STATE OF NEW JERSEY VS. CARL R. JOHNSON (14-04-0336, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3080-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARL R. JOHNSON,
Defendant-Appellant.
_______________________
Submitted May 10, 2021 – Decided May 25, 2021
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 14-04-
0336.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen C. Sayer,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from a September 30, 2019 order denying his petition
for post-conviction relief (PCR) without an evidentiary hearing. Defendant
contends that his plea counsel rendered ineffective assistance of counsel. Judge
Joseph M. Chiarello entered the order and issued an oral opinion.
On appeal, defendant raises the following arguments:
POINT I
THE PCR [JUDGE] ERRED IN FAILING TO
REMAND [DEFENDANT'S] MATTER TO THE
TRIAL COURT SO THAT NEW COUNSEL MAY BE
APPOINTED AND HE COULD [RE-]ARGUE HIS
MOTION TO WITHDRAW HIS [OPEN] GUILTY
PLEA UNDER STATE V SLATER, 198 N.J. 145(2009).
POINT II
THE PCR [JUDGE] ERRED IN DENYING
[DEFENDANT'S] PETITION FOR [PCR] WITHOUT
AN EVIDENTIARY HEARING AS TESTIMONY IS
NEEDED FROM J.G. REGARDING HIS FAILURE
TO LOCATE AND INTERVIEW POTENTIAL ALIBI
WITNESSES.
We are unpersuaded by these arguments and affirm substantially for the reasons
expressed by Judge Chiarello. We add these remarks.
When a PCR judge does not hold an evidentiary hearing—like here—this
court's standard of review is de novo as to both the factual inferences drawn by
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the PCR judge from the record and the judge's legal conclusions. State v. Blake,
444 N.J. Super. 285, 294 (App. Div. 2016).
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong,
a defendant must establish that his counsel "made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." 466 U.S. at 687. A defendant must rebut the "strong presumption
that counsel's conduct [fell] within the wide range of reasonable professional
assistance[.]" Id. at 689. Thus, this court must consider whether counsel's
performance fell below an object standard of reasonableness. Id. at 688.
To satisfy the second Strickland/Fritz prong, a defendant must show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687. A defendant must establish "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's
performance has been so deficient as to create a reasonable probability that these
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deficiencies materially contributed to defendant's conviction, the constitutional
right will have been violated." Fritz, 105 N.J. at 58. Both the United States
Supreme Court and the New Jersey Supreme Court have extended the
Strickland/Fritz test to challenges of guilty pleas based on ineffective assistance
of counsel. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012); Missouri v. Frye,
566 U.S. 134, 140 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994).
Defendant must demonstrate with "reasonable probability" that the result would
have been different had he received proper advice from his attorney. Lafler, 566
U.S. at 163 (quoting Strickland, 466 U.S. at 694). Defendant did not satisfy
either prong of Strickland.
The PCR judge did not err by entering the order without conducting a
hearing. A defendant is only entitled to an evidentiary hearing when he "'has
presented a prima facie [claim] in support of [PCR],'" meaning that a defendant
must demonstrate "a reasonable likelihood that his . . . claim will ultimately
succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (quoting
State v. Preciose, 129 N.J. 451, 463 (1992)). A defendant must "do more than
make bald assertions that he was denied the effective assistance of counsel" to
establish a prima facie claim entitling him to an evidentiary hearing. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A defendant bears the
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burden of establishing a prima facie claim. State v. Gaitan, 209 N.J. 339, 350
(2012). We "view the facts in the light most favorable to a defendant to
determine whether a defendant has established a prima facie claim." Preciose,
129 N.J. at 462-63.
On the trial date, defendant pled guilty to first-degree armed robbery,
N.J.S.A. 2C:15-1(a)(1) and (2). The plea transcript reflects that defendant pled
guilty of his own free will and was not coerced. The plea judge explained to
defendant that his plea would be open, meaning that the sentencing judge would
determine the appropriate sentence, rather than counsel negotiating a plea deal.
The plea judge told defendant that the prison exposure on this first-degree
offense was between ten and twenty years, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. After an extensive colloquy at the hearing, the
plea judge found defendant pled guilty knowingly, voluntarily, and intelligently,
and accepted defendant's guilty plea.
On the sentencing date, plea counsel informed the judge that defendant
filed a motion to withdraw his guilty plea and that defendant believed plea
counsel pressured defendant to plead guilty. There is no evidence that counsel
pressured defendant to plead guilty. Although he argues otherwise, the plea
judge questioned defendant at the plea hearing and established defendant pled
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guilty voluntarily, knowingly, and without any coercion. The judge then
conducted a Slater analysis and denied defendant's motion. Among the detailed
findings, the judge determined that defendant articulated no colorable claim of
innocence, plea counsel appeared on the trial date prepared to select a jury and
start the trial, 1 defendant faced a consecutive prison sentence exposure due to
additional charges in the indictment, and the State would be prejudiced if the
judge granted the motion. The judge balanced the four factors and found the
interest of justice do not require withdrawing defendant's open guilty plea. The
sentencing judge then imposed the minimum sentence of ten years in prison
subject to NERA.
On this appeal, defendant's contention as to plea counsel seems more
about failing to persuade the judge on his earlier motion to withdraw his guilty
plea. That could have been raised in a direct appeal, which he never filed. As
a result, defendant's contention is barred by Rule 3:22-4. But on the merits of
the motion to withdraw his open guilty plea, and unlike Hayes, 2 the plea judge
1
As the PCR judge found, defendant's assertions that plea counsel failed to
investigate alibi witnesses was not meritorious and amounted to bald assertions.
The PCR judge stated "[t]here are potential witnesses; we don't know what they
would say."
2
205 N.J. 522 (2011).
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did a Slater analysis, which would have been affirmed on appeal, had he filed
one.
To the extent we have not addressed defendant's remaining arguments we
conclude that they are without sufficient merit to warrant discussion in a written.
R. 2:11-3(e)(2).
Affirmed.
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