Opinion
DOCKET NO. A-4711-13T3 DOCKET NO. A-2754-14T3
07-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH JOHNSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant in A-4711-13 (Suzannah Brown, Designated Counsel, on the brief). Joseph Johnson, appellant pro se in A-2754-14. Esther Suarez, Hudson County Prosecutor, attorney for respondent (Ryan M. Galler, Assistant Prosecutor, on the briefs). Appellant filed a pro se supplemental brief in A-4711-13.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-08-1461. Joseph E. Krakora, Public Defender, attorney for appellant in A-4711-13 (Suzannah Brown, Designated Counsel, on the brief). Joseph Johnson, appellant pro se in A-2754-14. Esther Suarez, Hudson County Prosecutor, attorney for respondent (Ryan M. Galler, Assistant Prosecutor, on the briefs). Appellant filed a pro se supplemental brief in A-4711-13. PER CURIAM
Defendant appeals from the denial of his first petition for post-conviction relief (PCR) without an evidentiary hearing and the denial of his second petition for PCR without an evidentiary hearing. We affirm.
Following a jury trial, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1, and first-degree carjacking, N.J.S.A. 2C:15-2. He was sentenced to a ten-year term of imprisonment on the robbery count and a consecutive thirty-year term of imprisonment on the carjacking count, each subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and parole supervision for five years.
We affirmed his convictions and sentence in an unpublished opinion. State v. Johnson, No. A-1131-09 (App. Div. Mar. 12, 2012), certif. denied, 213 N.J. 397 (2013). The facts underlying his convictions are set forth in our opinion and need not be repeated here.
I.
We begin by addressing defendant's first PCR petition. Defendant filed a pro se PCR petition on April 17, 2013, arguing he received ineffective assistance of counsel because his trial attorney "refused to petition the court to have the store's video surveillance tapes shown at trial," and that his due process rights were violated because: (1) "the prosecution vouched for witnesses during opening and closing statements"; (2) his trial counsel "inferred to the jury that [defendant] was under the influence of drugs when the crime was committed"; (3) the State "failed to present exclopatory [sic] evidence to [the] grand jury"; and (4) the trial court "amended the indictment without presentment to [the] grand jury." Defendant's petition was supplemented by a brief filed by counsel, arguing defendant was deprived of ineffective assistance of counsel due to trial counsel's "fail[ure] to conduct appropriate investigations" and to "adequately cross-examine the State's lead witnesses." Defendant filed a supplemental pro se brief arguing trial counsel "failed to properly advocate for the intoxication defense." PCR counsel filed a subsequent letter brief incorporating defendant's arguments set forth in his pro se PCR petition as well as expanding on defendant's argument regarding the amendment of the indictment.
Following oral argument, the PCR court denied defendant's petition by order and written decision dated March 6, 2014. Defendant filed a notice of appeal on June 10, 2014. On March 13, 2014, this court, upon defendant's motion, temporarily remanded the matter to the PCR court for consideration of "issues raised in [defendant's] PCR petition that were not decided in the court's prior decision." The PCR court issued a supplemental decision on March 31, 2015.
Defendant, through counsel, presents the following issue for our consideration.
POINT I
THE PCR COURT ERRED IN DENYING MR. JOHNSON'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING.
In his pro se supplemental brief, defendant presents the following issues on appeal.
POINT I
THE TRIAL COURT ERRED IN NOT HOLDING AN EVIDENTIARY HEARING IN ORDER TO DETERMINE WHETHER PETITIONER HAS BEEN DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL, PURSUANT TO THE UNITED STATES CONSTITUTION, AMENDMENT VI, AND XIV; AND THE NEW JERSEY CONSTITUTION OF 1947, ART. 1, ¶ 1, AND ART. 1, ¶ 10. (supplemented [sic] to Point II)
A. TRIAL COUNSEL WAS INEFFECTIVE FOR CONSENTING TO THE AMENDMENT OF THE INDICTMENT AND THE TRIAL COURT ERRED IN AMENDING THE INDICTMENT. (supplemented [sic] to Point I (a)[)].
B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CONDUCT AN ADEQUATE PRETRIAL INVESTIGATION AND MEANINGFUL DEFENSE.
(supplemented [sic] to Point I (b)[)].
