STATE OF NEW JERSEY v. KEVIN B. JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5152-07T45152-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN B. JOHNSON,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 8, 2010 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 02-10-1301 and 03-08-1097.

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

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kevin B. Johnson appeals from a March 18, 2008 order that denied his petition for post-conviction relief (PCR). We reject defendant's argument that the PCR judge erred when she: 1) denied his motion to vacate his guilty plea, despite his claim that the factual basis he provided was insufficient to support his conviction for second-degree burglary; 2) refused to grant an evidentiary hearing on defendant's claim that both trial and appellate counsel rendered ineffective assistance by failing to realize that his factual basis was insufficient; and 3) denied his application for a change of venue during the PCR proceeding. We affirm.

I.

On January 20, 2004, defendant pled guilty to three different charges of burglary, each one contained in a separate charging document. In particular, under Indictment 02-10-1301, he pled guilty to second-degree burglary, N.J.S.A. 2C:18-2(b)(2). On both Indictment 03-08-1097 and Accusation 19-01-04, defendant pled guilty to one count of third-degree burglary, N.J.S.A. 2C:18-2(a)(1). Defendant's claims on appeal concern only his second-degree conviction, for which he entered the following factual basis during the plea colloquy:

Q: On August 12, 2002, . . . did you find yourself with Jameel Parrott in the Borough of Carteret . . .?

A: Yes, I did.

Q: And did there come a point in time when you and he entered into [a home on] Pershing Avenue?

A: Yes, sir.

Q: What was your intent when you went into that structure?

A: To burglarize the house.

Q: To take property from within?

A: Exactly. Uh-hum.

Q: Did you know the owners of the house?

A: No, I didn't.

Q: You, in fact, entered it with Jameel; is that right?

A: Yes, I did.

Q: Both of you took property from inside there?

A: Yes.

Q: And then you left, right?

(defendant shakes his head).

Q: During the course of the burglary, money was taken; is that right?

A: Yes.

Q: You later found out that also guns were taken; is that right?

A: Yes.

Q: You knew about the guns?

A: Yes.

Q: Now, you didn't have any permission or authorization, or otherwise, to enter that location?

A: No.

Q: Correct?

A: Yes.

[(Emphasis added).]

After finding that each of the three factual bases offered by defendant was sufficient to support the crimes charged, and that defendant had entered those guilty pleas knowingly and voluntarily, the judge accepted defendant's pleas of guilty. The judge sentenced defendant on April 2, 2004 to a ten-year term of imprisonment with an eight and one-half year parole ineligibility term on Indictment 02-10-1301, and to five-year terms of imprisonment on the other two charges, concurrent to each other and concurrent to the sentence imposed on the second-degree charge under Indictment 02-10-1301.

During both an excessive sentencing oral argument (ESOA) hearing, R. 2:9-11, and during a Natale remand, State v. Natale, 184 N.J. 458 (2005), defendant claimed that his sentence was excessive. At no time, however, did he argue, either before the ESOA judges or before the Law Division during the Natale remand, that the factual basis he provided for the second-degree burglary charge was insufficient and that he should therefore be permitted to withdraw the ensuing guilty plea.

Not until July 12, 2007, when defendant filed the PCR petition that is the subject of this appeal, did defendant challenge the adequacy of the factual basis he had provided on January 20, 2004. In that petition, he asserted that appellate counsel was ineffective for failing to challenge on appeal the validity of his guilty plea. He also maintained that trial counsel rendered ineffective assistance when he failed to recognize that defendant's factual basis could not support the second-degree burglary conviction, and thereby permitted defendant to be convicted of a crime for which he had entered an insufficient guilty plea. Defendant also argued that because his factual basis was insufficient, he should be permitted to withdraw his guilty plea.

In a comprehensive and well-reasoned oral opinion, Judge Venezia denied defendant's motion to withdraw his guilty plea. In particular, relying on State v. Mitchell, 126 N.J. 565, 578 (1992), the judge reasoned that "[a]s long as a guilty plea is knowing and voluntary, a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and, thus, does render illegal a sentence imposed without such a basis." The judge observed that "a factual basis is constitutionally required" only when there are indicia such as "a contemporaneous claim of innocence," which the judge found was not the case. For those reasons, the judge denied defendant's motion to withdraw his guilty plea.

