Opinion
DOCKET NO. A-4224-12T4
04-23-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEE JOHNSON, a/k/a DUVAL JOHNSON, Defendant-Appellant.
Lee Johnson, appellant pro se. Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-03-0305. Lee Johnson, appellant pro se. Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Lee Johnson appeals from the denial of his second petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Following a jury trial, defendant was convicted of numerous crimes stemming from a murder committed during an armed robbery. He was sentenced to an aggregate term of life 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 sentence was consecutive to a sentence defendant was serving on an unrelated matter.
Defendant appealed his conviction and sentence, arguing, in part, that the trial judge violated his right to a public trial by closing jury selection to the public. We affirmed and our Supreme Court denied certification. State v. Johnson, Nos. A-5330-06 and 6330-06 (App. Div.), certif. denied, 203 N.J. 440 (2010).
Defendant timely filed his first PCR petition, arguing, in part, that trial counsel rendered ineffective assistance by not seeking a Wade hearing and the trial judge violated his right to a public trial by closing jury selection to the public. The petition was denied and defendant appealed. We affirmed and our Supreme Court denied certification. State v. Johnson, No. A-2085-11 (App. Div.), certif. denied, 216 N.J. 15 (2013).
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
While the appeal of defendant's first PCR petition was pending, he filed a pro se PCR petition. Defendant argued that PCR counsel's failure to provide facts showing that trial counsel rendered ineffective assistance by not requesting a Wade hearing, and failure to obtain certifications showing that defendant was denied a public trial, constitute ineffective assistance of counsel. In support of the petition, defendant submitted certifications from two individuals who were excluded from the courtroom during jury selection. The PCR judge found no good cause to appoint counsel for defendant and denied the petition without an evidentiary hearing.
In this appeal, defendant argues that the PCR judge erred in failing to appoint counsel and address his claim that PCR counsel rendered ineffective assistance by not presenting the two certifications. We have considered these arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The denial of a public trial issue was decided on the merits and rejected on two appeals.
Defendant did not address the Wade hearing issue in his merits brief. The issue therefore is deemed waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION