STATE OF NEW JERSEY VS. BRIAN E. KILLION (13-03-0720, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

S
                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5691-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRIAN E. KILLION,

     Defendant-Appellant.
_______________________

                   Submitted January 19, 2021 – Decided February 17, 2021

                   Before Judges Fasciale and Rothstadt.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment No. 13-03-0720.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Mark Zavotsky, Designated Counsel, on the
                   brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (William P. Cooper-Daub, Deputy Attorney
                   General, of counsel and on the brief; Sara M. Quigley,
                   Deputy Attorney General, of counsel and on the brief).

                   Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Brian E. Killion appeals from the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing. For the reasons that

follow, we affirm.

      A jury convicted defendant of thirty-four counts of a thirty-nine-count

indictment that charged him with various degrees of sexual assault, endangering

the welfare of numerous children, and related offenses. On March 27, 2014, the

trial judge sentenced defendant to an aggregate eighty-five-year prison term,

subject to an eighty-five percent parole disqualifier under the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2.

      Defendant appealed, and in an unpublished opinion we affirmed in part

and reversed in part, dismissing two counts, reversing "the sentencing under

NERA on three counts, and remand[ing] for resentencing and a further hearing"

regarding two other counts. State v. Killion, No. A-5025-13 (App. Div. April

26, 2017) (slip op. at 2). Defendant filed a petition for certification, which the

New Jersey Supreme Court denied on October 10, 2017. State v. Killion, 

231 N.J. 220

(2017).

      After our remand and defendant's resentencing on October 26, 2017, to an

eighty-year aggregate term with forty-five years subject to NERA, defendant


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                                        2
appealed again but this time limited it to his sentence. An Excessive Sentence

Panel of this court affirmed. State v. Killion, No. A-2747-17 (App. Div. June

4, 2018).

      The facts underlying defendant's convictions are set forth in our opinion

on direct appeal and need not be repeated here. See Killion, slip op. at 2-11.

For our purposes, we only note that on direct appeal, appellate counsel raised

eight issues in his merits brief, four additional arguments in the reply brief, and

his submissions were supplemented by defendant's pro se brief that addressed

five additional issues. Among the issues raised by appellate counsel were an

argument that the trial judge did not adequately cure comments by the prosecutor

that "portrayed the defendant and his trial attorney as liars" and a challenge to

the sufficiency of the evidence that supported defendant's conviction under the

indictment's fourth count. Among the issues raised by defendant in his appellate

pro se supplemental brief was a challenge to the jury charge that defendant

claimed was "erroneous," "not legally accurate," or "factually . . . supported by

the evidence."

      Defendant filed a PCR petition on August 1, 2018, in which he argued he

received ineffective assistance of counsel (IAC) at trial and on appeal. He also




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                                        3
raised arguments about his search and seizure rights being denied and the trial

judge's failure to "recuse himself."

      As to appellate counsel, he contended that his attorney failed to raise

issues about comments made by the prosecutor during closings about defendant

not testifying and about "Brady and discovery violations." He also argued that

appellate counsel "did not adequately communicate with" defendant, failed to

spend any time with him or accept his telephone calls, or "address any of

[d]efendant's concerns" or even "learn [d]efendant's name." In addition, he

stated that appellate counsel failed to pursue defendant's request to adjourn a

June 4, 2018 "hearing" so that he could discuss "strategy" with counsel. As to

trial counsel, while defendant raised numerous issues, they were unrelated to his

claims against appellate counsel or those he raises before us on appeal from the

denial of PCR.

      In an amended petition and brief filed on defendant's behalf, defendant

added that his appellate counsel "failed to argue that the trial judge erred by

denying [defendant's] motion for a mistrial following the prosecutor's closing

argument" based upon "the prosecutor wholly undermin[ing] the presumption of

innocence and the right to post-arrest silence." For that reason and those stated




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                                       4
by defendant in his earlier submission, PCR counsel argued that defendant was

entitled to a new trial.

      Judge Benjamin Podolnick entered an order filed on June 18, 2019,

denying defendant's petition without an evidentiary hearing.      The judge

explained his reasons in a comprehensive eighteen-page letter opinion that

accompanied his order. This appeal followed

      On appeal, defendant raises the following arguments:

             POINT I

             DEFENDANT      RECEIVED     INEFFECTIVE
             ASSISTANCE OF APPELLATE COUNSEL WHEN
             COUNSEL FAILED TO APPEAL PROSECUTORIAL
             MISCONDUCT ON THE COMMENTS REGARDING
             DEFENDANT'S PRESUMPTION OF INNOCENCE
             AND DEFENDANT'S CONSITUTIONAL RIGHT TO
             REMAIN SILENT.

                    A.     APPLICABLE LAW.

                  B.  APPELLATE  COUNSEL     WAS
             INEFFECTIVE FOR FAILING TO APPEAL
             DEFENDANT'S MOTION FOR A MISTRIAL
             BASED UPON COMMENTS MADE BY THE
             PROSECUTOR REGARDING HIS PRESUMPTION
             OF INNOCENCE.

