RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1393-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN FIELDS, a/k/a 

JERMAINE BATEMAN, 

KEVIN CLARKE, KEVIN 

BUTLER, KEVIN FEILDS, 

and KEVIN TAYLOR 

Defendant-Appellant.

________________________

Submitted October 4, 2021 – Decided October 29, 2021

Before Judges Rose and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment Nos. 17-03-0776, 

17-07-1853 and 17-08-2087.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Abby P. Schwartz, Designated Counsel, on 

the brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Matthew E. 

NOT FOR PUBLICATION WITHOUT THE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.
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Hanley, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the brief). 

PER CURIAM 

Defendant Kevin Fields appeals from a September 30, 2019 order denying 

his petition for post-conviction relief (PCR) based on his claim of ineffective 

assistance of counsel. We affirm.

Between March and August of 2017, defendant was charged with nine 

offenses under three separate indictments. First, he was indicted in March 2017 

for: second-degree aggravated assault, N.J.S.A. 2C:12-1(b); second-degree 

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree 

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), following 

a shooting in a Newark apartment. Next, due to his involvement in a shooting 

inside a Newark liquor store, he was indicted in July 2017 for: second-degree 

burglary, N.J.S.A. 2C:18-2; two counts of second-degree aggravated assault, 

N.J.S.A. 2C:12-1(b); second-degree unlawful possession of a weapon, N.J.S.A. 

2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, 

N.J.S.A. 2C:39-4(a). Finally, he was indicted in August 2017 for third-degree 

terroristic threats, N.J.S.A. 2C:12-3(b), after threatening his girlfriend with 

bodily harm. 
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In November 2017, defendant's court-appointed counsel and the Essex 

County assistant prosecutor met for a status conference. The judge adjourned 

the conference so defense counsel could review a surveillance video of the May 

2017 liquor store incident. The prosecutor provided defense counsel with the 

video "sometime in the fall of 2017," but initially, defense counsel was unable 

to view it due to technical issues. He eventually watched the video in February 

2018 and noted the footage did not support defendant's claim that he acted in 

self-defense during the liquor store incident. 

Defense counsel and the prosecutor met for a plea conference on February 

13, 2018. At that time, defendant had begun serving an eighteen-month sentence 

for an unrelated matter. Defense counsel rejected the State's initial eight-year 

prison term offer, and negotiated a favorable plea agreement whereby defendant 

agreed to plead guilty to two counts of second-degree aggravated assault and 

two counts of second-degree possession of a handgun under separate 

indictments. He also agreed to plead guilty to the third-degree terroristic threats 

charge under the third indictment. In exchange for defendant's guilty pleas, the 

State recommended that he serve: five-year prison terms for both counts of 

second-degree aggravated assault, subject to the No Early Release Act (NERA), 

N.J.S.A. 2C:43-7.2; five-year terms for both counts of second-degree unlawful 
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possession of a weapon, subject to the Graves Act, N.J.S.A. 2C:43-6(c); and a 

three-year term for the terroristic threats offense. Additionally, the State 

recommended that all sentences would run concurrently with each other and 

with the sentence defendant was currently serving so defendant's aggregate 

sentence would not exceed five years, and it recommended dismissal of the 

remaining charges. 

At sentencing on March 26, 2018, defense counsel requested a downward 

departure on the second-degree charges so defendant would be sentenced in the 

third-degree range, pursuant to N.J.S.A. 2C:44-1(b). Counsel primarily relied 

on mitigating factor nine, N.J.S.A. 2C:44-1(b)(9) (the character and attitude of 

the defendant indicate that he is unlikely to commit another offense). The State 

objected to the downward departure and argued in favor of aggravating factors 

three (risk of reoffending), six (criminal history), and nine (deterrence), N.J.S.A. 

2C:44-1(a)(3), (6), and (9). 

The judge found aggravating factors three, six, and nine applied, and that 

defendant's guilty pleas in this matter resulted in his seventeenth, eighteenth and 

nineteenth indictable convictions. She also found mitigating factor nine, but 

concluded it was outweighed by the aggravating factors. Accordingly, she 
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denied defendant's request for a downward departure and sentenced defendant 

consistent with the plea agreement. 

