State of New Jersey v. Jerome Boynton

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-3691-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEROME BOYNTON,

Defendant-Appellant.

_______________________

Submitted November 19, 2024 – Decided April 16, 2025

Before Judges Gooden Brown and Chase.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Indictment Nos. 15-11-

2015 and 15-11-2016.

Jennifer N. Sellitti, Public Defender, attorney for

appellant (Steven M. Gilson, Designated Counsel, on

the brief).

Raymond S. Santiago, Monmouth County Prosecutor,

attorney for respondent (Monica do Outeiro, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jerome Boynton appeals from the April 21, 2023, Law Division

order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

Following a 2018 jury trial, defendant was convicted of second-degree

sexual assault, N.J.S.A. 2C:14-2(b), and third-degree child endangerment,

N.J.S.A. 2C:24-4(a), as charged in Indictment No. 15-11-2015 (the first

indictment). The convictions stemmed from a 2015 incident during which

defendant had sexual contact with a seven-year-old girl. At trial, in addition to

the victim's testimony, the State presented a forensic scientist who was qualified

as an expert in DNA analysis.

In affirming defendant's convictions, in an unpublished opinion, we

recounted the expert's testimony as follows:

Christopher Szymkowiak, a forensic scientist,

testified for the State as an expert in forensic DNA

analysis. He examined . . . four samples [from the

victim's clothing] for both autosomal as well as Y-short

tandem repeat (Y-STR) DNA. Szymkowiak explained

that using autosomal DNA testing, an analyst can

conclude that someone is the source of a DNA profile,

meaning the analyst is "confident that the individual to

the exclusion of all . . . [other] people has left that

DNA." In contrast, because Y-STR DNA profiles are

not unique to a specific person and will be identical for

all males in a "paternal line," an analyst can only

conclude that "someone matches a profile" or that "they

[are] excluded," but "[cannot] do any source attribution

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because we know . . . that [the] male line all [have] that

same profile."

....

After Szymkowiak obtained a reference sample

of defendant's DNA, based on autosomal DNA

analysis, Szymkowiak excluded defendant as "a

possible contributor to the minor DNA profile

obtained" from the mixture found on both the [victim's]

underwear and . . . T-shirt samples. However,

Szymkowiak testified "the [Y-STR DNA] profile of

[defendant] matche[d] the major [Y-STR] DNA profile

obtained" in [the victim's] underwear samples. Based

on the data, Szymkowiak concluded defendant "[could

not] be excluded" as a contributor but conceded on

cross-examination his conclusion did not have much

statistical value in determining whether or not

somebody should be included or excluded because "a

lot of people could potentially have a match too."

Szymkowiak testified further that his testing revealed

there was "a second male who had contributed to the

DNA . . . found on the underwear" but he had no

"reference" sample "to compare that minor profile to."

[State v. Boynton, No. A-2574-18 (App. Div. Sept. 13,

2021) (slip op. at 10-12) (first, seventh, and twelfth

alterations added) (first, fourth, and fifth omissions

added) (footnotes omitted)].

We also affirmed defendant's aggregate ten-year prison sentence, subject to the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, id., slip op. at 2, 36, and the

Supreme Court denied certification, State v. Boynton, 249 N.J. 59 (2021).

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In 2019, immediately following the State's opening statement in a bench

trial, defendant entered a negotiated guilty plea to second-degree sexual assault,

as charged in Indictment No. 15-11-2016 (the second indictment). The charge

stemmed from another 2015 incident during which defendant had sexual contact

with a five-year-old girl. At the plea hearing, defendant's attorney told the judge

that he "read each of the questions [on the plea forms] line by line" with

defendant to ensure that he understood, and that defendant "signed off" on the

plea agreement. The plea form specified that the ten-year NERA sentence

recommended by the prosecutor would run "consecutive to defendant's sentence

on [Indictment No.] 15-11-2015." In addition, the prosecutor recited the terms

of the plea agreement on the record, including the fact that the senten ce would

"run consecutive to" defendant's sentence on the first indictment, as well as the

fact that the prosecutor would move to dismiss the remaining two counts of the

indictment at sentencing. 1

Thereafter, during the plea colloquy, after confirming that defendant read,

understood, initialed, and signed the plea forms, the judge reiterated that the

sentence imposed would "run consecutive" to the sentence on the first

1

The remaining counts consisted of first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a)(1), and second-degree child endangerment, N.J.S.A. 2C:24-

4(a).

