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State v. Johnson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 23, 2007

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

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 1153-10-84.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 5, 2007

Before Judges Skillman and King.

Defendant was found guilty by a jury of felony murder, in violation of N.J.S.A. 2C:11-3a(3); first degree robbery, in violation of N.J.S.A. 2C:15-1; second degree robbery, in violation of N.J.S.A. 2C:15-1; aggravated assault, in violation of N.J.S.A. 2C:12-1b(1); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; and possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b. The trial court sentenced defendant to life imprisonment, with thirty years of parole ineligibility, for felony murder, a consecutive seven year term, with three-and-a-half years of parole ineligibility, for second degree robbery, and a concurrent four year term for possession of a handgun without a permit. The court merged defendant's other convictions. On a direct appeal, we affirmed defendant's conviction and sentence in an unreported opinion, State v. Johnson, No. A-2922- 85T4 (Jan. 24, 1989), and the Supreme Court denied defendant's petition for certification, 117 N.J. 83 (1989).

The trial court denied defendant's first petition for post- conviction relief in 1990. We affirmed the denial of that petition in an unreported opinion, State v. Johnson, A-5812-89T4 (May 5, 1992), and the Supreme Court denied defendant's petition for certification, 130 N.J. 396 (1992).

Defendant filed a second petition for post-conviction relief in 1994, which the trial court also denied. We affirmed the denial of that petition in an unreported opinion, State v. Johnson, A-2288-93T5 (Jan. 6, 1995), and the Supreme Court denied defendant's petition for certification. 141 N.J. 98 (1995).

Defendant filed his third petition for post-conviction relief, which was supported by a hundred page pro se brief, in 2004. The trial court denied the petition by a written opinion and order entered April 22, 2005.

On appeal from the denial of his third petition for post- conviction relief, defendant presents the following arguments:

I. THE COURT BELOW ABUSED [ITS] DISCRETION BY DECIDING THAT DEFENDANT'S APPELLATE AND/OR PCR COUNSEL WERE NOT PREJUDICIALLY INEFFECTIVE BY THEIR FAILURES TO DISCOVER AND RAISE THE CLAIM THAT THE INDICTMENT WAS IMPROPERLY AMENDED. U.S. CONST. Amend. XIV; N.J. CONST. (1947) Art. 1, Par. 10; Art. 1, Par. 8.

II. THE COURT BELOW ABUSED [ITS] DISCRETION BY DECIDING THAT DEFENDANT'S APPELLATE AND/OR PCR COUNSEL WERE NOT PREJUDICIALLY INEFFECTIVE BY THEIR FAILURES TO DISCOVER AND RAISE THE CLAIM THAT THE ACCOMPLICE LIABILITY CHARGE WAS FACTUALLY UNSUPPORTED. U.S. CONST. Art. III, § 2, Par. 3; Amend. XIV; N.J. CONST. (1947) Art. 1, Par. 9, 10.

III. THE COURT BELOW ABUSED [ITS] DISCRETION BY DECIDING THAT DEFENDANT'S APPELLATE AND/OR PCR COUNSEL WERE NOT PREJUDICIALLY INEFFECTIVE BY THEIR FAILURES TO DISCOVER AND RAISE THE CLAIM THAT THE IN COURT IDENTIFICATION OF THE DEFENDANT WAS SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE. U.S. CONST. Amend. XIV; N.J. CONST. (1947) Art. 1, Par. 10; N.J.R.E. 403.

IV. THE COURT BELOW ABUSED [ITS] DISCRETION BY DECIDING THAT DEFENDANT'S APPELLATE AND/OR PCR COUNSEL WERE NOT PREJUDICIALLY INEFFECTIVE BY THEIR FAILURES TO DISCOVER AND RAISE THE CLAIMS THAT THE HUDSON COUNTY JUROR EXCLUSION POLICY: VIOLATED THE PRINCIPLE OF SEPARATON OF POWERS (A); VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW (B); OR VIOLATED THE NON-DELEGATION DOCTRINE (C). U.S. CONST., Amend. XIV; N.J. CONST. (1947) Art. 1, Par. 10.

V. THE COURT BELOW ABUSED [ITS] DISCRETION BY DECIDING THAT DEFENDANT'S APPELLATE AND/OR PCR COUNSEL WERE NOT PREJUDICIALLY INEFFECTIVE BY THEIR FAILURES TO DISCOVER AND RAISE THE CLAIM THAT AN ADDITIONAL INSTRUCTION ON UNANIMITY SHOULD HAVE BEEN GIVEN. U.S. CONST. amend. XIV; N.J. CONST. (1947) Art. 1, Par. 10.

VI. THE COURT BELOW ABUSED [ITS] DISCRETION BY DECIDING THAT DEFENDANT'S APPELLATE AND/OR PCR COUNSEL WERE NOT PREJUDICIALLY INEFFECTIVE BY THEIR FAILURES TO DISCOVER AND RAISE THE CLAIM THAT IT WAS IMPROPER NOT TO INSTRUCT THE JURY ON THE ELEMENTS OF THE STATUTORY DEFENSE TO FELONY MURDER. U.S. CONST. Amend XIV; N.J. CONST. (1947) Art. 1, Par. 10.

VII. THE COURT BELOW ABUSED [ITS] DISCRETION BY DECIDING THAT A DECISION ON THE SUBSTANTIVE MERITS WAS PROCEDURALLY BARRED. U.S. CONST. Amend. XIV; N.J. CONST. (1947) Art. 1, Par. 10 & Par. 14.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Schultz's written opinion. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2).

Affirmed.

20070723

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