                 C.   APPELLATE  COUNSEL   WAS
             INEFFECTIVE FOR FAILING TO APPEAL
             DEFENDANT'S MOTION FOR A MISTRIAL
             BASED UPON COMMENTS MADE BY THE


                                                                       A-5691-18
                                      5
           PROSECUTOR        REGARDING         HIS
           CONSTITUTIONAL RIGHT TO REMAIN SILENT.

      In a supplemental brief defendant filed directly, he adds the following

points:

           POINT I

           INEFFECTIVE ASSISTANCE OF COUNSEL
           DENIED DEFENDANT HIS CONSITUTIONAL
           RIGHTS TO A FAIR TRIAL AND EFFECTIVE
           COUNSEL.

           INEFFECTIVE ASSISTANCE OF COUNSEL DUE
           TO FAILURE TO ARGUE A CONFUSING,
           INCONSISTENT AND CONTRADICTORY JURY
           CHARGE THAT VIOLATED DEFENDANT'S
           RIGHTS REQUIRING A NEW TRIAL.    (NOT
           RAISED BELOW).

           APPELLATE ATTORNEY WAS INEFFECTIVE
           DUE TO FAILURE TO RECOGNIZE AND ARGUE
           THE STATE'S FAILURE TO MEET ITS BURDEN OF
           PROOF OF GUILT BEYOND REASONABLE
           DOUBT. (NOT RAISED BELOW).

           POINT II

           NEWLY DISCOVERED EVIDENCE REQUIRES A
           NEW TRIAL.

           POINT III

           PCR COUNSEL FAILED TO                   MEET     THE
           STANDARD SET BY R. 3:22-6(d).



                                                                       A-5691-18
                                     6
      We are not persuaded by any of defendant's contentions about appellate

counsel; as to the balance of these arguments, we conclude that they are not

properly before us as they were not raised before the PCR judge or are not

cognizable in a first petition for PCR, or they are without any merit.

      We review de novo an appeal from the denial of PCR without an

evidentiary hearing. State v. O'Donnell, 

435 N.J. Super. 351

, 373 (App. Div.

2014). As a reviewing court, we "can conduct a de novo review of both the

factual findings and legal conclusions of the PCR court . . . [because] [a]ssessing

IAC claims involves matters of fact, but the ultimate determination is one of

law." State v. Harris, 

181 N.J. 391

, 419 (2004).

      "The standard for an ineffective assistance of counsel claim is . . . the

same under both the United States and New Jersey Constitutions." State v.

Gideon, __ N.J. __, __ (2021) (slip op. at 14-15). To establish a violation of the

right to the effective assistance of counsel, a defendant must meet the two-part

test articulated in Strickland v. Washington, 

466 U.S. 668

(1984), and adopted

in State v. Fritz, 

105 N.J. 42

(1987). "First, the defendant must show that

counsel's performance was deficient. . . . Second, the defendant must show that

the deficient performance prejudiced the defense." 

Strickland, 466 U.S. at 687

.




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                                        7
      To meet the first prong, a defendant must show "that counsel made errors

so serious that counsel was not functioning as the 'counsel' guaranteed . . . by

the Sixth Amendment."

Ibid. Reviewing courts indulge

in a "strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance."

Id. at 689.

The second prong of the Strickland/Fritz

test requires the defendant to show that counsel's errors created a "reasonable

probability" that the outcome of the proceedings would have been different if

counsel had not made the errors. 

Strickland, 466 U.S. at 694

.

      The Strickland/Fritz two-pronged standard also applies to claims of

ineffective assistance of appellate counsel. State v. Gaither, 

396 N.J. Super. 508

, 513 (App. Div. 2007). The hallmark of effective appellate advocacy is the

ability to "winnow[] out weaker arguments on appeal and focus[] on one central

issue if possible, or at most on a few key issues." Jones v. Barnes, 

463 U.S. 745

,

751-52 (1983). A brief that raises every colorable issue runs the risk of burying

good arguments in a "verbal mound made up of strong and weak contentions."

Id. at 753.

Importantly for purposes of this appeal, it is well-settled that failure

to pursue a meritless claim does not constitute ineffective assistance. State v.

Webster, 

187 N.J. 254

, 256 (2006). Appellate counsel has no obligation to raise

spurious issues on appeal.

Ibid. A-5691-18 8 With

these guiding principles in mind, we turn to defendant's contention

about appellate counsel's IAC for his failure to appeal from the denial of trial

counsel's motion for a mistrial that was based on two comments made by the

prosecutor during summation.          One comment allegedly regarded his

presumption of innocence and the other his right to remain silent. Defendant

argues that had the issue been raised on direct appeal then a further review could

have been conducted under the plain error standard, which he maintains he

would have met. We disagree.

      At trial, following closing arguments, defense counsel moved for a

mistrial based on the two allegedly improper statements made by the prosecutor.

The trial judge denied the motion and agreed to give curative instructions .

