STATE OF NEW JERSEY v. RODNEY JOHNSON

NOT FOR PUBLICATION WITHOUT THE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.

RODNEY JOHNSON,

Defendant-Appellant.

___________________________________

August 7, 2014

Submitted February 26, 2014 Decided

Before Judges Fuentes and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-03-00305.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Rodney Johnson appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.

Defendant was tried before a jury in June 2006 and convicted of second degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2); murder during the commission of an armed robbery (felony murder), N.J.S.A. 2C:11-3(a)(3); two counts of first degree armed robbery, N.J.S.A. 2C:15-1; third degree knowing possession of a handgun without a permit, N.J.S.A. 2C:39-5b; second degree knowing possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and second degree possession of a firearm by certain persons not to have weapons, N.J.S.A. 2C:39-7b. On September 21, 2006, the court sentenced defendant to an aggregate term of life imprisonment, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, to run consecutive to sentences he was serving on unrelated matters.

We affirmed defendant's conviction and sentence on direct appeal, State v. Johnson, No. A-6330-06 (App. Div. Apr. 9, 2010) (slip op.), and the Supreme Court denied defendant's petition for certification. 203 N.J. 440 (2010). Defendant filed this PCR petition on February 10, 2011, alleging ineffective assistance of trial counsel in failing to conduct a proper investigation and failing to object to the trial judge's decision to close the courtroom during jury selection, and ineffective assistance of appellate counsel in failing to argue the denial of a public trial issue on direct appeal.

The trial court assigned counsel to represent defendant in prosecuting the PCR petition. PCR counsel filed a brief in support of defendant's claims of ineffective assistance of counsel. The matter came for argument before the PCR judge on March 29, 2012. After considering the arguments presented, the PCR judge denied defendant's petition without an evidentiary hearing in an order dated March 29, 2012.

Defendant now appeals raising the following arguments.

POINT I

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO TRIAL, APPELLATE AND PCR COUNSELS' INEFFECTIVENESS; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSELS' INEFFECTIVENESS. (Partially Raised Below)

A. Trial And Appellate Counsel Failed To Raise The Issue Of Defendant's Being Deprived Of His Constitutional Right To A Public Trial; PCR Counsel Failed To Adequately Advance The Issue Of Trial And Appellate Counsels' Ineffectiveness Regarding Defendant's Being Deprived Of His Constitutional Right To A Public Trial. (Partially Raised Below)

B. Trial Counsel Failed To Provide Defendant With Discovery, Failed to Consult With Defendant And Failed To Conduct An Adequate Investigation.

We will not recite the facts presented at trial that led to defendant's conviction. Instead, we incorporate by reference the facts discussed at length in our unpublished opinion deciding defendant's direct appeal. Johnson, supra, No. A-6330-06 (slip op. at 5-18). Defendant's arguments attacking his conviction based on ineffective assistance of counsel lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We briefly note that the issue concerning the trial court's decision to close the courtroom during jury selection was extensively addressed by this court on direct appeal, and rejected as a basis to overturn defendant's conviction. Id. (slip op. at 21-31). Defendant is thus barred from re-litigating this issue in the context of a PCR petition. R. 3:22-5.

Affirmed.