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indictment. The judge explained to defendant that "regardless of what happens"

with defendant's then-pending appeal of the convictions on the first indictment,

"this plea will stand." The judge added that even if his appeal was successful,

the "only difference" for this case "would be a change in th[e] sentence because

this is potentially consecutive to that sentence." Defendant indicated that he

understood and provided a factual basis for the plea. Defendant told the judge

he was entering the plea knowingly and voluntarily, without force or coercion,

and with a full understanding of the nature of the charge, the State's proofs, the

terms of the agreement, and the consequences of the plea. Defendant also

expressed satisfaction with his attorney's representation and declined the judge's

offer for additional time to speak with his attorney.

Subsequently, in accordance with the plea agreement, the judge sentenced

defendant to ten years in prison, subject to NERA, to run consecutive to his

sentence on the first indictment.2 We later affirmed defendant's conviction and

sentence on a Sentence Only Argument calendar, pursuant to Rule 2:9-11, and

the Supreme Court denied certification. State v. Boynton, 247 N.J. 164 (2021).

2

A special sentence of parole supervision for life, N.J.S.A. 2C:43-6.4, and

restrictions under Megan's Law, N.J.S.A. 2C:7-1 to -23, were imposed on both

indictments.

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Defendant filed a timely PCR petition and was assigned counsel. In his

petition, defendant asserted that "[t]rial counsel was ineffective in failing to use

an expert witness during trial" to challenge the State's DNA expert witness on

the first indictment, and that plea counsel "never fully explained to [defendant]

what [a] consecutive sentence would mean as far as actual prison time" on the

second indictment. In support of the DNA claim, defendant acknowledged that

trial counsel had retained a DNA expert who had opined in a 2017 report that

the State's DNA results could not "be considered to be scientifically reliable."

However, the expert died prior to trial. Defendant submitted a 2023 report

prepared by a different DNA expert to support his contention that "there [were]

several deficiencies with the State's forensic examination that should have been

[brought] to the attention of the jury" through the production of a replacement

expert witness.

Following oral argument, the PCR judge found defendant failed to

establish a prima facie case of ineffective assistance of counsel (IAC) and denied

defendant's petition without an evidentiary hearing in an order entered on April

21, 2023. In an accompanying written opinion, the judge reviewed the facts and

procedural history and applied the governing legal principles. The judge found

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that despite trial counsel's failure to "retain[] the services of a new expert" to

replace the deceased expert,

[a] review of the trial transcript shows that trial

counsel demonstrated an exceptional familiarity with

the complexities of DNA analysis and engaged in a

lengthy and effective cross[-]examination of [the

State's expert], establishing that the major DNA

samples were matches of the victim and that several

other minor profiles from other samples did not match

the samples for defendant. In addition, counsel had [the

State's expert] confirm that Y-STR testing indicated the

presence of a second male profile that did not match

defendant. Trial counsel was successful in challenging

[the expert]'s failure to strictly follow the State Police

Laboratory's protocol manual regarding quantities of

DNA extract and sterile water mixture resulting in [the

expert]'s concession that reliability could be

undermined[.]

The judge further noted that trial counsel "capitalized" on the

shortcomings in the State's expert's testimony "by arguing during summation

that 'there [were] significant problems with the sample, the testing, and the

statistical evaluation of th[e] evidence,' and that [the State's expert's] finding

was not 'definitive' and was not 'reliable.'" (Last alteration added) (quoting

Boynton, slip op. at 26). In light of "the compelling concessions" trial counsel

obtained from the State's expert, the judge concluded "that trial counsel's failure

to retain an expert to confirm and testify to the findings in the [deceased defense

expert's] report" did not establish deficient performance.

