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State v. Johnson

March 19, 2010

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



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 02-10-1301 and 03-08-1097.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 8, 2010

Before Judges Lisa and Baxter.

Defendant Kevin B. Johnson appeals from a March 18, 2008 order that denied his petition for post-conviction relief (PCR). We reject defendant's argument that the PCR judge erred when she: 1) denied his motion to vacate his guilty plea, despite his claim that the factual basis he provided was insufficient to support his conviction for second-degree burglary; 2) refused to grant an evidentiary hearing on defendant's claim that both trial and appellate counsel rendered ineffective assistance by failing to realize that his factual basis was insufficient; and 3) denied his application for a change of venue during the PCR proceeding. We affirm.

I.

On January 20, 2004, defendant pled guilty to three different charges of burglary, each one contained in a separate charging document. In particular, under Indictment 02-10-1301, he pled guilty to second-degree burglary, N.J.S.A. 2C:18-2(b)(2). On both Indictment 03-08-1097 and Accusation 19-01-04, defendant pled guilty to one count of third-degree burglary, N.J.S.A. 2C:18-2(a)(1). Defendant's claims on appeal concern only his second-degree conviction, for which he entered the following factual basis during the plea colloquy:

Q: On August 12, 2002, . . . did you find yourself with Jameel Parrott in the Borough of Carteret . . .?

A: Yes, I did.

Q: And did there come a point in time when you and he entered into [a home on] Pershing Avenue?

A: Yes, sir.

Q: What was your intent when you went into that structure?

A: To burglarize the house.

Q: To take property from within?

A: Exactly. Uh-hum.

Q: Did you know the owners of the house?

A: No, I didn't.

Q: You, in fact, entered it with Jameel; ...


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