On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-06-2062.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Alvarez and Coburn.
Defendant Rashawn Johnson appeals from an August 21, 2007 order denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. We affirm.
Following defendant's referral to adult court from juvenile court pursuant to N.J.S.A. 2A:4A-26 and the subsequent jury trial in adult court, defendant was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant was sentenced on February 9, 2001, after appropriate mergers, to eighteen years imprisonment subject to nine years of parole ineligibility on the robbery conviction. Defendant also received a concurrent five-year term for the unlawful possession of a weapon conviction. Defendant's convictions were affirmed on direct appeal. State v. Rashawn Johnson, No. A-1203-01 (App. Div. Oct. 24, 2003). His petition for certification was denied. State v. Rashawn Johnson, 179 N.J. 372 (2004).
The facts adduced at trial were that on May 26, 1998, at approximately 11:00 p.m., defendant and two others approached the victim, Terrell Proctor, and demanded his valuables. Proctor did not feel threatened, because the assailants "were about half [his] size," until defendant drew a handgun and pointed it inches from Proctor's forehead. After taking the few dollars in Proctor's possession and his gold chain, the assailants ran. Proctor followed his assailants from a distance, encountering a police car as he did so. Those officers, together with others dispatched to the scene, were able to promptly apprehend the suspects. While chasing defendant, one of the officers saw him drop a silver handgun. Proctor identified defendant shortly after the arrest. Nearly three months later, on August 14, Proctor unsuccessfully attempted to identify defendant from a photo array. Proctor noticed a picture lying on the officer's desk, however, which he was able to identify as defendant.
The following point is raised on appeal:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING REGARDING COUNSEL'S ALLEGED INEFFECTIVENESS AT THE WAIVER HEARING, BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS WAS ESTABLISHED.
It bears noting that on direct appeal, defendant also raised the issue of the ineffectiveness of counsel during the waiver hearing. State v. Johnson, supra, (slip op. at 8-9). We deferred consideration as the "assertions involve evidence beyond the trial record and are best addressed on an application for post-conviction relief." Ibid. We commented that the waiver hearing record was notably sparse, containing neither explicit findings of fact nor correlated conclusions of law. Id. at 7. But as we also stated:
There was a complete absence of any testimony, expert or otherwise, that there existed a probability of rehabilitation. Instead, the evidence pointed to the opposite conclusion. The only expert report referred to in the record was one obtained from a Dr. Thompson, which was negative.
Moreover, the violent nature of the offense, along with defendant's past record, which reflects a five-year history of delinquency starting with several simple assault offenses and progressing to the more serious offense of aggravated assault, militate against the conclusion that defendant is capable of rehabilitation, much less support a finding that the probability of defendant's rehabilitation substantially outweighs the reasons for his waiver.
Simply put, defendant did not present any meaningful evidence to overcome the statutory presumption favoring referral to adult court. The judge's failure to provide reasons as required by the former statute was harmless. [Id. at 8.]
In his cogent oral decision, the PCR judge relied on these findings regarding the waiver. He added that juvenile counsel was unable to obtain expert testimony in support of the likelihood of defendant's rehabilitation before reaching the age of nineteen, necessary in order to defeat waiver to adult court. N.J.S.A. 2A:4A-26e. Furthermore, counsel had no realistic prospect of minimizing defendant's five-year history of progressively worsening assaultive conduct. The judge also noted that, in addition to the damning juvenile history, defendant's prior records indicated ...