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In rejecting defendant's IAC claim regarding his plea counsel, the judge

found the claim was "contradicted by defendant's statements during the plea

allocution," which included "defendant's very specific and repeated

acknowledgments that a consecutive sentence would be imposed." As such,

defendant's "bare assertion that plea counsel misled him" was unsupported. The

judge also found that defendant "failed to show that the outcome would have

been different without the purportedly deficient performance" because he

"clearly decided to not risk the possibility of a life sentence" after hearing "the

prosecutor's graphic opening statement of how she intended to prove that

[defendant] repeatedly sexually abused a five-year-old child." This appeal

followed.

On appeal, defendant raises the following arguments for our

consideration:

THIS MATTER MUST BE REMANDED FOR AN

EVIDENTIARY HEARING BECAUSE

DEFENDANT ESTABLISHED A PRIMA FACIE

CASE OF COUNSEL['S] INEFFECTIVENESS.

A. Trial Counsel Failed to Pursue an Expert

Witness to Challenge the Findings of the

State's DNA Expert Witness.

B. Plea Counsel Misadvised Defendant

Regarding the Meaning of a Consecutive

Sentence.

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We begin by setting out the guideposts that inform our review. "We

review the legal conclusions of a PCR judge de novo," State v. Reevey, 417 N.J.

Super. 134, 146 (App. Div. 2010), but "review under the abuse of discretion

standard the PCR court's determination to proceed without an evidentiary

hearing," State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013).

"[W]here . . . no evidentiary hearing was conducted," as here, "we may review

the factual inferences the [trial] court has drawn from the documentary record

de novo." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (citing

State v. Harris, 181 N.J. 391, 421 (2004)).

An evidentiary hearing is only required when (1) a defendant establishes

"a prima facie case in support of [PCR]," (2) the court determines that there are

"material issues of disputed fact that cannot be resolved by reference to the

existing record," and (3) the court determines that "an evidentiary hearing is

necessary to resolve the claims" asserted. State v. Porter, 216 N.J. 343, 354

(2013) (alteration in original) (quoting R. 3:22-10(b)); see also R. 3:22-10(e)(2)

(providing "[a] court shall not grant an evidentiary hearing . . . if the defendant's

allegations are too vague, conclusory or speculative"). Indeed, "[i]f the court

perceives that holding an evidentiary hearing will not aid the court's analysis of

whether the defendant is entitled to [PCR], . . . then an evidentiary hearing need

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not be granted." Brewster, 429 N.J. Super. at 401 (omission in original) (quoting

State v. Marshall, 148 N.J. 89, 158 (1997)).

"To establish a prima facie case, [a] defendant must demonstrate a

reasonable likelihood that his or her claim, viewing the facts alleged in the light

most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-

10(b). Moreover, a defendant must make this showing "by a preponderance of

the credible evidence." State v. Goodwin, 173 N.J. 583, 593 (2002). Rule 3:22-

2 provides five grounds for PCR. Applicable here is defendant's claim of a

"'substantial denial in the conviction proceedings'" of his "state or federal

constitutional rights," namely, his constitutional right to the effective assistance

of counsel. State v. Preciose, 129 N.J. 451, 459 (1992) (quoting R. 3:22-2(a)).

To establish a prima facie claim of the denial of the effective assistance

of counsel as contemplated under R. 3:22-2(a), a defendant must demonstrate

that the performance of counsel fell below the objective standard of

reasonableness set forth in Strickland v. Washington, 466 U.S. 668, 687-88

(1984), and adopted in State v. Fritz, 105 N.J. 42, 49-58 (1987), and that the

outcome would have been different without the purported deficient

performance. Stated differently, a defendant must show that: (1) counsel's

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performance was deficient; and (2) the deficient performance prejudiced the

defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58.

To satisfy the first prong, a defendant must "show[] that counsel made

errors so serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment" and "that counsel's representation fell

below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88.

"[I]n making the evaluation, a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance . . . ." Id. at 689. As such, a defendant "must overcome the

presumption that, under the circumstances, the challenged action 'might be

considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S.