In December 2018, defendant filed a PCR petition, claiming his plea 

counsel was ineffective by failing to "properly articulate [an] aggravating and 

mitigating factor analysis" in favor of a downward departure at sentencing. PCR 

counsel also argued that the delay in resolving defendant's indictments "violated 

his right to a speedy trial." The same judge who sentenced defendant conducted 

argument on defendant's application on September 23, 2019. She stated she had 

"an independent recollection of the chronology of this matter and of the 

negotiated plea agreement that yielded the defendant's sentence." Additionally, 

the judge found "the sentence received by [defendant] was required by statute. 

The two statutes that were implicated in the sentencing scheme were [NERA] 

and the Graves Act." Further, the judge rejected defendant's speedy trial 

argument, finding that although the delay 

occasioned between the . . . defendant's arrest and . . . 

ultimate disposition is lengthy, . . . at no time did 

[defendant] protest the delay, did encourage the 

delay[,] and the ultimate resolution is a resolution that 

contemplated three indictments that may not have been 

available at an earlier period of time.

On each matter . . . [defendant] was presented before 

the court. [Defendant] neither orally nor in any 
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independent writing ever decried the length of time 

occasioned by the delay.

The court notes that [defendant] is not a novice . . . in 

the criminal justice system and the court would find, 

one[,] he was represented by counsel[;] two[,] he was 

quite aware that ‒ in this instance . . . justice delayed 

may in effect yield a better outcome.

Accordingly, the judge denied defendant's PCR petition without an evidentiary 

hearing. 

On appeal, defendant raises the following arguments:

 POINT I

COUNSEL FOR DEFENDANT WAS INEFFECTIVE 

AS HE FAILED TO WATCH THE VIDEO CAUSING 

A DENIAL OF DEFENDANT'S RIGHT TO A 

SPEEDY TRIAL AND BY FAILING TO WEIGH THE

AGGRAVATING AND MITIGATING FACTORS AT 

SENTENCING, FAILED TO HAVE THE COURT 

SENTENCE DEFENDANT TO AN OFFENSE ONE 

DEGREE LOWER THAN THAT FOR WHICH HE 

WAS SENTENCED. THIS DENIED DEFENDANT 

DUE PROCESS AND A FAIR TRIAL. (Partially 

raised below).

A. Ineffective Assistance of Counsel.

B. Counsel Was Ineffective For Failing To Move This 

Case In A Quicker Fashion And, As Such, Violated 

Defendant's Right To A Speedy Trial.

C. Counsel Was Ineffective For Failing To Structure An

Argument In Support Of Sentencing Defendant To 

Third-Degree Offenses For The Assaults.
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We are not convinced.

Generally, we will not disturb a PCR court's factual findings if they are 

"supported by adequate, substantial and credible evidence." State v. Harris, 181 

N.J. 391, 415 (2004) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 

502, 549 (2002)). However, when a PCR petition is denied without an 

evidentiary hearing, as was the case here, we "may review the factual inferences 

the [PCR] court has drawn from the documentary record de novo." State v. 

Blake, 444 N.J. Super. 285, 294 (App. Div. 2016). We also review a PCR court's 

legal conclusions de novo. Ibid.

Criminal defendants are guaranteed the right to effective legal assistance 

from counsel. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. A claim for 

ineffective assistance of counsel must satisfy the two-part test pronounced in 

Strickland v. Washington, 466 U.S. 668, 684-87 (1984); see also State v. Fritz, 

105 N.J. 42, 49-53 (1987). First, the defendant must show that counsel's 

performance was deficient (the deficiency prong). State v. Gideon, 244 N.J. 

538, 550 (2021). Second, the defendant must prove that he or she suffered 

prejudice as a result of counsel's deficient performance (the prejudice prong). 

Ibid. The burden of proving both prong falls "squarely on the defendant." State 

v. Paige, 256 N.J. Super. 362 (App. Div. 1992). 
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The deficiency prong requires a showing that counsel "made errors so 

serious that [he or she] was not functioning as the 'counsel' guaranteed the 

defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. To be deemed 

deficient, counsel's representation must fall below the standard of 

"reasonableness under prevailing professional norms." Id. at 688. We must 

"indulge a strong presumption that counsel's conduct falls within the wide range 

of reasonable professional assistance[,]" and "[j]udicial scrutiny of counsel's 

performance must be highly deferential." Id. at 689. Counsel's performance is 

not deficient "[m]erely because a trial strategy fails[,]" State v. Bey, 161 N.J. 

