July 18, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
GORDON JOHNSON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2012
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-03-0537.
Joseph E. Krakora, Public Defender, attorney For appellant (Michele Adubato, Designated Counsel, on the brief).
Theodore F. L. Housel, Acting Atlantic County Prosecutor, attorney for respondent (James F. Smith, Special Deputy Attorney General/Acting Assistant County Prosecutor, of Counsel and on the brief).
Before Judges Graves and Espinosa.
Defendant Gordon Johnson appeals from a June 9, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Following a jury trial, defendant was convicted of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1)(2) (count eight); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count nine); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count ten); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count eleven); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count twelve); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count thirteen). After merging counts nine, ten, eleven, and thirteen into count eight, the court sentenced defendant for attempted murder to a fifteen-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court imposed a consecutive four-year prison term for possession of a handgun without a permit (count twelve).
On direct appeal, defendant raised five points:
THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE IDENTITY BEYOND A REASONABLE DOUBT.
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BECAUSE THE STATE INTRODUCED PRIOR INCONSISTENT STATEMENTS OF ITS OWN WITNESS WITHOUT SATISFYING THE REQUIREMENTS OF N.J.R.E. 803(A)(1).
THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY ALLOWING THE PROSECUTOR, IN VIOLATION OF STATE V. SILVA, 131 N.J. 438 (1993), TO IMPEACH A DEFENSE WITNESS WITH HER PRETRIAL SILENCE.
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE TERM OF NINETEEN YEARS BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S ATTEMPTED MURDER AND UNLAWFUL POSSESSION OF A WEAPON CONVICTIONS IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).
We affirmed defendant's convictions and sentence in an unpublished opinion, State v. Johnson, No. A-6461-04 (App. Div. Sept. 28, 2007), and defendant's petition for certification was denied by the Supreme Court. State v. Johnson, 194 N.J. 269 (2008). The State's proofs were summarized in our prior opinion and need not be repeated here.
In July 2009, defendant filed a petition for PCR alleging ineffective assistance of counsel. In a letter brief dated December 22, 2010, assigned counsel summarized defendant's position:
In the present matter, as can be clearly understood following a review of the trial transcripts, the identity of the shooter in this matter was among the paramount issues at trial. The testimony offered by Dennis Bell and Aiyona Lewis on behalf of the State, was ultimately harmful to the defense's case. In the case of Mr. Bell, he testified that he did not recall the details of the incident. However, a prior statement was allowed by the court to be used. Ms. Lewis also testified that she had limited recollection of the matter, and the court allowed the playing of prior testimony she gave in the context of her own guilty plea given in a related matter. It is in the cross-examination of these witnesses where the defendant contends that he received ineffective assistance of counsel. In his view, counsel's deficient performance allowed the jury to hear conflicting testimony without a thorough understanding of the possible reasons for any inconsistencies.
Had the examination of these witnesses been more effective, the jury certainly would have had more to consider, and the defendant concludes reasonable doubt, [that] would have demanded a not guilty verdict.
The PCR court denied defendant's petition on June 9, 2011. In a written decision, the court found the two witnesses, Dennis Bell and Aiyona Lewis, "tried to help [defendant's] defense by feigning memory lapses on the witness stand––[but] the jury didn't buy it." The court also found defendant failed to allege facts sufficient to establish a prima facie claim of ineffective assistance of counsel.
On appeal from the denial of his petition, defendant presents the following arguments:
THE COURT'S FAILURE TO GRANT AN EVIDENTIARY HEARING ON MR. JOHNSON'S PETITION FOR POST-CONVICTION RELIEF WAS ERROR.
THE TRIAL PERFORMANCE OF DEFENSE COUNSEL VIOLATED PETITIONER'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
A. FAILURE TO EFFECTIVELY CROSS-EXAMINE PIVOTAL WITNESSES.
Based on our review of the record and the applicable law, we conclude these arguments are clearly without merit, Rule 2:11-3(e)(2), and only require the following comments.
A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-10). An evidentiary hearing is not warranted unless a defendant presents a prima facie claim and the facts supporting the claim are not part of the trial record. Ibid. "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding" under the Strickland/Fritztwo-prong test. Id. at 463.
Under the first prong, defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J.Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Under the second prong, defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
In the present matter, the record fully supports the PCR court's determination that defendant failed to demonstrate a reasonable likelihood of success under the Strickland/Fritz test. As the trial court observed, even "a highly respected criminal defense attorney . . . cannot make a silk purse out of a sow's ear."