STATE OF NEW JERSEY v. HAASHIM JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2532-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HAASHIM JOHNSON,

Defendant-Appellant.

_________________________________

March 13, 2013

Submitted January 28, 2013 - Decided

Before Judges Sabatino and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 00-06-2161, 00-06-2001, 99-09-2948, 00-01-0228, and 01-08-2429.1

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This post-conviction relief ("PCR") matter concerns defendant Haashim Johnson's conviction of several offenses2 after an April 2001 jury trial in Camden County ("the trial case"), as well as his subsequent negotiated guilty plea in August 2003 to various offenses charged in four other Camden County indictments and a Gloucester County indictment ("the plea cases").3

Defendant was initially sentenced in July 2003 to a nineteen-year aggregate custodial term in the trial case. In October 2003, the court sentenced defendant, consistent with the plea agreement, to an aggregate eight-year term in the plea cases. That eight-year aggregate sentence was made consecutive to the sentences that defendant was already serving on other federal and state offenses.

We affirmed defendant's convictions in the trial case on direct appeal, but remanded for resentencing. State v. Johnson, No. A-267-04 (App. Div. Apr. 10, 2006). On remand in July 2006, defendant's aggregate sentence in the trial case was reduced by one year to eighteen years. Defendant did not appeal the convictions or sentences in the plea cases.

Defendant filed two pro se PCR petitions. First, on August 5, 2008, he filed a timely petition seeking review of his conviction of aggravated assault resulting from the August 2003 plea agreement and his sentencing in October 2003. This petition was filed within the five-year time frame prescribed by Rule 3:22-12. He filed a second petition on or about September 19, 2008, seeking relief from his convictions produced in the trial case. That second petition was filed about two months beyond five years of his July 3, 2003 sentencing, and thus was presumptively untimely under Rule 3:22-12.

The PCR petitions raised a variety of contentions as to both sets of convictions, including claims that defendant had been deprived of a fair trial and a just sentence because of alleged errors by the trial court. Defendant also asserted that he had been deprived of the effective assistance of counsel, in violation of the Sixth Amendment of the United States Constitution. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

Among other things, defendant contended with respect to the trial case that the jury instructions and verdict sheets were flawed and that they deprived him of due process. He complained that the jury charge referred at one point to "conspiracy," and provided the definition of a conspiracy, even though he was never charged with conspiracy. He further asserted that the jury instructions relating to the charge of possession of a firearm while committing a drug offense were sequenced in a fashion unduly prejudicial to him. He likewise complained about the format of the verdict sheet. In addition, defendant asserted that the sentences that were imposed in both the trial case and in the plea cases were excessive and improper, particularly as to the court's imposition of consecutive sentences.

After briefing and oral argument, the PCR judge, Hon. Edward J. McBride, Jr., J.S.C., denied defendant's petitions on July 9, 2010. In his oral opinion, Judge McBride concluded that defendant's arguments were procedurally barred in various respects under Rule 3:22-4 (issues that could have been raised on direct appeal), Rule 3:22-5 (issues already raised on appeal), and Rule 3:22-12 (untimeliness). Judge McBride further concluded that defendant's substantive arguments for relief lacked merit. The judge did not conduct an evidentiary hearing on any of the issues.

In his present appeal, defendant advances the following points for our consideration:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS TO A FAIR TRIAL AND A JUST SENTENCE WERE VIOLATED

POINT II

THE PCR COURT MISAPPLIED ITS DISCRETION BY APPLYING THE PROCEDURAL BARS OF RULE 3:22-4, Rule 3:22-5, and Rule 3:22-12

POINT III

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL

POINT IV

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

POINT V

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF

(A)

IMPOSITION OF CUSTODIAL TERMS IN EXCESS OF THE THEN-EXISTING PRESUMPTIVE TERMS, EVEN IF AUTHORIZED BY THE PLEA AGREEMENT, WERE "ILLEGAL" BECAUSE THEY VIOLATED THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A JUST SENTENCE

(B)

TRIAL COUNSEL'S FAILURE TO ARGUE AGAINST IMPOSITION OF CONSECUTIVE TERMS AT BOTH THE "TRIAL" SENTENCING AND THE "PLEA" SENTENCING WAS INEFFECTIVE ASSISTANCE OF COUNSEL

We have fully considered these points, bearing in mind that a PCR petition is "a defendant's last chance to challenge the fairness and reliability of a criminal [conviction] in our state system." State v. Nash, 212 N.J. 518, 540 (2013) (internal quotation marks omitted). Having done so, we affirm the denial of defendant's petitions, substantially for the cogent reasons expressed in Judge McBride's bench opinion. We add only a few comments on certain issues worth underscoring.

Most, if not all, of defendant's present arguments were either issues that could have been raised on direct appeal, see Rule 3:22-4, or were raised unsuccessfully in the appeal of the trial case, see Rule 3:22-5. As Judge McBride correctly recognized, these procedural flaws permeate defendant's PCR application.4

We agree with Judge McBride that defendant was not harmed by the manner in which the jury instructions were presented. Although we recognize that defendant was not charged in the indictment with the crime of conspiracy under N.J.S.A. 2C:5-2, there was no "other crimes" evidence of a conspiracy introduced at trial that could have prejudiced him. Moreover, a jury instruction is not itself evidence. Consequently, the brief definition of a conspiracy inadvertently mentioned by the trial court during the midst of the charge was not clearly capable or producing an unjust result. As the Supreme Court recently reaffirmed in Nash, "[a] jury verdict that has been upheld on appeal 'should not be disturbed except for the clearest of reasons.'" Id. at 541 (quoting State v. Ways, 180 N.J. 171, 187 (2004)).

With respect to defendant's arguments contesting his sentencing, we note that PCR is generally not an appropriate process to challenge a criminal sentence. See, e.g., State v. Flores, 228 N.J. Super. 586, 595-96 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). In addition, we agree with Judge McBride that there is nothing about the severity or composition of the sentences that were imposed to warrant intervention. See State v. Bieniek, 200 N.J. 601, 612 (2010) (discouraging reviewing courts from second-guessing the discretion exercised by sentencing judges).

We also concur with Judge McBride's determination that an evidentiary hearing was unnecessary in this matter, as defendant failed to present a prima facie case to necessitate such a hearing. See State v. Preciose, 129 N.J. 451, 462 (1992).

The balance of defendant's arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 This matter also concerns defendant's guilty plea to count six of Gloucester County Indictment No. 01-06-0509Z.

2 The convictions in the trial case, Camden County Indictment No.

00-06-2161, included second-degree eluding, N.J.S.A. 2C:29-2b; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; fourth-degree possession of a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10a(3); third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5b(11); and second-degree possession of a weapon in the course of an enumerated CDS offense, N.J.S.A. 2C:39-4.1. The jury found defendant not guilty of two counts of aggravated assault.

3 The convictions included three counts of aggravated assault, N.J.S.A. 2C:12-1b(1), on Camden County Indictment No. 00-06-2001; second-degree eluding, N.J.S.A. 2C:29-2b, on Camden County Indictment No. 99-09-2948; third-degree eluding, N.J.S.A. 2C:29-2, on Camden County Indictment No. 00-01-0228; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, on Camden County Indictment No. 01-08-2429; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, on Gloucester County Indictment No. 01-06-0509Z. Various other counts in these indictments were dismissed pursuant to the plea agreement.

4 We need not reach the judge's separate finding that the appeal from the trial case was time-barred under Rule 3:22-12.