233, 251 (1999), or because he or she failed "to raise unsuccessful legal 

arguments[,]" State v. Worlock, 117 N.J. 596, 625 (1990). 

Even if counsel's performance was deficient, a defendant must also prove 

prejudice resulted from the deficiency. The prejudice prong has been described 

as the "far more difficult" hurdle to overcome, State v. Preciose, 129 N.J. 451, 

463 (1992), an "'exacting standard[,]'" Gideon, 244 N.J. at 561 (quoting State v. 

Allegro, 132 N.J. 352, 267 (2008)), and where "most PCR petitions . . . are likely 

to fail," State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011). To prove 

prejudice, a defendant must show "a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been 
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different." Strickland, 466 U.S. at 687. Because of the uncertainty associated 

with trial, "it is often quite difficult for petitioners who have acknowledged their 

guilt to satisfy Strickland's prejudice prong." Padilla v. Kentucky, 559 U.S. 356, 

371 n. 12 (2010). Therefore, where a defendant seeks to set aside a conviction 

based on a guilty plea, he or she must also "'convince the court that a decision 

to reject the plea bargain'" and proceed to trial "'would have been rational under 

the circumstances.'" Maldon, 422 N.J. Super. at 486 (quoting Padilla, 559 U.S. 

at 372); see also State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009). Such a 

determination must be "based on evidence, not speculation." Ibid.

Here, defendant argues plea counsel was ineffective because when he 

presented an aggravating and mitigating factor analysis at sentencing, counsel 

failed to emphasize that a downward departure was appropriate under the 

"interest of justice" prong of N.J.S.A. 2C:44-1(f)(2). We disagree. 

N.J.S.A. 2C:44-1(f)(2) provides that a court may sentence a defendant 

who has been convicted of a first- or second-degree crime to a term appropriate 

to an offense one degree lower if: (1) it is "clearly convinced that the mitigating 

factors substantially outweigh the aggravating factors"; and (2) "the interest of 

justice [so] demands." A defendant must satisfy both statutory prongs to justify 

a downward departure. State v. Megargel, 143 N.J. 484, 496 (1996). 
10 A-1393-19

"'[A] criminal sentence is always and solely committed to the discretion 

of the trial court to be exercised within the standards prescribed by the Code of 

Criminal Justice.'" State v. Hess, 207 N.J. 123, 151 (2011) (quoting State v. 

Warren, 115 N.J. 433, 447 (1989)). Plea counsel has a duty to present relevant 

mitigating factors and supporting evidence at sentencing. See id. at 154. 

However, it is the "trial courts' independent responsibility to identify and weigh 

the aggravating and mitigating factors in fixing a just sentence." Id. at 151. 

"[T]he standard governing the downgrading of a defendant's sentence . . . 

is high." Megargel, 143 N.J. at 500. Further, it is "paramount that the sentence 

reflect the Legislature's intention that the severity of the crime now be the most 

single important factor in the sentencing process." Ibid. (citing State v. Hodge, 

95 N.J. 376, 379 (1984)). The basis for this principle is the need to "assure the 

protection of the public and the deterrence of others. The higher the degree of 

the crime, the greater the public need for protection and the more need for 

deterrence." Ibid. 

"Although the degree of the crime is the focus of the sentence, facts 

personal to the defendant may be considered in the sentencing process," such as 

"a defendant's role in the incident." Id. at 501. The judge also must assess 
11 A-1393-19

"whether there is a compelling reason to downgrade defendant's sentence in the 

interest of justice" separate from any mitigating factors. Id. at 501-02. 

Governed by these standards, we are satisfied plea counsel was not 

ineffective, despite that he was unable to obtain a downward departure. In fact, 

it is well settled that the mere fact defense counsel's strategy is unsuccessful is 

not sufficient to support a Strickland claim. See Bey, 161 N.J. at 251. 

Here, the record reflects that plea counsel made substantive arguments at 

sentencing for a downward departure based on mitigating factor nine. He 

encouraged the judge to "take a broader view of [defendant]" and see that "there 

is a capacity for him to both change and move forward with his life." Counsel 

further argued that defendant: is charitable in his community "by supporting 

church groups as well as toys for children and helping the homeless"; (2) "has 

taken responsibility for each of the allegations that he plead to"; (3) is a high 

school graduate; (4) was a "pleasure to deal with in many ways because of his 

maturity as well as his attitude"; and (5) "was the victim of a crime himself, 

having been shot in the leg approximately two and a half years prior at the same 

location as one of the incidents."