      In the first statement, the prosecutor did not expressly mention defendant

not testifying but addressed the numerous years over which defendant

committed his crimes. In doing so, she stated that defendant "thinks he's smart

because he's gotten away with this for [sixteen] years, but he's not that smart

because he's sitting right there." The trial judge denied the motion for a mistrial

but issued a curative instruction that stated the following:

            You may have heard a reference made during closings,
            something about the defendant can't be considered
            smart because he's sitting here, and I'm telling you that's
            an improper comment and you shouldn't consider that,

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                                        9
            the defendant has no burden to present anything to you
            whatsoever. He need not answer the charge in any way.
            The fact that he's here in court is as a result of the
            indictment, and I told you about the indictment, it's a
            charging document requiring him to answer the charges
            made by the State. So you're not to conclude in any
            way that he must therefore be guilty because he's here
            in court, or he somehow did something wrong just
            because he's been charged. It's for you to determine
            whether or not he's guilty of the offenses charged based
            only upon the evidence.

      On PCR, Judge Podolnick reviewed the comment, agreed it was improper,

and considered the law applicable to prosecutorial misconduct, but found in light

of the trial judge's curative instruction that "no prejudice existed to [defendant]

once this curative instruction was delivered."

      The second challenged comment made by the prosecutor during

summation related to an intercepted telephone call between the mother of one

of the victims and defendant. The prosecutor stated "sure [the mother] told him

off that night, and what did she tell us, and she was the only one who talked

about the phone call and she told us [defendant] said whatever [the victim] said

I did, I did." The trial judge denied the motion for a mistrial but gave the

following curative instruction:

            [Y]ou may have heard a comment made during closing
            arguments regarding the only evidence or testimony
            you heard about the consensual [call] from [the victim's
            mother] and no one else, and perhaps you might then

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                                       10
             conclude why didn't we hear from the other person on
             the consensual [call] which allegedly is the defendant.
             Again, the defendant has no obligation to say or do
             anything here today, and that was an improper comment
             and I'm going to ask you to disregard it in its entirety,
             and I'm going to give you instructions about how you
             may not use the defendant's decision not to testify
             against him in any way, and pay close attention to that
             instruction when I'm giving it to you in just a few
             moments in the charge.

      The trial judge's final charge to the jury also included the Model Jury

Charge as to defendant's election to not testify at trial.1

      On PCR, Judge Podolnick noted that "it is clear from the transcript that

once the objection was made by defense counsel, the trial judge did not believe

that the prosecutor was attempting to comment on the defendant's right to

silence." Rather, the trial judge believed the statement was a direct response to

defense counsel's argument that the victim's mother had misrepresented the

nature of the call with defendant. The PCR judge observed that "it [was] quite

possible that the prosecutor was merely stating a fact and not intending to

comment on the defendant's right to silence." Judge Podolnick concluded that

insofar as the prosecutor's remarks on summation had any potential to prejudice

defendant, the trial judge's curative instructions eradicated that potential.


1
 Model Jury Charges (Criminal), "Defendant's Election Not to Testify" (rev.
May 4, 2009).
                                                                                A-5691-18
                                        11
      Judge Podolnick also concluded that the outcome of the proceedings

would not have been different but for appellate counsel's decision to forgo the

issues on direct appeal. He concluded that even if appellate counsel raised the

issue, we "would have had no basis to overturn [defendant's] conviction on

appeal." According to the PCR judge, defendant had "not shown that the

outcome of the proceedings would have been different but for appellate

counsel's decision not to raise this issue on direct appeal. The [c]ourt thus finds

that appellate counsel was not ineffective for failing to raise this issue on direct

appeal."

      Based on this record, we conclude from our de novo review that defendant

failed to make a prima facie showing of ineffectiveness of counsel within the

Strickland/Fritz test, substantially for the reasons expressed by Judge Podolnick

in his thorough decision. Accordingly, the judge also correctly concluded that

an evidentiary hearing was not warranted. See State v. Preciose, 

129 N.J. 451

,

462-63 (1992).

      Turning to defendant's argument that appellate counsel did not raise an

issue on appeal about his conviction under the indictment's fourth count, we

conclude his contention is belied by the record, as that issue was in fact raised

and we rejected it in our earlier opinion. See Killion, slip op. at 14, 17-20.


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Moreover, as to defendant's arguments relating to jury instructions and newly

discovered evidence, we conclude they are not subject to our review as

defendant failed to raise them before the PCR judge. See State v. Robinson, 

200 N.J. 1

, 20 (2009). And, as to his contention about PCR counsel's alleged IAC,

such claims are better addressed in a second petition under Rule 3:22-6(d). State

v. Hicks, 

411 N.J. Super. 370

, 376 (App. Div. 2010) (citing State v. Rue, 

175 N.J. 1

, 4 (2002)).

      To the extent we have not otherwise specifically addressed any of

defendant's remaining arguments, we conclude they are without sufficient merit

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

      Affirmed.




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                                      13

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