STATE OF NEW JERSEY VS. JERMAINE JOHNSON(06-05-1776, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-3225-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERMAINE JOHNSON,
a/k/a JERMAINE RESHID,
GERMAINE JOHNSON, JR.,
JERMAYNE JOHSON, JERAMINE
JOHNSON, MAINE,
Defendant-Appellant.
____________________________________
Submitted July 25, 2017 – Decided October 6, 2017
Before Judges Ostrer and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
06-05-1776.
Joseph E. Krakora, Public Defender, attorney
for appellant (John Douard, Assistant Deputy
Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Maura Murphy
Sullivan, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Jermaine Johnson appeals the November 18, 2015
order denying his petition for post-conviction relief (PCR). The
PCR court found that the petition was untimely under Rule 3:22-
12. We agree, and affirm.
I.
The following facts come from the transcripts of defendant's
plea hearing and sentencing hearing.
In 2005, defendant had sexual relations when age twenty-three
with B.Y., a fifteen-year old girl. B.Y. gave birth to a child.
Defendant was indicted for second-degree sexual assault, N.J.S.A.
2C:14-2(c)(4), and third-degree endangering the welfare of a
child, N.J.S.A. 2C:24-4(a).
Trial counsel negotiated a plea agreement that resulted in
the dismissal of the more serious second-degree sexual assault
charge, his sentence concern, his guilty plea to the less-serious
charge of third-degree endangering the welfare of a child, and the
prosecutor's recommendation of a probationary sentence which would
be concurrent to any sentence he received on his pending charge
for second-degree unlawful possession of a handgun without a
permit, N.J.S.A. 2C:39-5(b).
Pursuant to the plea agreement, a trial judge sentenced
defendant to five years of probation, twenty-five days in jail
2 A-3225-15T3
which defendant had already served, penalties, and assessments.
Defendant further agreed not to have any contact with B.Y. and her
family. Defendant's January 8, 2007 Judgment of Conviction (JOC)
stated that he was sentenced to parole supervision for life (PSL).
Defendant admitted he "was cited for a violation of parole
supervision for life" in 2011.1 Thereafter, on December 26, 2012,
and again on January 22, 2013, defendant signed a form setting
forth the "General Conditions" for "Parole Supervision for Life"
acknowledging:
I understand that pursuant to N.J.S.A. 2C:43-
6.4, my sentence includes a special sentence
of parole supervision for life. I understand
that during the service of parole supervision
for life I shall be in the legal custody of
the Commissioner of the Department of
Corrections and I shall be under the
supervision of the Division of Parole of the
State Parole Board.
On October 29, 2014, more than seven years and ten months
after his judgment of conviction, defendant filed a petition for
PCR. After hearing oral argument, Judge John T. Kelley denied
defendant's PCR petition. The court held that defendant's claims
1
This apparently related to defendant's use of a condom containing
yellow liquid to defraud a drug test ordered by his parole officer.
Defendant was convicted of third-degree defrauding the
administration of a drug test, N.J.S.A. 2C:36-10(d), and fourth-
degree possession of an instrument or substance to defraud the
administration of a drug test, N.J.S.A. 2C:36-10(e), and was
sentenced to eighteen months in prison.
3 A-3225-15T3
were time-barred under Rule 3:22-12(a); that he had failed to
demonstrate a prima facie case of ineffective assistance of
counsel; and that his claims relating to the constitutionality of
Megan's Law were procedurally barred under Rule 3:22-4(a).
Defendant appeals, arguing:
POINT I - THE TIME BAR IN RULE 3:22-12 SHOULD
BE RELAXED BECAUSE THE DELAY IN THIS CASE WAS
DUE TO EXCUSABLE NEGLECT, AND ENFORCEMENT OF
THE TIME BAR WOULD RESULT IN A FUNDAMENTAL
INJUSTICE.
POINT II - THE PETITION FOR POST-CONVICTION
RELIEF SHOULD HAVE BEEN GRANTED, OR, AT A
MINIMUM, AN EVIDENTIARY HEARING SHOULD HAVE
BEEN ORDERED.
A. The Record Is Sufficient To Grant
Mr. Johnson His Petition For PCR.
B. At A Minimum, Mr. Johnson Should
Have Been Afforded An Evidentiary
Hearing, As He Had Made A Prima
Facie Case For Ineffective
Assistance Of Counsel.
