses might have offered or how their testimony could have affected the outcome of the ca s e. The

court st at ed that defe n d a nt's allegations were " b a ld assertions, " unsupported by any facts. The PCR cour t also reviewed the a llegations of ineffective assistance against appellate counsel and rejected them, finding no defi ci ency in cou ns el 's representation. In conclusion, the PCR court stated , "Having presided over th [e] trial of
this matter ther e is no doub t in this [c]ourt's mind that [defe n d a nt] was convicted6 A

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by a jury of his peers on the overwhelming evidence of guilt presented by the
St at e as opposed t o any alleged ineffective assi s ta n ce of either trial or appellate
counsel." T he court noted the surveillance video, s t atements of witnesses, the
identification of defe ndant as the shooter by witnesses and Sterling , and the
DN A evidence. The PCR petition was denied. On appeal, defendant presents the following issues: TRIAL COUNSEL'S NEGLECT TO ADEQU ATELY COMMUNICATE WITH DEFENDANT, TO PROPERLY INVESTIGATE THE CASE, AND TO INTERVIEW AND PRODUCE WITNESSES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS FOR INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIAR Y HEARINGS AND PETITIONS FOR POST

CONVICTION RELIEF B. FAILURE TO COMMUNICATE, INVESTIGATE AND CALL WITNESSES In a pro se supplemental brief, defendant reiterates his counseled arguments and renews additional arguments presented before the trial court :

POINT I : [THE] PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED THE APPELLANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM WHERE TRIAL COUNSEL FAILED TO INVESTIGATE AND PRESENT A COMPLETE DEFENSE, VIOLATING THE7 A

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- 18T1 APPELLANT ' S SIXTH AND FOURTEENTH AMENDMENT RIGHT S TO COUNSEL AND A FAIR TRIAL
POINT II : [THE] PCR COURT ERRED WHEN IT DENIED THE APPELLANT ' S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM THAT TRIAL COUNSEL FAILED TO HAVE THE TRANSCRIPTS OF A WITNESS JOSEPH STERLING'S INCONSISTENT TESTIMONY ADMITTED INTO EVIDENCE WITH HIS AUDIO RECORDED STATEMENT THAT THE STATE HAD ADMITTED AS HIS TESTIMONY, VIOLATING THE APPELLANT ' S FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS OF LAW, WHEREFORE THE CONVICTION MUST BE SET ASIDE AND A NEW TRIAL MUST BE GRANTE D
POINT III : [THE] PCR COURT ERRED WHEN IT DENIED THE APPELLANT ' S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM WHERE TRIAL COUNSEL FAILED TO CONTEST THE POLICE PROCEDURE WHICH WAS USED WHEN THE INVESTIGATING OFFICERS FAILED TO FOLLOW THE ATTORNEY GENERAL GUID ELINE OF APRIL 18, 2001, VIOLATING THE APPELLANT ' S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS OF LAW, WHEREFORE THE CONVICTION MUST BE SET ASIDE AND A NEW TRIAL GRANTED
POINT IV : [THE] PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED THE APPELLAN T ' S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM WHERE TRIAL COUNSEL ADMITTED THAT HE WAS INEFFECTIVE BY INITIALING AND WRITING ON TWO SHEETS OF8 A

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- 18T1 PAPER SEVERAL ISSUES WHERE HE WAS INEFFECTIVE, VIOLATING THE APPELLANT ' S FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHT S TO DUE PROCESS OF LAW, WHEREFORE THE CONVICTION MUST BE SET ASIDE AND A NEW TRIAL GRANTED The standard for determining whether trial counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington , 466 U.S. 668 (1984), and adopted by our Supreme Court in State
v. Fritz , 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two

- prong test establishing both that: (l) counsel's performance wa s deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair tria l such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 687, 694. The same standard applies to appellate counsel. State v. O'Neil , 219 N.J. 598,
61 0 (2014) (citation omitted)

. We are satisfied from our review of the record that defendant failed to
demonstrate trial and appellate counsel were ineffective under the Strickland

Fritz test. Defendant has not proffered how the testimony o f a defense DNA9 A

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expert might have changed the outcome of the case. Nor has he presented affidavits from any witnesses he asserts should have been interviewed and called to testify at trial. Without any factual underpinning, defendant's allegations are nothing more than "bald assertions , " and cannot suffice to establish a prima facie
case of ineffective assistance of counsel. See State v. Cummings , 321 N.J. Super. 154, 170 (App. Div. 1999). In addition, defendant challe n ges his trial and appellate couns el's strategic
decisions. As our Supreme Court has stated, " An attorney is entitled to 'a strong presumption' that he or she provided reasonably effective assistance, and a 'defendant must overcome the presumption that' the attorney's decisions
followed a sound strategic approach to the case. " State v. Pierre , 223 N.J. 560,
578

- 79 (2015) (quoting Strickland , 466 U.S. at 689)

. Given the deference due

to the PCR court's factual findings and credibility assessments, we are satisfied defendant's allegations do not meet the Strickland standard of deficient performance. Moreover, defendant has not demonstrated that any of the alleged deficiencies would have changed the outcome. Because his petition was based on bald assertions and did not present a prima facie case of ineffective assistance of counsel, defendant was not entitled to an evidentiary hearing and the petition was properly denied. See State v.10 A

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Preciose , 129 N.J. 451, 462 (1992). Any remaining arguments are without
sufficien t merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(2).
Affirmed.