STATE OF NEW JERSEY VS. BRENT A. JOHNSON (11-11-2778, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-2233-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRENT A. JOHNSON,
Defendant-Appellant.
_______________________
Submitted January 27, 2021 – Decided March 17, 2021
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No 11-11-2778.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Nicole L. Campellone, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Brent A. Johnson appeals the Law Division's August 1, 2019
order denying his post-conviction relief (PCR) petition without an evidentiary
hearing. He argues:
POINT I
CONTRARY TO THE PCR COURT'S FINDING,
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF IS NOT PROCEDURALLY
BARRED. (RAISED BELOW.)
POINT II
AS DEFENDANT'S ATTORNEY FAILED TO RAISE
MITIGATING FACTORS IN FAVOR OF HIS
CLIENT AT SENTENCING, HE IS ENTITLED TO
POST-CONVICTION RELIEF. (RAISED BELOW.)
POINT III
AS THERE WERE GENUINE DISPUTES OF
MATERIAL FACT, AN EVIDENTIARY HEARING
WAS REQUIRED.
We affirm, albeit for different reasons than those stated by the PCR judge in his
decision. See Hayes v. Delamotte, 231 N.J. 373, 387 (2018) (applying the well-
settled principle "that appeals are taken from orders . . . and not from opinions,
. . ." and that orders may be affirmed for reasons different from those set forth
by the trial court) (quoting Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199
(2001)).
A-2233-19
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I
On the evening of May 27, 2011, and into the early morning hours of the
next day, an incident occurred at an Atlantic City casino's parking garage
resulting in numerous charges against defendant and his co-defendants for
robbing and physical assaulting a man and sexually assaulting a woman. For
purposes of this opinion the incident's details need not be discussed, as they are
fully set forth in our unpublished decision pertaining to defendant's direct
appeal. State v. Cooper, Nos. A-2011-12T1, A-2988-12T1, A-3099-12T1 (App.
Div. Sep. 4, 2015), certif. denied, 224 N.J. 124 (2016). We affirmed defendant's
convictions and sentences for second-degree robbery, first-degree armed
robbery, second-degree conspiracy to commit armed robbery, second-degree
possession of a weapon for an unlawful purpose, third-degree unlawful
possession of a weapon, but vacated and remanded for retrial his convictions for
first-degree aggravated sexual assault and second-degree sexual assault. Id.,slip op. at 2-3, 41.
Following remand, the parties negotiated a plea agreement resulting in
defendant's resentencing on April 12, 2017. Defendant pled guilty to an
amended charge of third-degree aggravated criminal assault, and the State
dismissed the first-degree aggravated sexual assault charge. In accordance with
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the State's recommendation, defendant was sentenced to a five-year prison term,
subject to two-and-a-half years of parole ineligibility, concurrent to the fifteen-
year prison term left intact when we affirmed the other convictions. A judgment
of conviction (JOC) was entered on May 16, 2017, and amended on July 20,
2017, to properly reflect defendant's resentencing.
Defendant appealed, claiming the trial court should have reconsidered his
entire sentence and applied mitigating factor seven, no prior criminal history,
N.J.S.A. 2C:44-1(b)(7), as it did when it resentenced him on third-degree
aggravated criminal assault. On February 18, 2018, we denied the appeal on our
excessive sentence oral argument (ESOA) calendar, stating "the findings of fact
regarding aggravating and mitigating factors were based on competent and
credible evidence in the record . . . and that the court did not abuse its discretion
in imposing the sentence." See State v. Cassady, 198 N.J. 165 (2009); State v.
Roth, 95 N.J. 334 (1984). 1
1
A remand, with the State's consent, was directed to correct the trial court's
double imposition of a penalty.
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Seven months later, on September 26, 2018, defendant filed a pro se PCR
petition.2 The petition was later supplemented with a legal brief submitted by
defendant's assigned PCR counsel alleging that trial counsel was ineffective for
failing to argue mitigating factors eight, conduct was the result of circumstances
unlikely to recur, N.J.S.A. 2C:44-1(b)(8), and mitigating factor nine, character
and attitude indicate an unlikelihood of reoffending, N.J.S.A. 2C:44-1(b)(9),
based upon comments by defendant and his mother at his December 12, 2012
sentencing.3 Defendant also argued that at the April 12, 2017 resentencing,
counsel failed to present his accomplishments while incarcerated – obtaining an
associate's degree and several certificates of achievement and completion –
which demonstrate his unlikelihood to commit another offense. PCR counsel
later filed a notice of motion to modify defendant's sentence.