91, 101 (1955)).

"Merely because a trial strategy fails does not mean that counsel was

ineffective." State v. Bey, 161 N.J. 233, 251 (1999). "No particular set of

detailed rules for counsel's conduct can satisfactorily take account of the variety

of circumstances faced by defense counsel or the range of legitimate decisions

regarding how best to represent a criminal defendant." Strickland, 466 U.S. at

688-89. For that reason,

an otherwise valid conviction will not be overturned

merely because the defendant is dissatisfied with

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[defense] counsel's exercise of judgment during the

trial. The quality of counsel's performance cannot be

fairly assessed by focusing on a handful of issues while

ignoring the totality of counsel's performance in the

context of the State's evidence of defendant's guilt. As

a general rule, strategic miscalculations or trial

mistakes are insufficient to warrant reversal "except in

those rare instances where they are of such magnitude

as to thwart the fundamental guarantee of [a] fair trial."

[State v. Castagna, 187 N.J. 293, 314-15 (2006) (second

alteration in original) (citations omitted) (quoting State

v. Buonadonna, 122 N.J. 22, 42 (1991)).]

See also Harrington v. Richter, 562 U.S. 86, 111 (2011) (noting that "Strickland

does not . . . requir[e] for every prosecution expert an equal and opposite expert

from the defense," and "[i]n many instances cross-examination will be sufficient

to expose defects in an expert's presentation").

For IAC claims arising from a guilty plea,

[p]lea counsel's performance will not be deemed

deficient if counsel has provided the defendant "correct

information concerning all of the relevant material

consequences that flow from such a plea." State v.

Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012)

(citing State v. Nuñez-Valdez, 200 N.J. 129, 138, 140

(2009)). Stated another way, counsel must not

"'provide misleading, material information that results

in an uninformed plea.'" State v. Gaitan, 209 N.J. 339,

353 (2012) (quoting Nuñez-Valdez, 200 N.J. at 140).

[State v. Vanness, 474 N.J. Super. 609, 624 (App. Div.

2023) (citation reformatted).]

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To satisfy the second Strickland/Fritz prong, "[t]he error committed must

be so serious as to undermine the court's confidence in the jury's verdict or result

reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, 466 U.S.

at 694). This prong generally requires that a defendant establish a "reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland, 466 U.S. at 694. In the

context of a guilty plea, to satisfy the second prong,

the defendant must establish a reasonable probability

that he or she would not have pled guilty but for

counsel's errors. Gaitan, 209 N.J. at 351. Thus, "a

petitioner must convince the court that a decision to

reject the plea bargain would have been rational under

the circumstances." State v. O'Donnell, 435 N.J. Super.

351, 371 (App. Div. 2014) (quoting Padilla v.

Kentucky, 559 U.S. 356, 372 (2010)).

[Vanness, 474 N.J. Super. at 624 (citation

reformatted).]

In that regard, "[s]olemn declarations in open court carry a strong presumption

of verity." State v. Simon, 161 N.J. 416, 444 (1999) (alteration in original)

(quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

Failure to meet either prong of the two-pronged Strickland/Fritz test

results in the denial of a petition for PCR. State v. Parker, 212 N.J. 269, 280

(2012) (citing State v. Echols, 199 N.J. 344, 358 (2009)). That said, "courts are

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permitted leeway to choose to examine first whether a defendant has been

prejudiced, and if not, to dismiss the claim without determining whether

counsel's performance was constitutionally deficient." Gaitan, 209 N.J. at 350

(citation omitted) (citing Strickland, 466 U.S. at 697); see also State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (explaining the burden

rests on the defendant requesting an evidentiary hearing to "do more than make

bald assertions that he was denied the effective assistance of counsel").

Applying these principles, we agree with the PCR judge that defendant

failed to establish a prima facie IAC claim. We discern no abuse of discretion

in the judge's denial of defendant's PCR petition without an evidentiary hearing,

and we affirm substantially for the reasons stated in the judge's comprehensive

and well-reasoned written decision.

Affirmed.

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