STATE OF NEW JERSEY v. JESSE J. JOHNS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JESSE J. JOHNS,

Defendant-Appellant.

_______________________________

June 15, 2015

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-06-0653.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jesse J. Johns appeals from a November 30, 2012 order denying his petition for post-conviction relief (PCR) arguing

THE PCR COURT ERRED BY NOT ORDERING THE RESENTENCING OF [DEFENDANT], BECAUSE HE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AT THE SENTENCING STAGE OF THE CRIMINAL PROCEEDING.

We disagree and affirm.

The following facts surrounding defendant's underlying conviction are pertinent to his PCR petition. On December 14, 2007, at approximately 9:00 p.m., defendant operated his vehicle at an excessive rate of speed, heading eastbound on Route 38 in Southampton. As he approached two vehicles travelling side-by-side and occupying both eastbound lanes ahead of him, defendant swerved across the double yellow center lane to pass, placing him in the path of opposing traffic. In an attempt to avoid defendant, a westbound driver unsuccessfully maneuvered his vehicle to the left. The cars collided head on.

After impact, the victim's car spun counter-clockwise into the eastbound lane and struck a second vehicle. A passenger from the head-on collision vehicle was pronounced dead at the scene; defendant and the remaining victims were transported to local hospitals and treated for various injuries, some of which were severe. Blood tests performed at the hospital confirmed defendant had a blood alcohol content of .132%.

Defendant waived formal indictment and pleaded guilty to an accusation charging him with second-degree vehicular homicide, N.J.S.A. 2C:11-5(a); third-degree assault by automobile, N.J.S.A. 2C:12-1(c)(2); and two counts of fourth-degree assault by automobile, N.J.S.A. 2C:12-1(c)(2). On June 10, 2008, he entered a negotiated agreement, pleading guilty to all four charges.1

At sentencing, the State recommended an aggregate ten-year term of imprisonment subject to 85% parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7, and a driver's license suspension of five years to life, as mandated by N.J.S.A. 2C:11-5(b)(4); however, the State conceded the length of suspension was at "the discretion of the [c]ourt."

On October 1, 2008, the judge imposed the State-recommended custodial term, finding several aggravating and no mitigating factors. The sentencing court found applicable, aggravating factor one, the nature and circumstances of the offense; two, the gravity and seriousness of harm inflicted on the victim; three, the risk defendant will commit another offense; and nine, deterrence. N.J.S.A. 2C:44-1(a)(1), (2), (3) and (9). The judge imposed a term of ten years for vehicular homicide, subject to an eight-and-a-half year parole disqualifier, and a lifetime suspension of defendant's driving privileges. Sentences on the remaining charges were ordered to run concurrent to the vehicular homicide term. Applicable fines and penalties were also imposed.

Defendant appealed his sentence as manifestly excessive. We considered his arguments on our excessive sentence oral argument calendar, and affirmed. See R. 2:9-11. Defendant did not seek certification.

On March 26, 2012, defendant filed a pro se PCR petition, asserting he was coerced into accepting the terms of the guilty plea and counsel was constitutionally ineffective because he failed to raise applicable mitigating factors prior to sentencing and to oppose the lifetime suspension of defendant's driving privileges. Counsel was appointed, and in a supporting certification attached to his petition, defendant stated he "repeatedly told . . . [counsel] that I needed to have a driver's license to work and fulfill my financial obligations after being released from prison. I asked him to do everything he could to convince the sentencing judge to not order a lifetime suspension . . . ."

The PCR judge denied defendant's petition, finding he failed to prove counsel's performance was deficient. Further, after considering defendant's arguments, he concluded the outcome would not have been different, as the sentencing court "could have weighed the factors on both a qualitative and quantitative basis and still sentence[d] as it did."

Defendant's collateral attack on the lifetime license suspension was also denied. The PCR judge noted defendant was warned prior to entering his plea "he would suffer a lengthy loss of his driver's license[] of up to a lifetime" and that, during the plea hearing, defendant "acknowledged . . . he was pleading freely and voluntarily." This appeal ensued.

"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459.

New Jersey has adopted the two-prong test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test for PCR review). To establish a prima facie case of ineffective assistance of counsel, a defendant must prove

First, . . . that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Under the first prong, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Thus, "th[e] test requires [a] defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "'Reasonable competence' does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

To meet the second prong, "[a] defendant must show that there is 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 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

In the context of a PCR petition challenging a guilty plea, the first Strickland prong is satisfied when a defendant establishes a reasonable probability he or she would not have pled guilty but for counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). The second prong is met when a defendant establishes a reasonable probability he or she would have insisted on going to trial. Ibid.

In our review, we defer to the PCR judge's findings so long as they are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). See State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." (citation and internal quotation marks omitted)). Legal conclusions which flow from those facts, however, are reviewed de novo. Nash, supra, 212 N.J. at 540-41.