The judge also observed that defendant had not challenged or disputed any of the incriminating material contained in his pre-sentence investigation (PSI), see R. 3:21-2(a). She held that the PSI, when considered in tandem with defendant's factual basis, were together more than sufficient to support a second-degree burglary conviction.

Before the PCR petition could be heard, defendant filed a motion to change venue. Defendant argued that because a Middlesex County sheriff's officer had been the victim of one of the three robbery counts to which he had pled guilty, he could not receive a fair hearing on his PCR petition unless the proceeding was transferred to a different county. Judge Venezia denied defendant's motion, reasoning that the Sheriff's Department provides courthouse security in every courthouse in the State, and therefore a change of venue would accomplish nothing.

Turning to defendant's claim that trial counsel was ineffective, the judge rejected the claim as an instance of the "bald assertion" that all applicable Supreme Court precedent requires a judge to reject.

On appeal, defendant raises the following claims:

I. THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTIONS FOR POST-CONVICTION RELIEF; DEFENDANT-APPELLANT'S PLEA SHOULD HAVE BEEN VACATED BECAUSE THE FACTUAL BASIS ARTICULATED AT THE TIME OF THE PLEA DID NOT SUPPORT THE PLEA TO SECOND-DEGREE ARMED BURGLARY. ADDITIONALLY, THE PLEA WAS NOT ENTERED KNOWINGLY

A. The Factual Basis Elicited at the Time of the Plea Did Not Support a Plea and Conviction of Second-Degree Armed Burglary

B. The Defendant-Appellant's Plea Was not Entered Knowingly; Therefore the PCR Court Erred in its Decision to Deny Defendant's Application

II. THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION FOR POST-CONVICTION RELIEF; TRIAL-LEVEL COUNSEL WAS INEFFECTIVE IN HIS FAILURE TO REALIZE NO SECOND DEGREE BURGLARY FACTUAL BASIS COULD HAVE BEEN GIVEN, AND DEFENDANT-APPELLANT WAS PREJUDICED THEREBY. APPELLATE COUNSEL WAS INEFFECTIVE IN THE FAILURE TO RAISE THIS ISSUE

III. DEFENDANT-APPELLANT SHOULD HAVE BEEN GRANTED AN EVIDENTIARY HEARING AS AN ALTERNATIVE TO VACATION OF THE PLEA AND SENTENCE

IV. DEFENDANT-APPELLANT WAS WRONGFULLY DENIED HIS APPLICATION FOR A CHANGE OF VENUE FOR THE POST-CONVICTION RELIEF MOTION.

II.

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate 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 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

In Point I, defendant maintains that because the factual basis he provided was inadequate as a matter of law, the judge erred when she denied his motion to vacate his guilty plea. He maintains that his factual basis was inadequate to support the armed element of second-degree burglary. He points to the question, "you later found out that also guns were taken, is that right?" Defendant answered "yes," to which his attorney then asked him, "you knew about the guns?" Again, defendant answered "yes." He maintains that the answers he provided were insufficient to establish that at the time he and Parrott were still in the apartment, he was already aware that the guns had been stolen. He maintains that his answer merely demonstrates that at some point after the crime had been committed, he learned that Parrott had stolen the guns.

In denying defendant's motion, the judge relied on the Court's reasoning in Mitchell, supra, where the Court held:

Our procedural Rules do require a judge to elicit a factual basis for a guilty plea. R. 3:9-2. As long as a guilty plea is knowing and voluntary, however, a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly "voluntary" decision on his own.

[Mitchell, supra, 126 N.J. at 577.]

As in Mitchell, defendant never asserted a claim of innocence. In fact, when Judge Venezia commented on that particular failure of defendant's proofs, defendant argued that his failure to supply a sufficient factual basis for a guilty plea to second-degree burglary was the functional equivalent of an assertion of innocence. We disagree. Defendant's argument is an instance of the hyper-technical approach to a defendant's factual basis that the Court rejected in Mitchell.