POINT III - PSL IS AN UNCONSTITUTIONAL
VIOLATION OF DUE PROCESS AND FUNDAMENTAL
FAIRNESS.
II.
A PCR court need not grant an evidentiary hearing unless "'a
defendant has presented a prima facie [case] in support of post-
conviction relief.'" State v. Marshall, 148 N.J. 89, 158
(alteration in original), cert. denied, 522 U.S. 850, 118 S. Ct.
140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie
4 A-3225-15T3
case, the defendant must demonstrate a reasonable likelihood that
his or her claim will ultimately succeed on the merits." Ibid.
The court must view the facts "'in the light most favorable to
defendant.'" Ibid.; accord R. 3:22-10(b).
If the PCR court has not held an evidentiary hearing, we
"conduct a de novo review." State v. Harris, 181 N.J. 391, 421
(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.
2d 898 (2005). We must hew to that standard of review.
To show ineffective assistance of counsel, a defendant must
satisfy the two-pronged test of Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted in
State v. Fritz, 105 N.J. 42, 53 (1987). In the context of a guilty
plea, the defendant must show "that (i) counsel's assistance was
not 'within the range of competence demanded of attorneys in
criminal cases'; and (ii) 'that there is a reasonable probability
that, but for counsel's errors, [the defendant] would not have
pled guilty and would have insisted on going to trial.'" State
v. DiFrisco, 137 N.J. 434, 457 (1994) (citation omitted) (quoting
Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 371, 88 L. Ed.
2d 203, 210 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949,
133 L. Ed. 2d 873 (1996); see also State v. Gaitan, 209 N.J. 339,
351 (2012). Moreover, to obtain relief under the second prong,
"a petitioner must convince the court that a decision to reject
5 A-3225-15T3
the plea bargain would have been rational under the circumstances."
State v. O'Donnell, 435 N.J. Super. 351, 3712 (App. Div.
2014)(quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct.
1473, 1485, 176 L. Ed. 2d 284, 297 (2010)).
III.
Defendant cannot show a reasonable likelihood of success
because defendant's PCR petition is untimely. See State v.
Brewster, 429 N.J. Super. 387, 398 (App. Div. 2013). Rule 3:22-
12(a)(1) has long provided that "[n]o petition shall be filed
. . . more than 5 years" after the entry of the challenged judgment
of conviction. Here, defendant challenges the validity of his
guilty plea underlying a judgment of conviction dated January 8,
2007. His PCR petition was filed October 29, 2014, more than
seven years and ten months after the date of his judgment of
conviction.
"Neither the parties nor the court may . . . enlarge the time
specified by . . . R. 3:22-12[.]" R. 1:3-4(c). Rule 3:22-12
permits a late filing only if the defendant "alleges facts showing
that the delay beyond said time was due to defendant's excusable
neglect and that there is a reasonable probability that if the
defendant's factual assertions were found to be true enforcement
of the time bar would result in a fundamental injustice." R.
6 A-3225-15T3
3:22-12(a)(1) (emphasis added); see R. 3:22-12(c).2 Such a claim
must be made in the verified petition, which must allege facts
sufficient to support it. State v. Cann, 342 N.J. Super. 93, 101-
02 (App. Div.), certif. denied, 170 N.J. 208 (2001); see R. 3:22-
8.
A.
Defendant first argues that the time bar should be relaxed
due to excusable neglect because of his confusion as to whether
he was subject to Community Supervision for Life (CSL) or PSL.
N.J.S.A. 2C:43-6.4 is a component of a series of laws commonly
referred to as Megan's Law. Prior to 2004, it provided for CSL
as a "special sentence" designed to "protect the public from
recidivism by sexual offenders." State v. Perez, 220 N.J. 423,
436-37 (2015). The statute was amended effective January 14,
2
As defendant did not file his PCR petition until October 2014,
it is governed by the current version of Rule 3:22-12, which the
Supreme Court made effective February 1, 2010. E.g, Brewster,
supra, 429 N.J. Super. at 398 n.3. "[C]ourt rules 'are given
retrospective application if vested rights are not thereby
disturbed.'" Shimm v. Toys from the Attic, Inc., 375 N.J. Super.
