On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-04-0832.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 15, 2010 - Decided:
Before Judges Fisher and Fasciale.
Defendant, Kevin Johnson, appeals from an October 24, 2008 order denying his petition for post-conviction relief (PCR). Defendant argues that his PCR counsel was ineffective because he failed to provide certifications from potential favorable witnesses, and that the PCR judge erred by denying his request for an evidentiary hearing. We affirm.
The facts giving rise to defendant's convictions are set forth in our earlier unreported opinion. State v. Johnson, No. A-4926-03 (App. Div. Jan. 17, 2006). We now summarize the facts for this appeal.
Nicholas Barone attended a party at a club in Asbury Park with co-defendant, Chaz Morgan, and others. Barone, his girlfriend, and cousin left the party and returned to Barone's apartment. Morgan and defendant, who had not been at the party, arrived at the apartment in a Ford Taurus and observed Barone standing on the sidewalk.
Barone testified that defendant and Morgan, wearing masks, then pushed him up the stairs into his apartment and demanded money and his safe. Morgan disputed this, testifying that he discussed moving the safe with Barone and that Barone invited them into the apartment. Once inside, according to Barone, he and Morgan began to "tussle." Barone's dog attacked defendant. Defendant pulled a gun and shot the dog. Defendant did not testify at the trial.
Defendant and Morgan left the apartment in the Taurus with the safe. A police officer observed the car driving at a high rate of speed and attempted to pull it over. Defendant made an evasive right turn and then drove through two stop signs and a red light. Defendant and Morgan exited the car and fled in different directions. Defendant and Morgan resisted arrest but the police apprehended them.
At the conclusion of a jury trial, defendant was convicted of various
offenses, including first-degree armed robbery, second-degree
burglary, third-degree weapons related offenses, second-degree
eluding, and third-degree resisting arrest. The judge sentenced
defendant to an aggregate seventeen-year prison term subject to an
eighty-five percent period of parole ineligibility pursuant to the No
Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. Johnson, supra,
(slip op. at 4-5). His co-defendant, Chaz Morgan, was found guilty of
robbery, burglary, and related offenses at the same trial.*fn1
In response to a remand for re-sentencing, the judge imposed
the same aggregate term of seventeen years with eighty-five percent
Following the re-sentence, defendant filed a PCR petition. Defendant argued that trial counsel was ineffective because he failed to investigate potential witnesses. According to defendant, there were potential witnesses who would say that he and Barone were "business partners" and that they "had known each other for a while." He implied that if the jury knew that he was Barone's business partner, then he would be acquitted of robbery because the jury would have concluded that taking the safe was merely a business dispute. He also contended that he was entitled to a new trial because Barone produced an affidavit after the trial that recanted his testimony.
The PCR judge denied the petition without conducting an evidentiary hearing. The judge explained that defendant failed to establish a prima facie case of ineffective assistance of trial counsel. The judge stated that "I have no affidavit from these [potential] witnesses. I have no idea what they would or would not say in this particular case." The PCR judge also rejected Barone's attempt to recant his trial testimony.
On appeal, defendant raises the ...