August 10, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WADE JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-09-03096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 3, 2012
Before Judges Cuff and Fuentes.
Defendant Wade Johnson appeals from the denial of his motion for reconsideration from the denial of his second petition for post-conviction relief (PCR). Defendant is serving life imprisonment with a thirty-year period of parole ineligibility for conspiracy to commit murder, knowing or purposeful murder, unlawful possession of a handgun, and possession of a handgun for unlawful purposes. We affirmed his conviction and sentence, State v. Johnson, 287 N.J. Super. 247 (App. Div. 1996); the Supreme Court denied certification, 144 N.J. 587 (1996). Defendant filed his first petition for PCR, which was denied following an evidentiary hearing on June 6, 1997. We affirmed, State v. Johnson, No. A-7087-96 (App. Div. December 31, 1998); the Supreme Court denied certification, 160 N.J. 91 (1999). Defendant's second petition for PCR was denied on April 21, 2011.*fn1 Defendant filed a motion for reconsideration, which was denied in a written decision on August 11, 2011. It is from this order that defendant now appeals.
On April 21, 2011, Judge Patricia K. Costello issued an opinion in which she ruled that all of defendant's claims, including ineffective assistance of counsel, were barred pursuant to Rule 3:22-5 because the Appellate Division had "conclusively determined" them. The judge also found that "defendant's pleadings are wholly inadequate," due to their failure to name any errors by defendant's first PCR counsel and their failure to "show that counsel's conduct prejudiced his defense." The judge entered an order denying defendant's second PCR the same day.
On May 4, 2011, defendant moved for reconsideration. On August 11, 2011, Judge Costello ruled that defendant's claims of ineffective assistance of trial counsel were barred by Rule 3:22-5 as matters previously decided. The remaining claims, which did not allege error by trial counsel or prior PCR counsel, were barred by Rule 3:22-4(b)(2)(B) for the failure to allege facts that could not have been discovered earlier through reasonable diligence. Judge Costello filed an order denying the motion for reconsideration on the same day.
Defendant filed this appeal from the August 11, 2011 order. While he nominally challenges the denial of reconsideration, his legal arguments focus instead on the denial of his second petition on the merits. He claims that trial counsel was ineffective for failing to request an instruction that would have limited consideration of a jailhouse informant's testimony to the subject of defendant's consciousness of guilt, and for failing to present evidence that would have discredited the witness who identified him as the perpetrator. He also claims that counsel on his first PCR petition was incompetent for failing to press those claims.
In addition, defendant raises two points that argue in nearly identical ways the claim that the jury charge failed to distinguish the required elements of murder from those of manslaughter. Finally, he claims that his sentence is illegal because life imprisonment is not a "specific term of years" as N.J.S.A. 2C:11-3(b)(1) requires.
The State argues that all of defendant's claims on appeal are barred by Rules 3:22-4 and 3:22-5. It also argues that the second petition was untimely.
On appeal, defendant raises the following arguments:
Point I: The PCR Judge Erred in Denying the
Motion for Reconsideration of its Denial of the Petition for Post-conviction Relief.
Point II: Defendant Has Alleged a Prima Facie
Case that PCR Counsel on Defendant's First PCR Petition was Ineffective. Point III: Trial Counsel was Ineffective for
Failing to Request a Limiting Instruction on the Use of Evidence of Defendant's Consciousness of Guilt.
Point IV: Trial Counsel was Ineffective for not
Presenting Evidence that would have Discredited the Identification Testimony of Thomas Anthony Mathis.
Point V: The Jury's General Verdict of Murder is Invalid and the Sentence Imposed Thereon is in Violation of Defendant's Right to Equal Protection Because one of the Predicates for Conviction (Knowingly Causing Serious Bodily Injury, which Resulted in Death) is Indistinguishable from Aggravated Manslaughter and Reckless Manslaughter and the Jury's Verdict Gives no Assurance that it was not Based on this Invalid Predicate.
Point VI: Because the Trial Court did not
Correctly Instruct the Jury on the Elements of Murder based on Causing Serious Bodily Injury and the Jury did not Specify Whether its Verdict was based on the Theory of Causing Death, Defendant's Conviction of Murder must be Vacated Because there is no Assurance Defendant was Convicted of Murder with Proof Beyond a Reasonable Doubt of all Correctly Defined Elements.
Point VII: Defendant's Sentence of Life
Imprisonment is Illegal.