300, 304-05 (App. Div. 2005) (quoting Feuchtbaum v. Constantini,
59 N.J. 167, 172 (1971)); see also Kas Oriental Rugs, Inc. v.
Ellman, 407 N.J. Super. 538, 549-52 (App. Div.), certif. denied,
200 N.J. 476 (2009). Defendant had no vested right preventing the
Court from amending the Rule's procedures for PCR petitions. See
State v. Rose, 425 N.J. Super. 463, 468 (App. Div. 2012). Nor,
as set forth below, is it manifestly unjust to apply this version
of Rule 3:22-12. See James v. N.J. Mfrs. Ins. Co., 216 N.J. 552,
563 (2014).
7 A-3225-15T3
2004, when all references to CSL were replaced with references to
PSL. Id. at 437.
"[A] close examination of the pre- and post-[amendment]
versions of N.J.S.A. 2C:43-6.4" shows that the amendment made
"substantive change[s]" to the CSL post-sentence supervisory
scheme. Id. at 440. For example, a person subject to CSL is
supervised as if on parole, but violation of CSL is punishable
only as a fourth-degree crime. Id. at 441. In other words, "the
Parole Board cannot return a defendant to prison through the
parole-revocation process." Ibid. Rather, the Parole Board's
only option is to "refer the matter to the county prosecutor" who
can choose whether to prosecute. Ibid.
By contrast, a person on PSL is placed "'in the legal custody
of the Commissioner of Corrections [and] shall be supervised by
the Division of Parole of the State Parole Board' for life." Ibid.
(quoting N.J.S.A. 2C:43-6.4(b)). "A violation of PSL may be
prosecuted as a fourth-degree offense, N.J.S.A. 2C:43-6.4(d), but
it may also be treated as a parole violation, N.J.S.A. 2C:43-
6.4(b)." Ibid. Thus, the Parole Board also has the option to
8 A-3225-15T3
administratively revoke an offender's parole and send the offender
to prison without a criminal prosecution. Ibid.3
During defendant's October 3, 2006 plea hearing, the
prosecutor stated that under the plea bargain, "defendant has
agreed . . . that he's going to be under parole supervision for
life." Trial counsel stated the prosecutor's representations were
"true and accurate." However, the plea forms incorrectly
referenced CSL. Additionally, at the plea hearing and the January
5, 2007 sentencing hearing the trial judge stated that defendant
would receive CSL. However, defendant's JOC clearly stated
defendant was subject to PSL.
The regrettable inconsistency regarding use of the terms CSL
and PSL do not excuse defendant's delay in filing for PCR. First,
defendant was aware of the inconsistent references to CSL and PSL
as early as his plea hearing. We agree with the PCR court that
"defendant was on notice that the sentence included Megan's Law
and parole supervision for life, because the prosecutor explicitly
mentioned it during the plea hearing in 2006."
3
Defendant notes that further changes were made to the statute in
2014, but those changes are irrelevant to defendant's decision to
plead guilty in 2006. Moreover, the changes have not yet been
applied to defendant. Thus, we do not consider their applicability
to defendant.
9 A-3225-15T3
Moreover, as the PCR court noted, defendant knew he was
subject to PSL in 2011, when he admittedly was cited for a
violation of PSL. In any event, it would have been clear to
defendant that he was subject to PSL no later than December 26,
2012, when he signed a form stating the "General Conditions" for
"Parole Supervision for Life," and acknowledged being sentenced
and serving PSL. Nevertheless, defendant still waited until
October 29, 2014 to file for PCR.
To excuse his late filing, defendant relies on State v.
Schubert, 212 N.J. 295 (2012). However, Schubert has no
application to this case. Schubert addressed whether an offender
sentenced before the 2004 effective date of the PSL amendment
could have PSL retroactively imposed on him. By contrast,
defendant was sentenced in 2007 after the 2004 effective date of
the PSL amendment, so defendant was always governed by the
requirement that he be sentenced to PSL. Moreover, Schubert was
decided on October 22, 2012, more than two years before defendant
filed his PCR petition.
Defendant also argues that where "a defendant forbears from
initiating PCR proceedings within five years in favor of
successfully completing probation and moving on with his
rehabilitation, it would be unjust to deny him the opportunity to
present his claims on PCR on simply procedural grounds." However,
10 A-3225-15T3
defendant makes no such claim of forbearance in his certifications.
