STATE OF NEW JERSEY v. WENDELL JOHNSON,

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1085-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WENDELL JOHNSON, a/k/a
LAMAR HILL,

          Defendant-Appellant.


                   Submitted November 6, 2019 – Decided December 2, 2019

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Mercer County, Accusation No. 99-03-0106.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Angelo J. Onofri, Mercer County Prosecutor, attorney
                   for respondent (Laura C. Sunyak, Assistant Prosecutor,
                   of counsel and on the brief).

                   Appellant filed a pro se supplemental brief.
PER CURIAM

       Defendant Wendell Johnson appeals the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing. We affirm.

       Defendant pled guilty to third-degree endangering the welfare of a child,

 N.J.S.A. 2C:24-4(a). On April 30, 1999, defendant was sentenced to a five-year

probationary term. Two years later, defendant was tried and convicted of

robbery and weapons offenses, resulting in a violation of probation (VOP). On

October 5, 2001, the trial court resentenced defendant to a four-year term of

imprisonment on the VOP, 1 consecutive to an aggregate eighteen-year term of

imprisonment, subject to the No Early Release Act,  N.J.S.A. 2C:43-7.2,

imposed on the armed robbery offenses.

       Defendant timely filed a PCR petition for the armed robbery offenses on

January 17, 2006. That petition and a second petition, filed on July 27, 2011

were denied by the trial court.

       On May 30, 2013, defendant filed the present PCR petition, claiming his

plea counsel was ineffective. Appointed counsel then filed a supplemental

brief. The following year, defendant's newly-retained private counsel filed a




1
    An amended judgement of conviction was not included on appeal.
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second supplemental brief claiming, among other things, defendant was

intoxicated during his plea allocution. In April 2018, Judge Ronald Susswein

held oral argument on defendant's PCR claims. Another appointed attorney

represented defendant at the hearing. Defendant, who had been released from

custody, was noticed of the hearing, but failed to appear. Following oral

argument, Judge Susswein issued a written decision, finding defendant's

application both time-barred and without merit.

      On appeal, defendant raises the following points 2 for our consideration:

            POINT ONE

            THE PCR COURT ERRED IN DENYING
            DEFENDANT AN EVIDENTIARY HEARING
            BECAUSE TESTIMONY IS NEEDED REGARDING
            WHY THE TRIAL COURT AND PLEA COUNSEL
            ALLOWED DEFENDANT TO TESTIFY WHILE
            UNDER THE INFLUENCE OF VARIOUS ILLEGAL
            SUBSTANCES.

            POINT TWO

            DEFENDANT'S [PCR] COUNSEL RENDERED
            INEFFECTIVE ASSISTANCE OF COUNSEL IN
            FAILING TO REQUEST AN ADJOURNMENT OF
            ORAL ARGUMENTS BECAUSE DEFENDANT

2
   Defendant also filed a one-page pro se supplemental brief. It is difficult to
discern the arguments he raises, although they appear to involve legal challenges
to the assistant prosecutor's authorization to sign the plea forms. The issues are
not appropriate for post-conviction relief, Rules 3:22-3 and -4, and otherwise
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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                                        3
            WAS NOT PRESENT AT THE HEARING AND A
            REASON WAS NOT PROVIDED.
            (Not raised below)

      We find insufficient merit in these arguments to warrant extended

discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for

the reasons contained in the thorough and comprehensive written decision of

Judge Susswein. We add only the following brief comments.

      We agree with Judge Susswein that defendant's PCR petition is time-

barred. Rule 3:22-12 requires a PCR petition to be filed within five years of the

judgment of conviction unless excusable neglect can be shown. Defendant's

petition was filed on May 30, 2013, more than fourteen years after the original

judgment of conviction. Such a lengthy delay increases the already substantial

burden to show excusable neglect and that a fundamental injustice will result.

See State v. Afanador,  151 N.J. 41, 52 (1997) (recognizing "the burden to justify

filing a petition after the five-year period will increase with the extent of the

delay").

      Defendant blames his delay on his plea counsel's ineffectiveness. As the

PCR judge recognized, however, "[t]hat contention is belied by the fact that

[defendant] has filed two [PCR] petitions [on the armed robbery convictions]




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within the required time periods, indicating to [the] [c]ourt that he understood

the procedures and time restrictions that apply to PCR petitions."

      Even though Judge Susswein correctly found defendant's petition

procedurally barred, he considered the merits of each of defendant's arguments

in the petition.   His conclusion that defendant failed to meet either the

performance or prejudice prong of the Strickland test,3 and failed to satisfy the

Slater factors4 to withdraw his guilty plea, is adequately supported in the record.

      For the first time on appeal, defendant contends PCR counsel was

ineffective for arguing his petition in his absence. He argues, in the absence of

a previously-filed sworn statement "alleg[ing] facts sufficient to demonstrate

counsel's alleged substandard performance[,]" see, e.g., State v. Cummings,  321 N.J. Super. 154, 170 (App. Div. 1999), that he could have furthered his

excusable neglect argument if he had been present at the hearing.


3
   Strickland v. Washington,  466 U.S. 668, 687 (1984) (holding that to obtain
PCR based on ineffective assistance grounds, a defendant is obliged to show not
only the particular manner in which counsel's performance was deficient, but
also that the deficiency prejudiced his right to a fair trial).
4
   State v. Slater,  198 N.J. 145, 157-58 (2009) (requiring the court to balance
four factors when deciding whether to vacate a guilty plea, i.e.: "(1) whether the
defendant has asserted a colorable claim of innocence; (2) the nature and
strength of defendant's reasons for withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would result in unfair prejudice to the State
or unfair advantage to the accused").
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      As we have recognized, however, "issues not raised below, even

constitutional issues, will not ordinarily be considered on appeal unless they are

jurisdictional in nature or substantially implicate public interest."     State v.

Walker,  385 N.J. Super. 388, 410 (App. Div. 2006). Here, because neither

interest is implicated and the record is insufficient to permit the adjudication of

this belated challenge, we decline to consider this argument.        See State v.

Robinson,  200 N.J. 1, 21 (2009); see also R. 3:22-4.

      Affirmed.




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