June 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINCENT D. JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 88-06-3723.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2012
Before Judges Sabatino and Fasciale.
Defendant appeals from a July 1, 2008 order denying his petition for post-conviction relief (PCR). Defendant contends that his plea counsel in 1988 was ineffective by failing to explain that his convictions "could enhance a future sentence" if he thereafter committed any more crimes. We affirm.
In September 1988, defendant pled guilty to third-degree burglary (of an automobile), N.J.S.A. 2C:18-2: third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5); fourth-degree criminal mischief, N.J.S.A. 2C:17-3a(1); and third-degree criminal mischief, N.J.S.A. 2C:17-3a(1). In August 1988, the judge sentenced defendant in accordance with the plea agreement to an aggregate prison term of five years with eighteen months of parole ineligibility, concurrent to the sentence for an out-of-state parole violation. Defendant did not file a direct appeal.
Defendant completed his prison time in New Jersey and this matter remained dormant until 2006 when he was arrested in Georgia for armed robbery and aggravated assault. In 2008, defendant received a ten-year prison sentence from the Georgia courts. The Georgia criminal case then prompted defendant to file his PCR petition in New Jersey, eighteen years and nine months after his convictions.*fn1 Judge Irvin J. Snyder*fn2 issued and eight-page written decision, determined that the petition was time-barred, and concluded that defendant failed to establish a prima facie case of ineffective assistance of plea counsel. In determining that the petition was time-barred, Judge Snyder stated:
Defendant argues that the time bar should be lifted because he was not prejudiced until the 1988 conviction was allegedly used to enhance his sentence for an unrelated crime in the State of Georgia.
The court finds defendant's argument to lack both merit and credibility. [The sentencing judge in New Jersey] fully informed defendant during his plea hearing that he would have a criminal record as a result of [his New Jersey] conviction[s]. Further, at the time defendant committed the offenses he was on parole for a conviction in the State of Louisiana. Also, at sentencing, [the New Jersey judge] applied aggravating factor 6, informing defendant that his prior record would be weighed as an aggravating factor in the determination of his sentence. Hence, at the time of sentencing[,] defendant was aware that his criminal record would follow him into the future, at which time, defendant had ample opportunity to tile a PCR [petition] within the five[-]year time bar.
In that regard, defendant has a 1993 conviction in Dekalb County, Georgia, for possession of a firearm by a convicted felon, obstruction of a law enforcement officer, credit card theft, criminal interference with government property, and driving under the influence. It is fair to conclude that during defendant's 1993 sentencing the court reviewed [defendant's] criminal record and used it as a factor in determining the length of incarceration. At the time of defendant's 1993 conviction[,] he could have properly filed a PCR [petition] within the five[-]year time bar.
[T]he court finds that defendant has not presented any credible evidence to constitute excusable neglect[;] thus, his petition is procedurally barred and dismissed.
Although Judge Snyder concluded that defendant filed the
petition untimely without excusable neglect, the judge then
considered the petition on the merits and stated:
[D]efendant has failed to set forth affidavits or certifications supporting his allegations of ineffective assistance of counsel. The only evidence submitted . . . is his own affidavit stating [that] defendant was not advised that his conviction could enhance a sentence for future crimes. In other words, defendant, who was on parole when he committed the offenses . . . attempts to argue that he lacked the experience and knowledge of the criminal justice system to understand that his criminal record will be considered when future sentences are imposed. The court finds that argument lacking in credibility.
[D]efendant has failed to present any evidence of prejudice. Defendant has not even argued that had he been advised that his conviction could potentially hurt him in the future, he would have proceeded to trial in the instant matter. Additionally, defendant has not presented any evidence that he actually received an enhanced sentence in Georgia[.]
This appeal followed.
On appeal, defendant raises the following points:
THE COURT BELOW ERRED IN FINDING THAT DEFENDANT'S POST CONVICTION RELIEF PETITION WAS TIME BARRED PURSUANT TO COURT RULE 3:22-12.
THE COURT BELOW ERRED IN MAKING FACTUAL FINDINGS WITHOUT THE BENEFIT OF AN EVIDENTIARY HEARING.
DEFENDANT'S CLAIMS BELOW ESTABLISHED A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.
We have carefully considered the arguments made by defendant in light of the record and applicable legal principles and conclude that his arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Snyder in his July 1, 2008 oral opinion.