Defense counsel also arranged for defendant's girlfriend (the victim of 

defendant's terroristic threats) to testify at sentencing. She stated defendant had 
12 A-1393-19

performed charitable acts in support of the community, including hosting backto-school events and providing food for the homeless. She also testified that 

although defendant had made mistakes, the judge should "take into 

consideration that he is a good person" with a "very good heart." When 

questioned about the offense which led to her victimization, defendant's 

girlfriend stated she intended for the grand jury to dismiss the indictment for 

terroristic threats because "it was just a miscommunication" and "nothing 

happened." Defense counsel also provided the judge with "many letters" from 

defendant's family, friends, and members of the community in support of his 

request for a downward departure. Under these circumstances, we cannot 

conclude plea counsel's performance fell short of the prevailing professional 

norms, as required by Strickland. 466 U.S. at 688.

Even if defendant could establish that plea counsel's performance was 

deficient, he fails to satisfy the prejudice prong of Strickland. As the prosecutor 

noted at sentencing, defendant's most recent convictions "represent[ed] his 

[seventeenth, eighteenth] and [nineteenth] indictable convictions." Thus, the 

prosecutor argued aggravating factors three, six, and nine weighed against a 

downward departure. Further, the prosecutor emphasized that several of 

defendant's prior convictions involved "violent offenses like aggravated assault,
13 A-1393-19

unlawful possession of a handgun by a certain persons not to possess a handgun, 

conspiracy, [and] resisting arrest." The prosecutor also described defendant's 

plea bargain as a "sweetheart deal" and stated defendant "got three for the price 

of one" because of the concurrent sentencing contemplated under the plea deal. 

The judge agreed with the State's position at sentencing, finding "the 

aggravating factors outweigh[ed] the mitigating factors" and there was "no basis 

for downward departure from the sentence recommended." She noted 

defendant's criminal history, "does stretch back quite some time" to 1990 and 

that his convictions included "weapons offenses." Accordingly, we are satisfied 

defendant has not demonstrated there is a reasonable probability that if plea 

counsel employed a different strategy, the outcome of sentencing would have 

been different. See Strickland, 466 U.S. at 687. 

We also are not convinced defendant's speedy trial argument, as it relates 

to plea counsel's performance, should trigger appellate relief. As a preliminary 

matter, for the first time on appeal, defendant contends counsel was ineffective 

for failing to promptly review the surveillance video of the liquor store incident. 

We generally refuse to consider issues not presented to the trial court, State v. 

Alexander, 233 N.J. 132, 148 (2018), but we address defendant's claim here for 

purposes of complete review. 
14 A-1393-19

Criminal defendants have a right to a speedy trial. U.S. Const. amend. VI 

(incorporated against the states by U.S. Const. amend. XIV). The trial court 

balances four factors to determine if that right has been violated, namely: (1) 

length of the delay; (2) reason for the delay; (3) whether defendant asserted his 

right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo, 407 

U.S. 514, 530-31 (1972). "[N]one of the four factors . . . [is] either a necessary 

or sufficient condition to . . . finding . . . a deprivation of the right of speedy 

trial." Id. at 533. As such, we have "decline[d] to adopt a rigid bright-line tryor-dismiss rule" because the "facts of an individual case are the best indicators 

of whether a right to a speedy trial has been violated." State v. Cahill, 213 N.J. 

253, 270-71 (2013).

Regarding the first Barker factor, whether the delay was reasonable often 

depends on the nature of the charges. See Barker, 407 U.S. at 531 (noting, "the 

delay that can be tolerated for an ordinary street crime is considerably less than 

for a serious, complex conspiracy charge"). A delay of more than one year will 

presumptively trigger an analysis of all four Barker factors. Cahill, 213 N.J. at 

266. A court will also consider "the amount of time customarily required to 

dispose of similar charges," and the defendant has the burden of establishing 

such customs. Id. at 265 (citing Doggett v. United States, 505 U.S. 647, 651-52 
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(1992)). Still, courts refuse to decide "[h]ow long is too long . . . 'by sole 

reference to the lapse of a specified amount of time.'" State v. Detrick, 192 N.J. 

Super. 424, 426 (App. Div. 1983) (quoting State v. Smith, 131 N.J. Super. 354, 

360 (App. Div. 1974)).