D. [SIC] TRIAL COUNSEL FAILED TO CROSS-EXAMINE IN AN EFFECTIVE MANNER.
E. [SIC] TRIAL COUNSEL FAILED TO CONSULT WITH DEFENDANT.
POINT II
CUMULATIVE ERRORS BY TRIAL COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF [] COUNSEL.
After reviewing these arguments in light of the record and applicable legal principles, we conclude that none have any merit.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
To be entitled to an evidentiary hearing on a PCR petition, a defendant must present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). Defendant "must demonstrate a reasonable likelihood that [his] claim will ultimately succeed on the merits," State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), and "must do more than make bald assertions that he was denied effective assistance of counsel," State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). If his "allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Marshall, supra, 148 N.J. at 158.
A.
Defendant argues trial counsel was ineffective for consenting to the amendment of count one of the indictment from attempted robbery to robbery because "[t]here was a distinct possibility that a grand jury would not have indicted [defendant] for robbery, given the lack of evidence presented at trial that [he] committed a theft." In his pro se supplemental brief, defendant contends a second presentment would have allowed trial counsel to review the second transcript and "identify potential inconsistencies in the witnesses' statements between each version." In its supplemental decision, the PCR court rejected defendant's arguments, and found defendant "failed to set forth any factual basis supporting any prejudice he suffered with the amendment," noted that the facts supporting the two indictments were the same, and held "there was sufficient evidence at trial to support a verdict for second-degree [r]obbery." We agree.
An indictment may be amended:
to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.An indictment cannot be amended if such amendment "goes to the substance of the offense," Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:7-4 (2016), or "charge[s] a more serious offense." State v. Koch, 161 N.J. Super. 63, 66 (App. Div. 1978).
[R. 3:7-4.]
A defendant "is guilty of robbery, if in the course of committing a theft, he . . . [i]nflicts bodily injury or uses force upon another." N.J.S.A. 2C:15-1(a)(1). "An act shall be deemed to be included in the phrase 'in the course of committing a theft' if it occurs in an attempt to commit theft . . . ." N.J.S.A. 2C:15-1(a) (emphasis added). Conversely, "[a]ttempted robbery occurs where the actor intends a theft but is interrupted before he actually harms anyone or even threatens harm." State v. Samuels, 189 N.J. 236, 250 (2007).
In this case, the amendment to the indictment removed the language "in the course of purposely attempted [sic] to commit a theft, knowingly did use force upon [F.E.], contrary to the provisions of N.J.S.[A.] 2C:5-1 and 2C:15-1" from count one, and replaced it with "in the course of committing a theft, knowingly did use force upon [F.E.], contrary to the provision of and [sic] [N.J.S.A.] 2C:15-1." (Emphasis added). Although count one of the original indictment was labeled "Attempted Robbery," it set forth the statutory language of robbery, namely "in the course of . . . commit[ting] a theft," which by definition includes the "attempt to commit a theft," N.J.S.A. 2C:15-1(a). Since the amendment did not change the substance of the offense, there was no error.
We use initials to protect the privacy of the victim.
Moreover, defendant fails to proffer a factual basis supporting his allegation of prejudice suffered from trial counsel's consent to the amendment. Strategic decisions that are objectively reasonable, are "'within the wide range of reasonable professional assistance' to which an accused is entitled." State v. Arthur, 184 N.J. 307, 333 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Strategic decisions are "virtually unchallengeable," Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695, "except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial." State v. Castagna, 187 N.J. 293, 315 (2006) (alteration in original) (citation omitted).
Here, defendant baldly asserts that had there been two presentments, "trial counsel could [have] cull[ed] through the transcripts and identif[ied] potential inconsistencies in the witnesses' statements." However, he provides no certifications or affidavits to show there would have been such inconsistencies. See R. 3:22-10(c). Because defendant failed to proffer any evidence of trial counsel's deficient performance or the prejudice resulting therefrom, defendant failed to satisfy the Strickland/Fritz test, and no evidentiary hearing was required.
B.
Defendant argues trial counsel failed to conduct an adequate pretrial investigation. Offering no more than speculation, he contends an adequate investigation "may well have uncovered valuable impeachment evidence" and produced "essential witnesses to bolster the defense." The PCR court rejected defendant's claim of inadequate investigation, holding defendant failed to "show what investigatory steps should have been taken and what favorable results the investigation would have produced." Again, we agree.
