STATE OF NEW JERSEY VS. VERNON K. JOHNSON (08-01-0136, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1106-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VERNON K. JOHNSON,
Defendant-Appellant.
______________________________
Submitted June 6, 2017 – Decided June 26, 2017
Before Judges Fasciale and Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
08-01-0136.
Joseph E. Krakora, Public Defender, attorney
for appellant (Carolyn V. Bostic, Designated
Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Catherine A. Foddai,
Senior Assistant Prosecutor, of counsel and
on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from an August 4, 2015 order denying his
petition for post-conviction relief (PCR). We affirm.
We adduce the following facts from the evidence presented at
trial. Defendant committed three crimes in a three-day span. The
first crime occurred on September 15, 2007, at about 11:30 a.m.
Defendant entered a National Wholesale Liquidators (Liquidators)
store and spoke to the assistant manager about returning a large
television, which retailed for $499 plus tax. He explained that
he did not have a receipt for it. The assistant manager informed
defendant that refunds were not made without a receipt. Defendant
then told the assistant manager that the receipt was in his car,
and he would go out and get it. Defendant left the store with the
television, and did not return.
Defendant testified that he purchased a television at
Liquidators on September 14, 2007, with cash. According to
defendant, he was told on September 15, 2007, that he was only
entitled to seventy-five percent store credit without a receipt.
At that point, defendant decided not to return the television, he
left the store and put it in his Saturn. He then sold the
television to a friend.
The following day, September 16, 2007, defendant robbed a gas
station attendant. The attendant testified that a silver Saturn
vehicle pulled into a BP gas station. The attendant asked
defendant to open the gas cap several times. Defendant exited the
vehicle joking about money, and the attendant repeated his request
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for defendant to open the gas cap. Defendant then went back into
the vehicle and retrieved a gun wrapped in a plastic bag, which
he pointed at the attendant. Defendant then told the attendant
"if you shout I kill you. If you shout I kill you. The money, I
need all the money." Defendant went into the attendant's pocket,
took out money, and proceeded to leave. The attendant immediately
called the police, described the incident, gave them a description
of defendant and relayed a partial license plate number.
On September 17, 2007, at approximately 12:15 p.m., defendant
returned to Liquidators. Defendant attempted to return a large
television, retailed at $699, without a receipt. A worker at the
store called security and a manager to speak with defendant. An
argument ensued and defendant ran out of the building. The manager
provided the license plate number, make, and model of the car to
the police.
Defendant testified that he returned to Liquidators that day
to obtain a larger television set he had previously wanted, took
the television off a shelf at the store, and put it in his shopping
cart. He testified that he told the store employees he came back
to the store to buy a larger television set because he sold the
other television he tried to return. An argument ensued between
defendant and the employees, and defendant testified that he left
the store because he was upset with the treatment he received.
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The police used the information received from the manager of
Liquidators and traced the Saturn to defendant's girlfriend (the
girlfriend), who rented it from Enterprise Rent-A-Car. The Saturn
was parked in a parking lot at the girlfriend's apartment. The
police knocked on the door, and defendant answered the door. The
police advised defendant that they were investigating a series of
shoplifting incidents that occurred at Liquidators, and defendant
responded that he thought they were there investigating the
incident that took place at the BP gas station where he slapped a
man that took his money. Defendant was placed in custody and
Enterprise Rent-A-Car consented to a search of the Saturn. Police
found a toy gun and a white plastic bag inside the trunk of the
vehicle.
In January 2008, a grand jury indicted defendant with third-
degree shoplifting, N.J.S.A. 2C:20-11(b)(1) (Count One); first-
degree robbery, N.J.S.A. 2C:15-1 (Count Two); and third-degree
attempted shoplifting, N.J.S.A. 2C:20-11(b)(1) and N.J.S.A. 2C:5-
1 (Count Three).
In June 2010, after a seven-day trial, a jury convicted
defendant of all the charges. In September 2010, defendant
appeared before the court for sentencing. The court imposed a
four-year prison term on count one, which was consecutive to count
two and concurrent to count three; a fifteen-year prison term
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subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
with five years of parole supervision on count two; and a four-
year prison term on count three, which was concurrent to count
two.
Defendant appealed his conviction and challenged various
aspects of his sentence. State v. Johnson, No. A-2934-10 (App.
Div. July 18, 2012) (slip op. at 2). This court affirmed
defendant's robbery and attempted shoplifting convictions, but
reversed the third-degree shoplifting conviction. Ibid. We
explained that defendant could not have been convicted of third-
degree shoplifting because "the full retail value of the television
was below the statutory threshold of $500." Id. at 21. This
court amended the conviction to fourth-degree shoplifting. Id.
at 22. We also remanded for re-sentencing on all counts because
the sentencing court improperly considered aggravating factor
eleven, N.J.S.A. 2C:44-1(a)(11). Id. at 24-25.
In January 2013, defendant was re-sentenced to an eighteen-
month prison term on count one, consecutive to count two; a twelve-
year prison term subject to the NERA with five years of parole
supervision on count two; and a three-year prison term on count
three, concurrent to count two. In April 2013, defendant appealed
the sentence, and in April 2014, an Excessive Sentence Oral
Argument (ESOA) panel affirmed the re-sentence.
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Defendant filed a verified petition for PCR in December 2014.
The court heard argument on the petition for PCR in August 2015.
The judge rendered an oral opinion and denied defendant's petition
without an evidentiary hearing.
On appeal, defendant argues:
POINT I
THE PCR COURT ABUSED ITS DISCRETION BY DENYING
AN EVIDENTIARY HEARING WHERE THE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE
ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
A. The Defendant Was Denied the
Effective Assistance Of Counsel
When Trial Counsel Failed to Move
for Severance of the Robbery Charge
From the Shoplifting Charges
Pursuant to [Rule] 3:15-2(b).
B. Trial Counsel Provided
Ineffective Assistance of Counsel
By Failing to Move for a Judgment
of Acquittal After the Verdict
Pursuant to [Rule] 3:18-2 and/or to
Set Aside the Verdict as Against the
Weight of the Evidence Pursuant to
[Rule] 3:20-1 With Respect to the
Shoplifting Charges. (Raised in
Part Below).
C. The Defendant's Appellate
Counsel Was Ineffective by Failing
to Challenge the Denials of the
Defendant's Motions for Acquittal
on Direct Appeal. (Not Raised
Below)[.]
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POINT II
THE PCR COURT ABUSED ITS DISCRETION BY HOLDING
THAT THE DEFENDANT'S CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL WERE PROCEDURALLY BARRED
BY [Rule] 3:22-4.
Defendant raises the following points in his pro se
supplemental brief:
POINT I
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT
OF DUE PROCESS TO PARTICIPATE IN HIS TRIAL BY
BEING EXCLUDED FROM THE JURY SELECTION PROCESS
WHERE THE VOIR DIRE WAS HELD AT SIDEBAR, OUT
OF DEFENDANT'S PRESENCE.
POINT II
DEFENDANT WAS DENIED DUE PROCESS OF A FAIR
SENTENCING PROCESS BY ERRONEOUS, UNFAVORABLE
INFORMATION CONTAINED IN THE PRESENTENCE
REPORT.
POINT III
DEFENDANT WAS DENIED HIS RIGHT OF THE
EFFECTIVE ASSISTANCE OF COUNSEL BY BEING
EXCLUDED FROM THE JURY SELECTION PROCESS, AND
BY THE FAILURES TO ADDRESS THE INCORRECT
INFORMATION CONTAINED IN THE PRESENTENCE
REPORT. (Not Raised Below).
We conclude that defendant's arguments are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We affirm substantially for the reasons expressed by the judge in
his oral opinion. We add the following remarks.
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A defendant is entitled to an evidentiary hearing only when
he or she "has presented a prima facie [case] in support of [PCR,]"
meaning that "the defendant must demonstrate a reasonable
likelihood that his or her claim will ultimately succeed on the
merits." State v. Marshall, 148 N.J. 89, 158 (first alteration
in original) (quoting State v. Preciose, 129 N.J. 451, 462 (1992)),
cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88(1997). Defendant fails to demonstrate a reasonable likelihood
of success on the merits, and thus he is not entitled to an
evidentiary hearing.
For defendant to obtain relief based on ineffective
assistance grounds, he is obliged to show not only the particular
manner in which counsel's performance was deficient, but also that
the deficiency prejudiced his right to a fair trial. Strickland
v. Washington, 466 U.S. 668, 687, l04 S. Ct. 2052, 2064, 80 L. Ed.
