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State v. Johnson

Decided: December 16, 1993.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JESSE O. JOHNSON, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.

King, A.m. Stein and A.a. Rodriguez.*fn1The opinion of the court was delivered by King, P.J.A.D.

King

[269 NJSuper Page 278] The State appeals from an order of June 1, 1993, granting defendant post-conviction relief, R. 3:22, setting aside the judgment of conviction for armed robbery entered under Gloucester County Indictment # I-0614-81 on August 5, 1988, and dismissing the indictment with prejudice. On June 17 we granted a stay of this order pending appeal, accelerated the appeal, and heard argument on the first available calendar after the appeal was perfected. We conclude that the Law Division Judge erred as a matter of law, reverse and reinstate the conviction. We find no violation of the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, and no valid ineffective assistance of counsel claim which justify dismissal of the indictment.

I

Defendant was found guilty on January 25, 1988 on a charge of armed robbery committed in Mantua Township, Gloucester County, on February 16, 1982. The conviction was affirmed by this court on November 27, 1990, and a petition for certification was denied on May 1, 1991. Defendant was serving an extended 24-year term with eight years' parole ineligibility, imposed on August 5, 1988, when his petition for post-conviction relief was granted on June 1, 1993.

Our inquiry focuses on the 25-month period from 1982 to 1984 when defendant was serving a sentence in the Commonwealth of Pennsylvania for another crime. During this period, New Jersey allegedly failed to pursue a request, initiated by a detainer filed by the Gloucester County prosecutor in Media, Delaware County, to obtain defendant to stand trial in New Jersey for the 1982 robbery in Mantua.

The material facts are contained in a somewhat murky and meager stipulation agreed upon by the parties. These facts are incorporated in the written opinion of the Law Division Judge dated May 28, 1993, and were confirmed to a large extent at a lengthy oral argument in the Law Division which took place on November 6, 1992.

On February 26, 1982 defendant was arrested on Pennsylvania criminal charges in Delaware County, Pennsylvania -- just across the Delaware River from Gloucester County, New Jersey. On March 8, 1982, Superior Court Judge Samuel H. Bullock, who later represented defendant as counsel at the trial for this February 1982 Mantua robbery charge, "authorized a detainer against defendant for charges arising . . . [in Mantua,] New Jersey for robbery, possession of a weapon for an unlawful purpose, and receiving stolen property." On April 6, 1982 defendant petitioned for "a writ of habeas corpus in Delaware County, Pennsylvania on [the Mantua] robbery charges," in resistance to the New Jersey detainer. The stipulation says that "a New Jersey Governor's warrant was due to be lodged on or before April 7, 1982 but said

warrant was never filed." Apparently, the Pennsylvania authorities had told Gloucester County that their detainer request would not be honored until the pending Pennsylvania charges were adjudicated.

A hearing was then held in Delaware County, Pennsylvania, on May 14, 1982 before Judge Wright of Common Pleas Court on defendant's pending petition for habeas relief from the New Jersey detainer; at that time "the Commonwealth was granted an extension in which to lodge the Governor's warrant, which extension would expire [on] June 7, 1982." No "Governor's warrant" was lodged and the New Jersey detainer against the defendant was dismissed on June 11, 1982 by Judge Surrick of Common Pleas Court, after defendant had been sentenced to a three to six-year prison term on June 7, 1982. A new detainer finally was filed against defendant but not until July 23, 1984, while he was still serving his three to six-year sentence in the Commonwealth.

Thus we see a 25-month hiatus between June 1982 and July 1984 when there was no interstate activity by New Jersey directed at obtaining defendant for a trial here on the 1982 New Jersey robbery charges. As we understand this record, neither the defendant nor the Commonwealth wanted to cooperate with New Jersey's request for defendant's return here before defendant was sentenced in Pennsylvania on June 7, 1982. After defendant's sentencing, New Jersey seemingly lost interest in defendant and did nothing until July 1984 when the new detainer was filed. During this period, defendant never initiated a request under the IAD for New Jersey to obtain jurisdiction and proceed against him. See N.J.S.A. 2A:159A-3; Article III; (180-day period to trial or dismissal on request initiated by defendant). As we also understand this record, (1) defendant throughout, from 1982 to 1986 or into 1987, resisted New Jersey's attempts to return him to this jurisdiction, never acceding to return voluntarily, and (2) defendant has never claimed that he suffered any adverse consequences, (e.g., lost commutation credits, ineligibility for inmate programs, parole prejudice) because of New Jersey's initially

feeble and eventually aborted attempt to obtain him in 1982, or throughout the 25-month hiatus when no New Jersey ...


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