Trial counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." State v. Porter, 216 N.J. 343, 353 (2013) (quoting State v. Chew, 179 N.J. 186, 217 (2004)). "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170; see also R. 3:22-10(c) ("Any factual assertion that provides the predicate for a claim of relief must be made by an affidavit or certification . . . .").
As the PCR judge noted, defendant has presented no certifications or affidavits alleging what exculpatory evidence would have been discovered had trial counsel engaged in a more thorough investigation. Because defendant failed to proffer any evidence of trial counsel's deficient performance or prejudice suffered due to counsel's pretrial investigation, we agree with the PCR court that an evidentiary hearing was not warranted on this issue. See State v. Jones, 219 N.J. 298, 311-12 (2014).
C.
In his pro se supplemental brief, defendant argues trial counsel was ineffective for failing to "point[] out the disparity in the testimony that was set forth at trial versus what the witnesses told the police officers in this case" and impeach the witnesses with said testimony. The PCR court held defendant "ha[d] not demonstrated with reasonable probability that 'pressured questions' would have in any way changed the outcome" of the trial. Moreover, the PCR court reasoned defendant "ha[d] not shown that any speculated inconsistencies[] would have been overcome by other testimony." Thus, the court held defendant failed to "demonstrate that trial counsel's cross-examination of the two witnesses was so objectively unreasonable to have resulted in the robbery conviction."
We agree with the PCR court that defendant failed to allege any specific facts supporting his proposition that a more pointed cross-examination would have elicited impeachable material. "Any factual assertion that provides the predicate for a claim of relief must be made by an affidavit or certification pursuant to Rule 1:4-4 and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing." R. 3:22-10(c). Defendant's conclusory statements that trial counsel did not effectively cross-examine the State's witnesses fail to support a finding that an evidentiary hearing was necessary here. See Marshall, supra, 148 N.J. at 158.
The remaining arguments in defendant's pro se supplemental brief lack sufficient merit to be addressed in a written opinion. R. 2:11-3(e)(2).
Because defendant failed to plead a prima facie case of ineffective assistance of counsel necessary to warrant an evidentiary hearing, we affirm the PCR court's denial of his first petition for PCR.
II.
Before a decision was rendered on his first PCR petition, defendant, acting pro se, filed a second PCR petition in which he echoed an argument made in his first petition, asserting he was denied the effective assistance of counsel because his attorney consented to the amendment of the indictment. The PCR court denied his request for the appointment of counsel and his petition as procedurally barred. In appealing from the denial of his second petition, defendant argues:
Defendant failed to include his second PCR petition in the record. As a result, this court relies on the PCR court's description of defendant's argument in its written opinion. --------
POINT I
THE EXCEPTIONS CONTAINED IN R. 3:22-12(2)(B) RELAX A BAR ON SECOND OR SUBSEQUENT PETITION FOR POST CONVICTION RELIEF [SIC] THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION ON AN ISSUE THAT WAS NOT MADE KNOWN UNTIL THE FIRST PCR HEARING WAS BEING DECIDED.
POINT II
THE PCR COURT IMPROPERLY DENIED DEFENDANT'S SECOND PETITION FOR POST CONVICTION RELIEF [SIC] WHERE A SUBSTANTIAL DENIAL OF DUE PROCESS WAS AT ISSUE IN THE INTEREST OF JUSTICE THE COURT SHOULD RELAX THE BAR IMPOSED UNDER R. 1:1-2.
POINT III
THE PCR COURT ERRED IN NOT ASSIGNING COUNSEL UNDER THE PROVISIONS OF R. 3:22-6(b).
As we have noted, the amendment of the indictment did not change the substance of the offense charged and was permissible pursuant to Rule 3:7-4. Therefore, as the PCR court held, defendant failed to show the good cause necessary to support the assignment of counsel.
The issue raised was presented in the first PCR petition. Pursuant to Rule 3:22-5, defendant is barred from raising an issue that has been adjudicated upon its merits in a prior petition. The fact that defendant filed his second petition before the adjudication of the contentions in the first petition does not relieve him of the procedural bar. Because this was his second petition, Rule 3:22-4(b) required its dismissal unless certain criteria were met, including "that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence." R. 3:22-4(b)(2)(B). Plainly, the factual predicate was known to defendant because the contention and its factual predicate were advanced in the first petition.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION