STATE OF NEW JERSEY v. MONTA ALLEN JOHNSON

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

MONTA ALLEN JOHNSON,

Defendant-Appellant.

_______________________________

April 10, 2014

Submitted March 18, 2014 Decided

Before Judges Fisher and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 00-07-00876.

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

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Monta Allen Johnson appeals from the July 25, 2012 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

After a jury convicted defendant, he was sentenced to an extended term of fifty years in prison with a twenty-five-year term of parole ineligibility for the crimes of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree burglary, N.J.S.A. 2C:18-2; and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). The trial evidence is set forth at length in our prior opinion. State v. Johnson, No. A-2319-02 (App. Div. Jan. 27, 2005) (slip op. at 4-11). Defendant testified at trial that the then eighteen-year-old victim consented to sexual intercourse. He also denied punching the victim's friend in the face and breaking her nose prior to trial to intimidate her so she would not testify against him. We reversed on appeal due to improper comments to the jury by the prosecutor, because the jury should not have been informed that defendant was convicted in municipal court of assaulting the victim's friend, and because a forceful limiting instruction as to the other bad acts testimony should have been given. Id. slip op. at 16-20. Although we agreed that the evidence of prior bad acts was admissible as "relevant to a material issue in dispute," we remanded for a N.J.R.E. 104 hearing to determine whether the bad acts were demonstrated by clear and convincing evidence. Id. slip op. at 14.

Prior to a retrial, defendant pleaded guilty to first-degree aggravated sexual assault with an agreement that he would receive not more than fifteen years in prison, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 and registration as a sex offender pursuant to N.J.S.A. 2C:7-2. He received this sentence and appealed the length of the sentence only. We affirmed by order on July 28, 2010, and our Supreme Court denied certification, 205 N.J. 102 (2011).

Defendant raises the following issues,

POINT I: THE TRIAL JUDGE IMPROPERLY DENIED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING.

A. COUNSEL'S FAILURE TO MOVE TO EXCLUDE N.J.R.E. 404(b) EVIDENCE

B. THE FAILURE TO MOVE TO EXCLUDE TESTIMONY REGARDING DEFENDANT'S INVOCATION OF HIS RIGHT TO REMAIN SILENT

C. COUNSEL'S FAILURE TO INVESTIGATE

A deprivation of the constitutional right to effective assistance occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 57-58 (1987) (adopting the two-part Strickland test in New Jersey).

In cases brought by a defendant who has entered a guilty plea, the first prong is met where the defendant can show that counsel's representation fell short of the guarantees established by the Sixth Amendment. State v. Parker, 212 N.J. 269, 279 (2012) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The second component is shown by establishing a reasonable probability that the defendant would not have pleaded guilty but for his counsel's errors. Id. at 279-80 (citations omitted).

In order to prevail on a claim of ineffective assistance of counsel, a petitioner may need to rely on facts outside of the trial record to prove constitutionally deficient representation. The trial court is vested with discretion under Rule 3:22-10 to conduct an evidentiary hearing to determine additional facts surrounding counsel's trial representation as well as to elicit the attorney's testimony. State v. Preciose, 129 N.J. 451, 462 (1992). However, the trial court should hold an evidentiary hearing only "if a defendant has presented a prima facie claim in support of [PCR]." Ibid. In order to establish a prima facie case, defendant must demonstrate "the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington . . . ." Id. at 463. When determining whether defendant has set forth a prima facie case, the court will view the factors in a light most favorable to the defendant. Id. at 462.

Defendant argues that his plea counsel failed to seek a hearing to exclude the prior bad act evidence. This pre-trial motion is routinely heard immediately prior to trial. By pleading guilty, defendant gave up his opportunity to pursue such pre-trial motions. Defendant was well aware from our decision that had he proceeded to trial he would have participated in a N.J.R.E. 104 hearing regarding his assault of the victim's friend after the crimes charged occurred. Nevertheless, he chose to plead guilty.

Defendant also argues that prior to his plea of guilty his attorney should have moved to exclude any trial testimony of his apparent discomfort when he invoked the right to remain silent at the end of the police interview. This motion was made and denied at his first trial and was not raised on appeal. The retrial judge would have been bound by that decision as law of the case as the determination was not altered on appeal. See Lombardi v. Masso, 207 N.J. 517, 538 (2011) (explaining that a legal decision made in a particular matter should be respected by all lower or equal courts during the pendency of that case).

Finally, defendant argues that his plea counsel should have investigated his claim that the victim could not have called the police from the payphone she claimed to use because that payphone did not exist. He submitted no evidence to the PCR judge that demonstrated that the payphone did not exist, merely supplying his "bald assertion" of that fact, which is not sufficient to trigger an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). The precise telephone used was also not crucial to the victim's credibility in light of the other strong evidence supporting her version of events.

Defendant accepted a plea arrangement that guaranteed him a significantly reduced sentence from that imposed after his first trial. He presents no indication of a reasonable probability that had his plea counsel pursued the motions he now seeks, he would not have pleaded guilty.