STATE OF NEW JERSEY VS. JOHNNY J. FERGUSON(05-07-1611, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-4949-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHNNY J. FERGUSON,
Defendant-Appellant.
______________________________
Submitted October 17, 2016 – Decided June 8, 2017
Before Judges Fisher and Ostrer.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 05-07-1611.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
In this appeal from the denial of his petition for post-
conviction relief (PCR), defendant Johnny Ferguson collaterally
challenges his conviction of third-degree burglary, N.J.S.A.
2C:18-2, third-degree attempt to endanger the welfare of a child,
N.J.S.A. 2C:5-1 and 2C:24-4(a), and fourth-degree resisting
arrest, N.J.S.A. 2C:29-2(a). In his plea hearing, defendant
admitted that he entered a home in Asbury Park without permission
at around midnight, entered a bedroom where three children were
asleep, pulled down his pants, and ejaculated onto the underwear
and bedding of a sleeping girl. One of the children later awoke
to find defendant asleep on the bed with his genitals exposed.
Pursuant to his plea agreement, the court sentenced defendant
to consecutive terms of four years on the burglary and attempted
endangering charges, with an aggregate parole ineligibility period
of four years. The court also sentenced him to a concurrent one-
year term of imprisonment on his resisting arrest charge. In
addition, the court imposed parole supervision for life (PSL).
The court entered the judgment of conviction on June 8, 2006.
Defendant filed his pro se petition in April 2014, well beyond
the five-year deadline to file a PCR petition.1 See R. 3:22-12.
He asserted that his conviction did not qualify for PSL. He noted
that since his release, he had been twice convicted for violating
PSL.
1
The petition was dated April 9, 2014. The precise date of filing
is not reflected in the record. He was assigned counsel in July
2014.
2 A-4949-14T2
In an attorney-assisted brief, defendant argued that his
neglect in filing his petition within the five-year period was
reasonable because he was not aware of the consequences of his
plea until he had been paroled from prison. He also argued that
his allocution did not present a sufficient factual basis for his
endangering conviction, which had qualified him for PSL. Last,
he argued that his trial attorney was ineffective in failing to
recognize this insufficiency and convincing him to plead guilty.
The PCR court held that defendant's petition was time-barred
by Rule 3:22-12. The court specifically noted that defendant's
alleged ignorance of the PSL consequences of his plea was belied
by the detailed colloquy with the court during the plea hearing.
Furthermore, defendant's challenge to the factual basis of his
plea was barred by Rule 3:22-4 because he could have raised it on
direct appeal. The court also rejected a contention that
defendant's counsel was ineffective because he failed to provide
any evidence of his counsel's allegedly deficient performance.
On appeal, defendant argues the following points:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED BECAUSE DEFENDANT
ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE
THAT HIS SIXTH AMENDMENT RIGHT TO BE PROTECTED
BY TRIAL COUNSEL FROM ENTERING A GUILTY PLEA
TO A CRIME HE DID NOT COMMIT, AND HIS SIXTH
AMENDMENT RIGHT TO BE PROTECTED BY TRIAL
3 A-4949-14T2
COUNSEL FROM BEING IMPROPERLY SENTENCED TO
PAROLE SUPERVISION FOR LIFE, WERE VIOLATED.
POINT II
THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED BECAUSE THE PCR COURT
MISAPPLIED THE PROCEDURAL BARS OF R. 3:22-4
AND R. 3:22-12.
Defendant's appeal lacks sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We limit
ourselves to the following brief comments.
Defendant failed to establish both excusable neglect and a
fundamental injustice to justify consideration of his petition
beyond the five-year time limit that Rule 3:22-12 imposes. Not
only is defendant's argued ignorance of the PSL consequences of
his plea belied by the plea colloquy, it is also unsupported by
any competent evidence in the record. Defendant relies only on
his counsel's certification, upon information and belief, that
defendant was unaware of the consequences of his plea until his
parole. See R. 1:6-6. Furthermore, defendant's alleged belated
discovery that he had allegedly received inadequate advice as to
the PSL consequences of his plea does not constitute excusable
neglect. See State v. Brewster, 429 N.J. Super. 387, 400 (App.
Div. 2013).
In any event, we discern no inadequacy in the factual basis
of defendant's endangering conviction that would warrant a finding
4 A-4949-14T2
that a fundamental injustice occurred, see State v. Nash, 212 N.J.
518, 547 (2013) (stating that a "fundamental-injustice claim"
involves "some showing that an error or violation played a role
in the determination of guilt" (internal quotation marks and
citations omitted)), or a finding that defendant's trial counsel
was ineffective based on "errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v.
Fritz, 105 N.J. 42, 58 (1987).
Defendant knowingly engaged in sexual conduct with a child
by ejaculating on her while she slept. Such conduct "had the
capacity to impair or debauch the morals of the child." State v.
Bryant, 419 N.J. Super. 15, 18 (App. Div. 2011); see also N.J.S.A.
2C:24-4(a) (defining endangering the welfare of a child to include
"engag[ing] in sexual conduct which would impair or debauch the
morals of the child"). Contrary to what defendant seems to
suggest, it is of no consequence that the victim was asleep when
he ejaculated. Defendant expressly admitted his conduct was the
sort that would impair or debauch a child's morals. Particularly
inasmuch as defendant pleaded guilty to attempt, it is of no moment
that the child did not awake to see defendant ejaculate. Cf.
State v. Breitweiser, 373 N.J. Super. 271, 280-81, 283-85 (App.
5 A-4949-14T2
Div. 2004) (affirming sexual assault conviction where the
defendant stood closely behind an eight-year-old girl in a
supermarket and masturbated under his clothes, but the child did
not actually see the defendant's conduct), certif. denied, 182
N.J. 628 (2005).
Affirmed.
6 A-4949-14T2