Following oral argument, the PCR judge reserved decision and thereafter
issued an order and written decision on August 1, 2019, denying relief on
procedural grounds without an evidentiary hearing. Noting defendant was
2
On May 4, 2017, defendant filed a pro se PCR alleging ineffective assistance
of trial and appellate counsel and an illegal and excessive sentence. On August
21, 2017, a different PCR judge dismissed the petition "without prejudice for
failure to comply with [Rule] 3:22-8."
3
The brief inadvertently states the sentencing occurred on May 27, 2011, the
date the offense occurred.
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initially sentenced on December 2, 2012, the judge determined his petition was
filed beyond the five-year time limit imposed by Rule 3:22-12(a)(1). The judge
further determined the claim was barred under Rule 3:22-4 because it could have
been raised on direct appeal. He also found that Rule 3:22-5 barred defendant's
excessive sentence claim because we previously affirmed his sentences in our
September 4, 2015 unpublished decision and February 8, 2018 ESOA order.
II
Defendant's September 26, 2018 petition claim regarding his December
12, 2012 conviction is untimely. It was filed more than five years after the
conviction date without proof of "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 injusti ce[.]" R.
3:22-12(a)(1)(A); State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013).
Yet, defendant's claim regarding his April 12, 2017 resentencing was timely
filed; defendant presented this claim well within the five-year time bar.
Nor was the resentencing claim procedurally barred by Rule 3:22-4
because it could have been raised on direct appeal. The Rule does not apply
since defendant asserted that his trial counsel was ineffective at resentencing in
not arguing mitigating factors eight and nine to obtain a lighter sentence for his
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plea to the amended charge of third-degree aggravated criminal assault. Despite
rejecting defendant's excessive sentence appeal on our ESOA calendar, we did
not address, nor could we in that proceeding, the contention that trial counsel
was ineffective for not raising mitigating factors because such claim was outside
the trial record. See State v. Preciose, 129 N.J. 451, 460 (1992).
Nonetheless, the dismissal of defendant's petition was correct. We review
de novo a PCR judge's factual findings made without an evidentiary hearing and
legal conclusions. State v. Harris, 181 N.J. 391, 415 (2004). We apply the two-
prong Strickland test, adopted in State v. Fritz, 105 N.J. 42 (1987). Strickland
v. Washington, 466 U.S. 668, 687 (1984). We consider, one, whether counsel's
performance was constitutionally deficient, and two, whether defendant suffered
resulting prejudice, that is, whether there is "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 694.
Defendant's reliance upon initial sentencing comments by him, his
mother, and trial counsel to support his claim that mitigating factors should have
been raised at his resentencing is without merit. Those comments could not be
considered at his resentencing because we previously rejected them in denying
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his excessive sentence claim in our unpublished September 4, 2015 decision.
Thus, they were properly barred under Rule 3:22-5.
Defendant's reliance upon his college degree and certifications obtained
in prison after his initial sentencing to support his mitigating factors argument
is equally without merit. He has not shown how these accomplishments would
support a reasonable probability that his sentence would have been different had
counsel argued them. There is nothing in the record demonstrating that th e
sentencing judge would have deviated from a negotiated plea agreement and
sentenced defendant to a lower term. See State v. S.C., 289 N.J. Super. 61, 71
(App. Div. 1996) (quoting State v. Sainz, 107 N.J. 283, 294 (1987) ("While the
sentence imposed must be a lawful one, the court's decision to impose a sentence
in accordance with the plea agreement should be given great respect, since a
'presumption of reasonableness . . . attaches to criminal sentences imposed on
plea bargain defendants.'")).
In fact, the plea agreement was, by any objective analysis, favorable to
defendant: dismissal of the first-degree aggravated sexual assault charge;
pleading to an amended charge of third-degree aggravated criminal assault; and
serving a five-year prison term, subject to two-and-a-half years of parole
ineligibility, concurrent to the fifteen-year prison term that he was already
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serving. Hence, the failure to raise the losing argument that his sentence should
have been lighter does not amount to deficient performance. See State v. Echols,
199 N.J. 344, 361 (2009) ("[T]he failure of trial counsel to object to the
comments . . . could not lead to the conclusion that there is a reasonable
probability that, but for the errors of trial . . . counsel, the outcome would have
been different."); State v. Worlock, 117 N.J. 596, 625 (1990) (citing Strickland,
466 U.S. at 688; Fritz, 105 N.J. at 52) ("The failure to raise unsuccessful legal
arguments does not constitute ineffective assistance of counsel.").
Finally, defendant was not entitled to an evidentiary hearing because he
did not establish a prima facie showing of "a reasonable likelihood that his . . .
claim [of ineffective assistance of counsel] will ultimately succeed on the
merits." State v. Marshall, 148 N.J. 89, 158 (1997).
Affirmed.
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