STATE OF NEW JERSEY v. JOHNNY WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6719-04T46719-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHNNY WILLIAMS,

Defendant-Appellant.

_______________________________________

 

Submitted October 5, 2006 - Decided November 9, 2006

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-07-1600.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

This is an application for post-conviction relief ("PCR") arising out of a sentence imposed in 1999. We affirm the Law Division's denial of such relief.

In July 1998 defendant Johnny Williams was indicted and charged with first-degree murder, third-degree possession of a weapon for an unlawful purpose, fourth-degree unlawful possession of a weapon, third-degree hindering apprehension, two counts of fourth-degree tampering with physical evidence, and third-degree unlawful possession of a credit card. The charges arose out of events on October 30, 1995, when defendant had a sexual rendezvous with the victim at a motel in Atlantic County. During the course of that sexual activity, defendant tightened his necktie around the victim's neck, supposedly to enhance her sexual pleasure. The necktie asphyxiated the victim. After he realized that she had expired, defendant wrapped her body in a bedspread. He deposited the corpse in a nearby wooded area, where it was discovered the following day. He then drove the victim's car to Virginia, where he abandoned it.

Defendant entered into a plea agreement with the Atlantic County Prosecutor, in which he agreed to plead guilty to the lesser-included offense of first-degree aggravated reckless manslaughter, in violation of N.J.S.A. 2C:11-4a. As part of the plea agreement, the State agreed to recommend to the sentencing judge a prison term of twenty-two years. The judge sentenced defendant to a twenty-two-year term consistent with the plea agreement.

Defendant subsequently appealed his sentence as excessive. After hearing oral argument on that contention, we issued an order on December 14, 1999 (Docket No. A-5191-98T4) affirming the sentence.

Three years later, in July 2002, defendant filed pro se a first PCR petition, once again seeking relief from his sentence. His petition was supplemented by a brief filed by defense counsel. The matter was referred to the same judge who had sentenced defendant in 1999.

After considering the briefs and oral argument, the PCR judge denied defendant's petition. This appeal ensued.

Defendant raises the following arguments:

POINT I

THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT WAS IMPROPERLY SENTENCED TO A TERM GREATER THAN THE PRESUMPTIVE TERM.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT SENTENCING.

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT IV

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

POINT V

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT VI

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT VII

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS.

We have carefully considered these arguments, and none of them persuade us to disturb defendant's sentence.

As the judge recognized, defendant received the bargained-for benefit of a plea agreement that spared him not only from a potential life sentence for murder, but also from the separate exposures he faced on the other six counts of the indictment. Defendant had a substantial prior criminal record of seven convictions (four of them for indictable offenses) and three violations of probation. The sentencing judge determined, from the factual basis supplied by defendant with his guilty plea, that the crime was committed in a "depraved manner." Instead of seeking medical attention when he could not revive the victim, defendant tied her body up and deposited her in the woods. Considering these and other pertinent aggravating factors, we previously held on the direct appeal of defendant's sentence that his twenty-two year prison term was "not manifestly excessive or unduly punitive and [did] not constitute an abuse of discretion." Order of December 14, 1999, citing State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984).

Defendant argues that he is entitled to be resentenced because the sentencing judge, without the benefit of jury findings, impermissibly relied on certain factual determinations in imposing a sentence that was two years above the former twenty-year presumptive term for reckless manslaughter. See N.J.S.A. 2C:44-1f(1)(a). In that regard, defendant relies upon State v. Natale, 184 N.J. 458, 489-90 (2005), which held that the Sixth Amendment requires the resentencing of a defendant who received a sentence higher than the presumptive term for his or her crime, based on judicial findings of fact other than those establishing prior convictions. However, defendant is not entitled to the retroactive benefit of the new rule of law announced in Natale, because his sentence was not on direct appeal when Natale was decided on August 2, 2005, and he had not raised a Sixth Amendment challenge to the State's presumptive sentencing scheme as part of his direct appeal. Id. at 494-95.

Defendant further argues that he received ineffective assistance of counsel at his sentencing proceedings and on his direct appeal. In particular, he contends that his trial counsel should have advocated for various mitigating factors under N.J.S.A. 2C:44-1b (specifically factors 2, 5, 7, 8 and 11), and also should have more aggressively resisted the court's findings on aggravating factors, including the aforementioned finding of depravity. He urges that his counsel on appeal was similarly deficient. These contentions are unavailing.

As the judge noted, defendant had the services of a very experienced and skilled attorney who negotiated his plea agreement. Even if that attorney had convinced the sentencing judge to acknowledge the mitigating factors now invoked by defendant, we agree with the judge's assessment in his PCR ruling that those factors would have been insufficient to outweigh the many aggravating factors which are patent from this record.

Defendant recklessly took the life of another human being, and then attempted to hide her remains to escape detection from the police. His extensive prior criminal record speaks for itself. He fails to demonstrate that he sustained any actual prejudice through the efforts of his trial and appellate counsel in the sentencing process. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)(requiring a demonstration of such "actual prejudice," as well as "deficient performance" by counsel); see also State v. Fritz, 105 N.J. 42, 58 (1987)(adopting the Strickland test under New Jersey law). Instead, we concur with the judge's observation that defendant received a "good deal . . . in light of what he was facing and in light of his prior record." We have reviewed the transcript of argument of the sentencing appeal. The transcript reveals that defendant's counsel went to great lengths to try to convince the panel of the excessiveness of the sentence, including a contention that the victim had contributed to her own death through her consensual conduct.

In sum, we are satisfied that no evidentiary hearing before the judge was required on this record. See State v. Preciose, 129 N.J. 451, 462 (1992)(authorizing the denial of a PCR application without a plenary hearing where the applicant fails to make a prima facie showing of ineffective assistance).

We considered defendant's remaining arguments and conclude that they lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

Our substantive disposition makes it unnecessary to reach the State's contention that defendant's PCR application also is procedurally barred under R. 3:22-4 and R. 3:22-5 and time-barred under R. 3:33-12, provisions which were not relied upon by the judge in his ruling.

(continued)

(continued)

8

A-6719-04T4

November 9, 2006