2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).
He failed to meet this standard. We agree with the judge's
conclusion that defendant was not denied effective assistance of
counsel when trial counsel did not move to sever his charges, move
for an acquittal pursuant to Rule 3:18-2, or move to set aside the
verdict pursuant to Rule 3:20-1.
Defendant's claims are also barred under Rule 3:22-4.
Defendant does not meet prong one or three under Rule 3:22-4. He
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also fails to meet prong two. "Our courts will find fundamental
injustice when the judicial system has denied a 'defendant with
fair proceedings leading to a just outcome' or when 'inadvertent
errors mistakenly impacted a determination of guilt or otherwise
wrought a miscarriage of justice.'" State v. Nash, 212 N.J. 518,
546 (2013) (quoting State v. Mitchell, 126 N.J. 565, 587 (1992)).
Moreover "[t]o succeed on a fundamental-injustice claim, the
petitioner must make 'some showing' that an error or violation
'played a role in the determination of guilt.'" Ibid. (quoting
Mitchell, supra, 126 N.J. at 587). Here, defendant did not meet
this requirement. He has had two previous opportunities to appeal
both claims and there has been no newly discovered evidence.
We also agree with the PCR court, that despite the procedural
bar, defendant's severance claim would be barred on the merits.
Rule 3:7-6 provides that
[t]wo or more offenses may be charged in the
same indictment or accusation in a separate
count for each offense if the offenses charged
are of the same or similar character or are
based on the same act or transaction or on 2
or more acts or transactions connected
together or constituting parts of a common
scheme or plan.
However, if a defendant "is prejudiced by a permissible or
mandatory joinder of offenses or of defendants in an indictment
or accusation the court may order an election or separate trials
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of counts, grant a severance of defendants, or direct other
appropriate relief." R. 3:15-2(b).
In reviewing whether a trial judge erred by allowing two or
more offenses to be tried simultaneously, we "must assess whether
prejudice is present, and [the court's] judgment is reviewed for
an abuse of discretion." State v. Sterling, 215 N.J. 65, 73
(2013). "The test for assessing prejudice is 'whether, assuming
the charges were tried separately, evidence of the offenses sought
to be severed would be admissible under [N.J.R.E. 404(b)] in the
trial of the remaining charges.'" Ibid. (alteration in original)
(quoting State v. Chenique-Puey, 145 N.J. 334, 341 (1996)).
Our Supreme Court has set forth the following criteria for
admitting other-crimes evidence under N.J.R.E. 404(b):
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent prejudice.
[State v. Cofield, 127 N.J. 328, 338 (1992).]
The trial court's analysis under Cofield should only be disturbed
if there is "a 'clear error of judgment.'" State v. Gillispie,
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208 N.J. 59, 84 (2011) (quoting State v. Barden, 195 N.J. 375,
390-91 (2008)).
Here, the other crimes evidence would be admitted under
Cofield, and therefore defendant failed to prove that he was
prejudiced under prong two of Strickland. The other crimes
evidence is relevant to a material issue because it helps prove
defendant's identity. Moreover, defendant used the same vehicle
to commit all three crimes, referenced the robbery while he was
being questioned by police for the store thefts, and committed all
three crimes consecutively. The acts are similar in kind and
reasonably close in time. Furthermore, the evidence of the crimes
was clear and convincing; witness testimony was presented for each
crime at trial. The probative value outweighed the prejudice
because it helped prove defendant's identity in all the cases.
We also agree with the PCR court that defendant's claims,
that he was denied effective assistance of counsel when trial
counsel did not move for an acquittal pursuant to Rule 3:18-2 or
move to set aside the verdict pursuant to Rule 3:20-1, also fail
on the merits.
Here, there was sufficient circumstantial evidence for a jury
to find guilt. The State presented testimony from employees at
Liquidators, the victim at the gas station, and police officers
that responded to the thefts. The State also presented other
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videos and reports. When viewing the evidence in the light most
favorable to the State, the evidence would be sufficient to convict
defendant. See State v. Reyes, 50 N.J. 454, 459 (1967). It would
also not be a manifest denial of justice to allow the jury verdict
to stand given the evidence. R. 3:20-1. Therefore, defendant
failed to satisfy the second prong of Strickland.
Affirmed.
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