Defendant maintains counsel was ineffective during sentencing because he "acquiesced to the State's recommendation" and "ma[de] no arguments on behalf of . . . defendant for a lesser sentence." Specifically, defendant argues mitigating factors six, the willingness to pay restitution; eleven, the imprisonment of the defendant would entail excessive hardship to himself or his dependents; and twelve, the willingness of the defendant to cooperate with law enforcement authorities, should have been raised and weighed against the aggravating factors found. See N.J.S.A. 2C:44-1(b)(6), (11) and (12). Defendant maintains "[h]ad [plea] counsel made the appropriate arguments . . . there is a reasonable probability that [defendant] would have received a lesser sentence without a lifetime driver's license suspension."2

The record fails to support these assertions. The sentencing judge noted defendant had defaulted on child support payments for his two dependent children, who did not reside with him, and the State's request for restitution was withdrawn because there was no evidence defendant had the ability to pay restitution.

The application of mitigating factor twelve is equally unsupported. First, sentencing courts are expressly prohibited from considering guilty pleas when "imposing a sentence of imprisonment." N.J.S.A. 2C:44-1(c)(1). Second, courts generally apply this factor when criminal defendants agree to assist in the prosecution of co-defendants or assist in solving other crimes. See e.g., State v. Dalziel, 182 N.J. 494, 498 (2005); State v. Alexander, 403 N.J. Super. 250, 259-60 (App. Div. 2008); State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008). That is not the case here.

Defendant potentially faced an aggregate sentence of up to twenty years on these charges and those in the separate indictment. Moreover, the benefit derived by his waiver of formal indictment was tempered by the terms of the negotiated plea agreement. Charges against defendant in the separate indictment for eluding and refusing to submit to a breathalyzer test were dismissed and sentences for all charges were recommended to run concurrently. Defendant's "cooperation" in reaching a negotiated plea need not be again weighed in his favor at sentencing. See State v. Teat, 233 N.J. Super. 368, 372-73 (App. Div. 1989) (noting the prohibition of double counting applies equally to the finding of both aggravating and mitigating factors).

Following our review, we conclude, as did the PCR judge, counsel did not ignore facts supporting applicable mitigating factors, which would have resulted in a lesser sentence than the recommended ten years imposed. Cf. State v. Simon, 161 N.J. 416, 444 (1999) (recognizing the deference afforded to negotiated guilty pleas). Strickland's performance prong has not been met.

We also reject defendant's challenge to the lifetime suspension of his driving privileges. The sentencing judge found defendant's prior criminal history contained several convictions for moving violations, "including driving while suspended, careless driving, [and] leaving the scene of an accident," all of which reflect his disregard for complying with motor vehicle laws. Importantly, defendant had a 2000 out-of-state conviction for driving under the influence, which is considered when imposing "an enhanced noncustodial sentence" for repeat offenders. State v. Regan, 209 N.J. Super. 596, 605 (App. Div. 1986) (citation and internal quotation marks omitted). Further, the trial judge weighed the fact that prior attempts for publically-funded substance abuse rehabilitation were not engaged by defendant, who continued drug and alcohol abuse. Accordingly, the decision to suspend defendant's driving privileges indefinitely was amply supported by substantial credible evidence in the record and we discern no facts that would have altered the sentencing judge's reasoned determination for imposing a lifetime suspension.

Finally, we reject the notion counsel was ineffective during sentencing. Defendant's decision to again drive while drunk resulted in the death of a seventeen-year-old, the permanent physical deformity of another teen, as well as causing injuries to two other drivers. Defendant ignored all prior opportunities to remediate his substance abuse or abide by motor vehicle laws that are designed to protect the public safety. Under these circumstances, we conclude advancing arguments to promote defendant's desire he not suffer a lifetime suspension would have had no impact on this portion of his sentence.

Affirmed.

1 At the time, defendant also faced charges in a separate unrelated indictment regarding a May 27, 2007 incident for eluding officers and refusing to submit to a breath test. The State agreed to dismiss these charges in exchange for defendant's guilty plea to the current matter.

2 The State argues defendant's sentencing challenge is procedurally barred because it was raised on direct appeal and rejected. See R. 3:22-5 ("A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or . . . in any appeal taken from such proceedings."). Although a defendant is precluded from raising excessive sentencing arguments in a PCR petition, see R. 3:22-2(c); State v. Flippen, 208 N.J. Super. 573, 575 n.2 (App. Div. 1986), he or she may challenge the effectiveness of counsel at sentencing. See State v. Hess, 207 N.J. 123, 129, 154 (2011) (holding the failure to advance applicable mitigating factors for the court's consideration during sentencing constitutes ineffective assistance of counsel).