STATE OF NEW JERSEY v. RASHAWN JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5231-07T45231-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHAWN JOHNSON a/k/a

HASSAN JACKSON,

Defendant-Appellant.

 

Submitted December 14, 2009 - Decided

 
Before Judges Alvarez and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-06-2062.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Rashawn Johnson appeals from an August 21, 2007 order denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. We affirm.

Following defendant's referral to adult court from juvenile court pursuant to N.J.S.A. 2A:4A-26 and the subsequent jury trial in adult court, defendant was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant was sentenced on February 9, 2001, after appropriate mergers, to eighteen years imprisonment subject to nine years of parole ineligibility on the robbery conviction. Defendant also received a concurrent five-year term for the unlawful possession of a weapon conviction. Defendant's convictions were affirmed on direct appeal. State v. Rashawn Johnson, No. A-1203-01 (App. Div. Oct. 24, 2003). His petition for certification was denied. State v. Rashawn Johnson, 179 N.J. 372 (2004).

The facts adduced at trial were that on May 26, 1998, at approximately 11:00 p.m., defendant and two others approached the victim, Terrell Proctor, and demanded his valuables. Proctor did not feel threatened, because the assailants "were about half [his] size," until defendant drew a handgun and pointed it inches from Proctor's forehead. After taking the few dollars in Proctor's possession and his gold chain, the assailants ran. Proctor followed his assailants from a distance, encountering a police car as he did so. Those officers, together with others dispatched to the scene, were able to promptly apprehend the suspects. While chasing defendant, one of the officers saw him drop a silver handgun. Proctor identified defendant shortly after the arrest. Nearly three months later, on August 14, Proctor unsuccessfully attempted to identify defendant from a photo array. Proctor noticed a picture lying on the officer's desk, however, which he was able to identify as defendant.

The following point is raised on appeal:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING REGARDING COUNSEL'S ALLEGED INEFFECTIVENESS AT THE WAIVER HEARING, BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS WAS ESTABLISHED.

It bears noting that on direct appeal, defendant also raised the issue of the ineffectiveness of counsel during the waiver hearing. State v. Johnson, supra, (slip op. at 8-9). We deferred consideration as the "assertions involve evidence beyond the trial record and are best addressed on an application for post-conviction relief." Ibid. We commented that the waiver hearing record was notably sparse, containing neither explicit findings of fact nor correlated conclusions of law. Id. at 7. But as we also stated:

There was a complete absence of any testimony, expert or otherwise, that there existed a probability of rehabilitation. Instead, the evidence pointed to the opposite conclusion. The only expert report referred to in the record was one obtained from a Dr. Thompson, which was negative. Moreover, the violent nature of the offense, along with defendant's past record, which reflects a five-year history of delinquency starting with several simple assault offenses and progressing to the more serious offense of aggravated assault, militate against the conclusion that defendant is capable of rehabilitation, much less support a finding that the probability of defendant's rehabilitation substantially outweighs the reasons for his waiver. Simply put, defendant did not present any meaningful evidence to overcome the statutory presumption favoring referral to adult court. The judge's failure to provide reasons as required by the former statute was harmless.

[Id. at 8.]

In his cogent oral decision, the PCR judge relied on these findings regarding the waiver. He added that juvenile counsel was unable to obtain expert testimony in support of the likelihood of defendant's rehabilitation before reaching the age of nineteen, necessary in order to defeat waiver to adult court. N.J.S.A. 2A:4A-26e. Furthermore, counsel had no realistic prospect of minimizing defendant's five-year history of progressively worsening assaultive conduct. The judge also noted that, in addition to the damning juvenile history, defendant's prior records indicated that he had been suspended from school for conduct such as lighting matches in a hallway, absenteeism, and his involvement as the leader of a gang. Lastly, Proctor identified defendant as the person in the group who pointed the gun during the armed robbery, making the likelihood of rehabilitation all the more difficult to establish. Defendant does not now offer additional evidence, outside the trial record, in support of his position that counsel's failure to present more proofs at the waiver hearing constituted ineffective assistance.

Every criminal defendant is guaranteed the right to counsel pursuant to the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). The right to counsel means "'the right to the effective assistance of counsel.'" Id. at 686, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed 2d, 763, 773 n.14 (1970)). The New Jersey Constitution accords its citizens the same privilege. N.J. Const. art. I, 10. To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test enunciated in Strickland. First, defendant must show that counsel's performance truly was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must establish that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Strickland analysis was adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The "benchmark" for assessing ineffective assistance of counsel claims is whether counsel's professional errors "'materially contribut[ed]'" to the conviction of defendant. State v. Velez, 329 N.J. Super. 128, 134 (App. Div. 2000) (quoting Fritz, supra, 105 N.J. at 58).

In order to establish ineffective assistance of counsel, however, more than bare assertions must be made. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A defendant must show not only that counsel's performance truly was deficient but that these unprofessional errors prejudiced the outcome. Velez, supra, 329 N.J. Super. at 134. Given that defendant has not demonstrated what additional steps counsel could have taken at the waiver hearing other than the suggestion that she could have offered his parents as witnesses, he has not met the first prong of the test. This omission did not make his attorney's performance deficient; he therefore has not established that the outcome would have been different but for this allegedly unprofessional error.

Upon post-conviction review, "[a] petitioner must establish the right to such relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992) (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). We concur with the motion judge that defendant did not establish a prima facie case. He established neither that counsel could have done more to advocate against the waiver nor that the outcome would have been different had she done so.

Affirmed.

 

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A-5231-07T4

February 4, 2010