As to the first Barker factor, defendant argues that by the time he entered 

his guilty pleas, he had been detained in the county jail for 177 days. He 

contends this was an unreasonable length of time to resolve his cases and 

violative of his right to a speedy trial. We do not agree. 

It is not uncommon for courts to tolerate a delay of more than one year 

before a case is tried. See State v. Gaikwad, 349 N.J. Super. 62, 88 (App. Div. 

2002) (seventeen-month delay in bringing a defendant to trial for computer theft 

charges). It bears emphasis that longer delays may "be tolerated for serious 

offenses or complex prosecutions." Cahill, 213 N.J. at 266. Of course, 

purposeful delay tactics weigh heavily against the State. Barker, 407 U.S. at 

531. Here, defendant faced nine charges under three indictments, which charges 

included aggravated assault and weapons offenses, and involved different 

victims. He was first indicted in March 2017, and resolution of his charges 

occurred less than a year later, in February 2018, when he entered his guilty 

pleas. Thus, the first Barker factor weighs against defendant.
16 A-1393-19

Regarding the second Barker factor, the court must consider the reasons 

for the delay. Cahill, 213 N.J. at 266. Here, it is uncontroverted that after 

defendant was indicted in March 2017, he was rearrested and indicted on two 

additional cases. Moreover, as defendant admits, technical difficulties delayed 

plea counsel's viewing of the surveillance video of the liquor store incident. But 

plea counsel subsequently arranged with the State to watch the video, and he 

engaged in negotiations with the State to globally resolve defendant's multiple 

charges. Notably, while defendant awaited resolution of the instant offenses, he 

also was serving an existing sentence. Thus, we are not satisfied the second 

Barker factor weighs in defendant's favor. 

Turning to the third Barker factor, a defendant is not required to assert the 

right to a speedy trial during pre-trial proceedings. Cahill, 213 N.J. at 266. 

However, a defendant's prior claim of unreasonable delay will be given "strong 

evidentiary weight." Barker, 407 U.S. at 531-32. Conversely, the "failure to 

assert the right will make it difficult for a defendant to prove that he was denied 

a speedy trial," since a defendant is more likely to complain if there is a serious 

deprivation of his or her rights. Ibid. 

Here, as the PCR judge noted, defendant "neither orally nor in any 

independent writing ever decried the length of time occasioned by the delay" in 
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resolving his case. She also found defendant was "quite aware . . . that justice 

delayed may[,] in effect[,] yield a better outcome." Thus, the third Barker factor 

also weighs against defendant.

Finally, regarding the fourth Barker factor, courts have identified three 

types of prejudice to consider, namely: "oppressive pretrial incarceration, 

anxiety and concern of the accused[,] and impairment of the defense." State v. 

Szima, 70 N.J. 196, 201 (1976). Here, we cannot conclude any delay in this 

matter caused defendant to suffer prejudice, particularly given the PCR judge's 

finding that "the ultimate resolution is a resolution that contemplated three 

indictments that may not have been available at an earlier period of time." Also, 

defendant fails to show he suffered "oppressive pretrial incarceration" because 

he was already incarcerated for an unrelated crime during plea negotiations. 

Further, while defendant may have suffered from anxiety and concern while 

awaiting trial on three indictments, his extensive criminal history, as well as his 

incarceration on an unrelated matter made him less vulnerable to such prejudice. 

Finally, defendant fails to show that any delay in resolving defendant's 

three indictments impaired his defense. For example, defendant has advanced 

no evidence to demonstrate plea counsel's delay in viewing the surveillance 

video impaired his defense, because the video only related to one of defendant's 
18 A-1393-19

three indictments, and admittedly, it "did not support a [theory of self-]defense" 

for charges arising from the liquor store incident. Also, once plea counsel 

watched the video and was satisfied it did not establish a self-defense theory, he 

was able to negotiate a global plea offer which contemplated concurrent 

sentences on five charges, with those sentences to run concurrent to defendant's 

existing sentence. Accordingly, none of the Barker factors support defendant's 

speedy trial argument. 

In sum, defendant has not demonstrated a violation of his speedy trial 

rights under the test in Barker, and has failed to establish ineffective assistance 

of counsel under Strickland. 

To the extent we have not addressed defendant's remaining arguments, we 

are satisfied they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.