Opinion
DOCKET NO. A-1017-10T1
03-04-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEITH JOHNSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven J. Sloan, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-11-4481.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven J. Sloan, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Keith Johnson appeals from the January 22, 2010 denial of his petition for post-conviction relief (PCR) without a hearing, but after oral argument. After being initially charged with first-degree kidnapping, N.J.S.A. 2C:13-1(b), second-degree eluding, N.J.S.A. 2C:29-2(b), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(1), defendant pled guilty in November 2005 to an accusation charging third-degree criminal restraint, N.J.S.A. 2C:13-2(a), with the understanding that the State would recommend a noncustodial sentence. Defendant also agreed not to appeal his conviction. Defendant maintains that his counsel was ineffective for failing to investigate the charge against him and counseling defendant to plead guilty although he maintained his innocence. We affirm.
At his plea hearing on November 30, 2005, defendant admitted under oath that he took the victim in his car against her will from her job site in Cherry Hill. He indicated that the police were called by the victim's co-workers. Defendant said that he was driving up to sixty miles an hour and did not immediately pull his car over for the police. He acknowledged that he exposed the victim to serious bodily injury by traveling at that speed while being chased by the police. Defendant was sentenced to a three-year probationary term.
Defendant filed a PCR petition on November 27, 2007, five months after he was discharged early from probation. In his petition, defendant alleged that witnesses had heard that the victim recanted her allegations. He asserts that this information was relayed to the Prosecutor's Office, Public Defender's Office and to the police department. Defendant did not produce any witness statements backing up this claim or otherwise set forth the facts supporting the claim.
On appeal, defendant raises the following issues:
POINT I: THE TRIAL JUDGE MISAPPLIED THE LAW AS JOHNSON IS ENTITLED TO POST-CONVICTION RELIEF AND AN EVIDENTIARY HEARING.
POINT II: THE TRIAL JUDGE MISAPPLIED THE LAW AND SHOULD HAVE FOUND THAT JOHNSON WAS ENTITLED TO POST-CONVICTION RELIEF BASED ON INADEQUATE ASSISTANCE OF COUNSEL.
POINT III: JOHNSON'S CLAIMS ARE NOT TIME BARRED BY THE PROVISIONS OF RULE 3:22-2 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE CONSTITUTION.
A deprivation of the constitutional right to effective assistance occurs when: 1) an attorney provides inadequate representation; and 2) that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
In cases brought by a defendant who has entered a guilty plea, the first prong is met where the defendant can show that counsel's representation fell short of the guarantees established by the Sixth Amendment. State v. Parker, 212 N.J. 269, 279 (2012) (citing Strickland, supra, 466 U.S. at 668, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The second component is shown by establishing a reasonable probability that the defendant would not have pled guilty, but for his counsel's errors. Id. at 279-80 (citations omitted). Defendant cannot establish the first prong.
The crime of criminal restraint involves restraining "another unlawfully in circumstances exposing the other to risk of serious bodily injury[.]" N.J.S.A. 2C:13-2(a). Defendant maintains that traveling at sixty miles per hour while being chased by the police is insufficient evidence of a risk of serious bodily injury. Defendant can not substitute a PCR petition for a direct appeal. He could have raised this issue on appeal and did not do so. R. 3:22-4; State v. Reevey, 417 N.J. Super. 134, 148 (App. Div. 2010) ("Issues that could and should have been raised on direct appeal from the defendant's conviction are barred by Rule 3:22-4(a) unless the exceptions to the Rule have been established." (citing R. 3:22-4(a)(1-3)), certif. denied, 206 N.J. 64 (2011). Further, the police reports indicate that defendant pulled over and defendant exited the car, the officers drew their weapons, and then defendant ran back to the car and drove off with the victim. The victim told the police that "[h]e was driving at high speeds, running stop signs and red lights to get away." See State v. Mitchell, 126 N.J. 565, 581-82 (1992) ("In determining whether an adequate factual basis exists, the court may consider the defendant's statements as well as information gleaned from the surrounding circumstances. In evaluating the 'surrounding circumstances,' the court may consider a wide range of information sources, including all testimony at the plea and sentencing hearings, the presentence report, as well as other sources unique to a particular case[.]" (internal citations omitted)). This behavior is sufficient to sustain the charge of criminal restraint.
Although defendant agreed not to appeal, he could have done so and the State would then have had the option of withdrawing the plea offer. R. 3:9-3(d).
Defendant claims that he had a romantic relationship with the victim and that she recanted her statement to the police. He presents no witness statements or other evidence to substantiate his claim that further defense investigation would have exculpated him. "Petitioner must offer something more than a base allegation." State v. Cummings, 321 N.J. Super 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999) (citation omitted). His claim that his counsel should have moved to withdraw his plea based on the alleged recantation fails for the same reasons. See State v. Slater, 198 N.J. 145, 150 (2009) (outlining factors to be considered when evaluating motions to withdraw a guilty plea).
He also argues that the court erred in denying him an evidentiary hearing. However, such hearings will not be granted unless a defendant can first establish a prima facie case of ineffective assistance. State v. Preciose, 129 N.J. 451, 462 (1992). Defendant failed to make such a showing.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION