STATE OF NEW JERSEY v. LESLIE H. 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NOT FOR PUBLICATION WITHOUT THE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.

LESLIE H. JOHNSON, a/k/a

LESLIE H. JOHNSON, JR.,

Defendant-Appellant.

__________________________________________________

June 12, 2014

Submitted February 24, 2014 Decided

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-05-0960.

Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, 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 Leslie Johnson appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was indicted for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); first-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(6) (count two); third-degree possession of a CDS with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three); and second-degree possession of a CDS, with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four).

On January 7, 2011, defendant pled guilty pursuant to a negotiated plea agreement to count two, as amended to second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(6), and count three, third-degree possession of a CDS with intent to distribute in a school zone, N.J.S.A. 2C:35-7.1

Pursuant to the plea agreement, the State agreed to dismiss counts one and four of the indictment, and recommended that defendant be sentenced to a ten-year term of imprisonment, with a five-year period of parole ineligibility. The court sentenced defendant to a nine-year term of imprisonment on count two, and a four-year term of imprisonment on count three to run concurrent to count two, without any period of parole ineligibility on either count.

Defendant did not take a direct appeal, but filed a petition for PCR on November 15, 2011, wherein he alleged counsel was ineffective for: (1) advising him to plead guilty, when the evidence did not support the charges against him; and (2) not properly investigating the facts of the case, or otherwise failing to prepare the case for trial.

On December 6, 2012, Judge Paul M. DePascale held a non-evidentiary hearing on defendant's petition for PCR. The judge denied defendant's application, finding that he had not established a prima facie case of ineffective assistance of counsel. In his decision, the judge held that defendant's assertions were "factually unsupported." The judge noted that, while defendant claimed his attorney did not properly investigate the case, there was no specific reference to any fact that counsel failed to investigate, or how such evidence would have affected the outcome of the case. Therefore, the judge held that defendant's application failed to meet either prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

This appeal followed.

II.

On appeal, defendant raises the following issue for our consideration:

POINT ONE

THE POST CONVICTION RELIEF COURT ERRED IN DENYING DEFENDANT'S PETITION WITHOUT HOLDING AN EVIDENTIARY HEARING.

We find no merit in defendant's argument.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland. Id. at 463. That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

However, "[w]hen a guilty plea is part of the equation, [the Court has] explained that '[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

"[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the 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." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

With these standards in mind, we review defendant's contentions. Defendant argues that he established a prima facie case of ineffective assistance, and therefore, the PCR court erred by failing to conduct an evidentiary hearing on his petition. Specifically, defendant claims that his attorney failed to investigate the case adequately. He claims that he gave his attorney the names of persons and evidence that could have been exculpatory. However, as the PCR court determined, these were bald assertions, without a factual basis.

When claiming trial counsel inadequately investigated his or her case, the petitioner "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). A defendant must demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing the outcome of the trial. From our review of the record, defendant has failed to meet that burden. Defendant failed to demonstrate that there was discoverable evidence that would have had the likelihood of successfully rebutting the State's evidence. Accordingly, defendant failed to establish a prima facie case of ineffective assistance, and thus an evidentiary hearing was not warranted.

Defendant also argues that the plea discussions were confusing and complicated. However, even if true, the fact that the plea negotiations were confusing and complicated is not evidence that his counsel was ineffective. Moreover, in his plea colloquy, defendant stated his attorney thoroughly discussed the plea with him. Thus, the record shows that defendant fully understood the terms of the agreement.

The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination of whether a defendant has made a prima facie showing of the claim. Preciose, supra, 129 N.J. at 462. Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. Ibid. Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Measured by these standards, we are persuaded that defendant has failed to satisfy either the performance or prejudice prongs of the Strickland test. Defendant failed to show that if counsel had investigated the matter further, he would have refused to plead guilty and gone to trial on the charges. Furthermore, in his plea colloquy, defendant said that he was satisfied with his counsel's advice.

Affirmed.

1 The matter was originally scheduled for trial, however, the plea cut-off form incorrectly listed count two as a second-degree offense when it was charged in the indictment as a first-degree offense due to the weight of the drugs defendant possessed. Based on the plea form discrepancy, defense counsel was given the opportunity to determine whether defendant wished to enter a plea of guilty, as he faced an extended sentence of up to life in prison on the first-degree charge.