                                NOT FOR PUBLICATION WITHOUT THE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-2657-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KEVIN LLOYD, a/k/a
CHRIS BARRETT, and
DEVIN KEITH,

          Defendant-Appellant.


                   Submitted May 12, 2020 – Decided June 26, 2020

                   Before Judges Hoffman and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 09-10-2752.

                   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).
             Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant Kevin Lloyd appeals from the denial of his petition for post -

conviction relief (PCR), contending trial and appellate counsel were 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 chased by the

shooter through a shopping center into a parking lot across the street and into a

residential area. Id. at 1-2. Two security officers working in the mall described

the shooter to police. Id. at 3.

      Surveillance footage was 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 around during

the chase and therefore he did not know who the shooter was.


                                                                         A-2657-18T1
                                        2
       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 him by the name "Mousey." During

trial, however, Sterling said he had no recollection of the events surrounding the

shooting, it had occurred before he arrived at the mall and he had no recollection

of the statement he had given to police. After a N.J.R.E. 104 hearing, the court

admitted Sterling's prior recorded 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 who the shooter was, and it was not defendant.

During an evidentiary hearing, Smith testified he lied to the grand jury because

he was scared of the shooter. Smith admitted he was incarcerated with defendant

in the same correctional facility for approximately eighteen months although he

denied knowing defendant was in the jail or that defendant was awaiting trial

for shooting him. In denying the motion for a new trial, the trial court found

Smith's recantation of testimony was not credible or reliable.




                                                                          A-2657-18T1
                                        3
      Defendant was sentenced to life in prison without parole. On appeal, we

affirmed the convictions but remanded for resentencing. 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:43-7.2. 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-2803-17 (App. Div.

Dec. 5, 2018). The Supreme Court thereafter denied defendant's petition for

certification. State v. Lloyd, 238 N.J. 357 (2019).

      Defendant filed a pro se PCR petition 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 court granted an evidentiary hearing. In addition to defendant,

a paralegal from defendant's trial counsel's office testified at the hearing in

March 2018. Defense counsel had passed away prior to the proceeding.




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                                         4
      In an oral decision issued August 22, 2018, 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 questions posed, argumentative, at

times confrontational and at times attempted to avoid the questions asked." The

court characterized defendant's testimony as "lack[ing] total credibility or

reliability."

      In addressing each of defendant's allegations of ineffective assistance of

trial counsel, the PCR court found counsel had made decisions and employed

trial strategies "well within [his] purview."      Defendant proffered names of

witnesses that he stated should have been interviewed or called to testify.

However, defendant failed to explain what testimony these witnesses might have

offered or how their testimony could have affected the outcome of the case. The

court stated that defendant's allegations were "bald assertions," unsupported by

any facts. The PCR court also reviewed the allegations of ineffective assistance

against appellate counsel and rejected them, finding no deficiency in counsel's

representation.

      In conclusion, the PCR court stated, "Having presided over th[e] trial of

this matter there is no doubt in this [c]ourt's mind that [defendant] was convicted


                                                                              A-2657-18T1
                                          5
by a jury of his peers on the overwhelming evidence of guilt presented by the

State as opposed to any alleged ineffective assistance of either trial or appellate

counsel." The court noted the surveillance video, statements of witnesses, the

identification of defendant as the shooter by witnesses and Sterling, and the

DNA evidence. The PCR petition was denied.

      On appeal, defendant presents the following issues:

            TRIAL COUNSEL'S NEGLECT TO ADEQUATELY
            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, EVIDENTIARY
            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  THE

                                                                           A-2657-18T1
                                        6
APPELLANT'S SIXTH AND FOURTEENTH
AMENDMENT RIGHTS 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
GRANTED

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 GUIDELINE
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
APPELLANT'S INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM WHERE TRIAL COUNSEL
ADMITTED THAT HE WAS INEFFECTIVE BY
INITIALING AND WRITING ON TWO SHEETS OF

                                            A-2657-18T1
                    7
            PAPER SEVERAL ISSUES WHERE HE WAS
            INEFFECTIVE, 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 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 was 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 trial 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,

610 (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 of a defense DNA

                                                                          A-2657-18T1
                                        8
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 challenges his trial and appellate counsel'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.


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                                        9
Preciose, 129 N.J. 451, 462 (1992). Any remaining arguments are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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