The rules governing PCR bar the assertion of any "ground for relief" not previously raised at trial or in an appeal, Rule 3:22-4, or that could have been raised at trial or on appeal but was not. State v. Afanador, 151 N.J. 41, 50 (1997). That procedural bar also applied if there was a prior PCR proceeding in which the ground for relief was not raised. R. 3:22-4(a).
As of February 1, 2010, Rule 3:22-4 was amended. The former provisions were carried over and redesigned as section
(a), with the addition of definitions. The new portion, section
(b), imposes a stricter procedural bar on a second or subsequent petition. Such a petition is barred if it failed to "allege on its face" either: a new and retroactive rule of constitutional law, a "factual predicate for relief" that "could not have been discovered earlier through the exercise of reasonable diligence," or "a prima facie case of ineffective assistance of counsel" in a prior PCR proceeding. R. 3:22-4(b)(2).
In addition to the Rule 3:22-4 procedural bar, a "prior adjudication upon the merits of any ground for relief is conclusive," regardless of whether it was made at trial or in a prior PCR proceeding, or in "any appeal taken from such proceedings." R. 3:22-5. That bar of res judicata applies to any claim that is "identical or substantially equivalent to" the adjudicated claim. State v. Marshall, 173 N.J. 343, 351 (2002) (citation omitted). Rule 3:22-5 has not been amended.
Judge Kirby, the trial judge and first PCR judge, found that the claim of ineffective assistance of counsel concerning the limiting instruction on the use of evidence of consciousness of guilt had been addressed on direct appeal. This court noted the judge's treatment of that claim, and we held that Judge Kirby correctly identified the claims precluded by Rule 3:22-5 for having been "adjudicated on direct appeal." Johnson, supra, No. A-7087-96 (slip op. at 5). Defendant protests that his direct appeal had blamed only the court for that deficiency, not his trial counsel, and that the Appellate Division could not possibly have decided a claim that he had not presented.
While defendant correctly describes his assignment of blame for that failure in his direct appeal, Johnson, supra, 287 N.J. Super. at 256, this court noted it had anticipated the ineffective assistance claim and rendered a decision on it. We addressed the question on direct appeal solely in terms of counsel's failure to object to the absence of a limiting instruction, and why that failure could have been knowing and reasonable rather than a deficiency. Id. at 262. We explained defendant's trial counsel had already subjected the information "to an effective cross-examination," and a limiting instruction "could have unduly emphasized a portion of" the informant's "testimony directly implicating [defendant] in [the victim's] death." Ibid. The issue decided on direct appeal is "identical or substantially equivalent to" the ineffective assistance claim defendant has asserted since. Marshall, supra, 173 N.J. at 351 (citation omitted).
The other claim regarding trial counsel's ineffective assistance, the failure to discredit the witness who identified defendant as the perpetrator, is based solely on the notion that counsel allowed the witness to exaggerate the length of time that he had known defendant. Defendant argues he was incarcerated on unrelated charges or offenses for significant periods during that time, implying that they should have been subtracted from the time that the witness claimed to know him. However, defendant's brief does not even allege on its face that his prior incarcerations, which are the factual predicate for this claim, "could not have been discovered earlier through the exercise of reasonable diligence," so this claim is barred by Rule 3:22-4(b)(2)(B). Even if defendant's second petition is deemed filed in 2004, the original version of Rule 3:22-4 would have barred the claim for want of such allegations.
The two claims of ineffective assistance of trial counsel are the only claims that defendant now faults his prior PCR counsel for failing to pursue. The first one was already barred as of the first PCR proceeding due to its adjudication on direct appeal. The second one was also barred at that time, even under the original version of Rule 3:22-4, due to the absence of a reason why defendant could not have raised it in his direct appeal.
Defendant's remaining claims do not assert ineffective assistance of trial counsel. In his claim of jury charge error, defendant expressly disclaims reliance on any new rule of law, and he does not allege a previously undiscoverable factual predicate or blame his prior PCR counsel. Those are the only exceptions to either the original or current version of Rule 3:22-4, and these claims are barred. Defendant's claim that a life sentence is illegal because it is not "a specific term of years" would have been barred from the first PCR proceeding as a claim that could have been raised in his direct appeal. Defendant presents no relevant authority to support an argument that this claim could have been considered even in the first PCR proceeding as a claim of "fundamental injustice" under either version of Rule 3:22-4.
Each claim asserted by defendant in support of his second PCR petition was barred. We, therefore, affirm the August 11, 2011 order denying defendant's motion for reconsideration from the denial of his second PCR.