Defendant has never, either before the Law Division or before us on appeal, asserted his innocence. Thus, even if his factual basis was inadequate, which, as we discuss below, it was not, the judge was not required to vacate defendant's guilty plea. Ibid. Unquestionably, defendant's guilty plea was knowing and voluntary, as is evident by the judge's specific findings on that issue at the time defendant entered his guilty plea. Defendant's fully responsive and clear answers to all of the questions posed to him during the plea colloquy clearly establish that his plea was knowing and voluntary. Thus, even if there was a defect in defendant's factual basis, his guilty plea was entered knowingly and voluntarily, and thus he was not entitled to withdraw it. Ibid.

Moreover, contrary to defendant's assertions, his guilty plea was not inadequate. Defendant's claim on that subject rests upon his contention that he did not learn until after he and Parrott had left the victim's residence that Parrott had stolen two handguns that Parrott had found inside the home. Therefore, he maintains that his guilty plea was insufficient to satisfy the requirement of N.J.S.A. 2C:18-2(b)(2) that the unauthorized entry into a home occurred while a defendant was "armed with . . . a deadly weapon."

In evaluating the adequacy of a guilty plea, a judge is not required to confine the inquiry to the four corners of the factual basis defendant tenders during his plea colloquy. Mitchell, supra, 126 N.J. at 581-82. The court may consider "a wide range of information sources, including all testimony at the plea and sentencing hearings, the pre-sentence report, as well as other sources unique to a particular case, such as the proceedings [involving a] co-defendant[] . . . ." Ibid. The record demonstrates that defendant's pre-sentence report, which he read and approved, establishes that it was defendant who took the firearms that were stolen from the victim's apartment and it was defendant who later fenced them in Elizabeth. Defendant told police that only he could tell them where the stolen firearms could be found. The plea hearing in co-defendant Parrott's case also establishes that defendant was the one who actually stole the guns during the burglary.

The record negates defendant's claim that he did not learn about the theft of the guns until after he and Parrott had left the victim's apartment. Thus, viewing the entire record, as Mitchell requires, ibid., we are satisfied that defendant's factual basis establishes all of the elements of second-degree burglary. Judge Venezia properly denied defendant's motion to withdraw his guilty plea. We thus reject the claim defendant advances in Point I.

III.

In Points II and III, defendant maintains that trial counsel rendered ineffective assistance by failing to realize that no second-degree guilty plea was, or could have been, rendered, and that the judge committed reversible error when she failed to afford him an evidentiary hearing on that claim. As we have already discussed, defendant's guilty plea was sufficient. Under such circumstances, counsel did not render ineffective assistance when he, according to defendant "fail[ed] to realize no second-degree burglary factual basis could have been given." For the same reasons, the judge was not obliged to afford defendant an evidentiary hearing on his claim. No evidentiary hearing is required unless a defendant establishes a prima facie case, State v. Preciose, 129 N.J. 451, 462 (1992), which defendant did not do here. We thus reject the claims defendant advances in Points II and III.

IV.

Last, we consider defendant's claim that Judge Venezia wrongly denied his motion for a change of venue for his PCR hearing. This claim lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). Suffice it to say, as Judge Venezia correctly recognized, there is not a courthouse in this state in which the Sheriff's Department does not provide security. Thus, changing venue to a different county was not required and would have accomplished nothing. Moreover, there is no evidence in the record to suggest that Judge Venezia knew the sheriff's officer who was the victim of the crime to which defendant pled guilty. We thus reject the claim defendant advances in Point IV.

Affirmed.

 

Defendant does not rely upon State v. Slater, 198 N.J. 145 (2009), which had already been decided when he submitted his brief on appeal. Slater addressed the criteria a judge should apply when deciding a defendant's motion to withdraw a guilty plea. Id. at 158-62. Slater lends no support to defendant's claim, as he has not asserted a colorable claim of innocence; his reasons for withdrawal of his plea are insubstantial; his guilty plea was entered pursuant to a plea bargain agreement; and withdrawal of the plea would have resulted in unfair prejudice to the State because nearly four years had passed. See ibid.

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A-5152-07T4

March 19, 2010