In any event, it does not constitute excusable neglect for ignoring
the five-year period to challenge his conviction.
Defendant waited to file his PCR petition more than seven
years and ten months after his judgment of conviction. "Absent
compelling, extenuating circumstances, the burden of justifying a
petition filed after the five-year period will increase with the
extent of the delay." Id. at 492 (quoting State v. Mitchell, 126
N.J. 565, 580 (1992)). Here, defendant has no valid reasons for
his delay of almost three years beyond the five-year period. See
State v. Dugan, 289 N.J. Super. 15, 21 (App. Div.) (finding
"defendant's delay in filing his petition was significant" and
inexcusable because he "delayed more than a year and a half after
expiration of the five year period"), certif. denied, 145 N.J. 373
(1996). The option of seeking PCR relief "could have been pursued
well before . . . and should have been known to defendant many
years ago. He simply did not avail himself of it in a diligent
fashion." State v. Milne, 178 N.J. 486, 494 (2004). Thus, we
agree with the PCR court that defendant has failed to show
excusable neglect.
B.
Defendant also failed to show that "enforcement of the time
bar would result in a fundamental injustice." R. 3:22-12(a)(1).
11 A-3225-15T3
Defendant would have received PSL if he pled or was found guilty
to either charged offense. Defendant does not claim innocence of
improperly touching and penetrating the fifteen-year-old victim
who became pregnant and gave birth.
He argues that he received ineffective assistance of counsel
in not clarifying if he was pleading guilty to CSL or PSL, and
that he would not have pled guilty if he had known he would be
sentenced to PSL. However, the plea agreement negotiated by trial
counsel was favorable to defendant.4
By pleading guilty to the less serious charge of third-degree
endangering the welfare of a child, defendant avoided a conviction
on the more serious charge of second-degree sexual assault, and
received a sentence of probation which was concurrent to any
sentence he would receive on his pending second-degree gun charge.
Had defendant been found guilty on all charges, he faced a possible
total sentence of 25 years of imprisonment. N.J.S.A. 2C:43-6(a).
Thus, it would be difficult for defendant to show that "a
decision to reject the plea bargain would have been rational under
the circumstances," Padilla, supra, 559 U.S. at 372, 130 S. Ct.
4
In fact, the plea agreement was so favorable to defendant that
during the sentencing hearing the trial judge stated he was "not
happy with this" plea agreement.
12 A-3225-15T3
at 1485, 176 L. Ed. 2d at 297, let alone show a fundamental
injustice.
Defendant alleges that at sentencing the court misinformed
him about the consequences of his plea, and that this information
created a fundamental injustice. However, any alleged
misinformation at sentencing could not have affected defendant's
earlier decision to plead guilty. Further, defendant waived any
argument regarding misinformation from the trial court by not
raising it on direct appeal. See R. 3:22-4(a).
Thus, defendant failed to show excusable neglect and
fundamental injustice as required by Rule 3:22-12(a)(1).
Therefore, he cannot excuse his failure to file his PCR petition
within five years. See R. 3:22-12(c); R. 1:3-4(c). Accordingly,
the PCR court properly denied his PCR petition. See Brewster,
supra, 429 N.J. Super. at 398.
C.
Defendant lastly tries to challenge the constitutionality of
PSL. However, a PCR petition is not "a substitute for appeal."
R. 3:22-3. "Any ground for relief not raised . . . in any appeal
taken [from the conviction] is barred from assertion" in a PCR
proceeding unless "(1) the ground for relief not previously
asserted could not reasonably have been raised in any prior
proceeding; or (2) [the] enforcement of the bar to preclude claims,
13 A-3225-15T3
including one for ineffective assistance of counsel, would result
in fundamental injustice[.]" R. 3:22-4(a). This rule is designed
to guard against piecemeal proceedings. Mitchell, supra, 126 N.J.
at 584-85.
Defendant cannot satisfy the exceptions set forth in Rule
3:22-4(a). Moreover, as set forth above, he cannot show
fundamental injustice. R. 3:22-4(a)(2). Thus, the PCR court
properly barred defendant's constitutional claim on this grounds
as well as untimeliness.
Affirmed.
14 A-3225-15T3