NOT FOR PUBLICATION WITHOUT THE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-2157-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DOUGLAS JOHNSON, a/k/a DOUGIE
and D-MURDER,
Defendant-Appellant.
Submitted April 27, 2017 - Decided May 23, 2017
Before Judges Lihotz and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
08-11-2042.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Frances Tapia Mateo,
Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Douglas Johnson appeals from a November 19, 2015
order denying his application for post-conviction relief (PCR).
We affirm.
These facts are taken from the record. On the evening of
January 27, 2007, defendant obtained bullets for a firearm he
possessed, loaded the weapon and traveled to Jersey City with the
intention of firing the weapon at the intended victim, but instead
mortally wounded the intended target's mother, who was standing
nearby. On October 15, 2008, a Hudson County Grand Jury indicted
defendant, charging conspiracy N.J.S.A. 2C:5-2, attempted murder
N.J.S.A. 2C:5-1, murder N.J.S.A. 2C:11-3a(1) and (2), unlawful
possession of a weapon N.J.S.A. 2C:39-5(b), possession of a weapon
for an unlawful purpose N.J.S.A. 2C:39-4(a) and a certain person
not to have a weapon N.J.S.A. 2C:39-7(b).
On March 23, 2009, defendant appeared with counsel, waived
his right to a trial and entered a negotiated plea agreement,
pleading guilty to aggravated manslaughter. The trial judge
imposed a twenty-four year sentence, subject to the 85% parole
ineligibility period required by the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and
sentence considered during the excessive sentencing oral argument
(ESOA) calendar on September 2, 2011. See Rule 2:9-11. We
2 A-2157-15T4
remanded to require amendment to the judgment of conviction to
reflect applicable gap time credits.
Defendant filed his petition for PCR, which was denied
following oral argument, without the benefit of an evidentiary
hearing. In this appeal, defendant now advances the following
arguments:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED AND THE MATTER REMANDED TO
THE PCR COURT IN ORDER FOR THE PCR COURT TO
MAKE SPECIFIC AND ADEQUATE FINDINGS OF FACT
AND CONCLUSIONS OF LAW BEFORE POST-CONVICTION
RELIEF CAN BE SUMMARILY DENIED ON A CLAIM OF
INEFFECTIVE ASSISTANCE OF COUNSEL WITHOUT
CONDUCTING AN EVIDENTIARY HEARING.
POINT II
WHEN THE DEFENDANT ALLEGES IN POST-CONVICTION
RELIEF THAT TRIAL COUNSEL IGNORED HIS REQUEST
TO INTERVIEW WITNESSES THEREBY "COMPELLING"
HIM TO PLEAD GUILTY AND THE STATE DOES NOT
FIND IT APPROPRIATE TO SUBMIT A CERTIFICATION
OR AFFIDAVIT FROM DEFENDANT CONTESTING THE
ALLEGATION, A PRIMA FACIE SHOWING OF
INEFFECTIVE ASSISTANCE OF COUNSEL WAS MADE.
POINT III
THE PCR COURT'S RULING DENYING POST-CONVICTION
RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AS GUARANTEED BY THE
SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.
"Post-conviction relief is New Jersey's analogue to the
federal writ of habeas corpus." State v. Goodwin, 173 N.J. 583,
3 A-2157-15T4
593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).
The process affords an adjudged criminal defendant a "last chance
to challenge the fairness and reliability of a criminal verdict."
State v. Nash, 212 N.J. 518,450 (2013); see also Rule 3:22-1.
"Post-conviction relief is neither a substitute for direct appeal,
Rule 3:22-3, nor an opportunity to relitigate cases already decided
on the merits, Rule 3:22-5." Preciose, supra, 129 N.J. 451, 459
(1992); see also State v. Echols, 199 N.J. 344 (2009).
To establish a claim of ineffective assistance of counsel,
defendant must satisfy the two-prong test set forth in Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
2d 674, 693 (1984), and adopted by our Supreme Court in State v.
Fritz, 105 N.J. 42, 58 (1987). The test requires showing both:
(1) that counsel's performance was deficient and he or she made
errors that were so egregious that counsel was not functioning
effectively as guaranteed by the Sixth Amendment; and (2) that the
defect in performance prejudiced defendant's rights to a fair
trial such that there exists a "reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, supra, 466 U.S. at 687,
694, 104 S. Ct. at 2068, 2064, 80 L. Ed. 2d at 693, 698; see also
Fritz, supra, 105 N.J. at 52.
4 A-2157-15T4
To sustain this burden, defendant must articulate specific
facts to "provide the court with an adequate basis on which to
rest its decision[.]" State v. Mitchell, 126 N.J. 565, 579 (1992).
The trial judge must view the facts alleged in the light most
favorable to defendant. State v. Cummings, 321 N.J. Super. 154,
170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant argues he was entitled to evidentiary review of his
allegations of ineffective assistance by trial counsel. However,
merely raising a claim for PCR does not entitle defendant to an
evidentiary hearing. Defendant "must do more than make bald
assertions that he was denied the effective assistance of counsel."
Ibid.; see also Rule 3:22-10(b). Trial judges should grant
evidentiary hearings only if defendant has presented a prima facie
claim of ineffective assistance of counsel. State v. Preciose,
129 N.J. 451, 462 (1992). To do so, defendant "must allege facts
sufficient to demonstrate counsel's alleged substandard
performance," Cummings, supra, 321 N.J. Super. at 170, and "must
demonstrate a reasonable likelihood that his or her claim will
ultimately succeed on the merits." State v. Marshall, 148 N.J.
89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.
2d 88 (1997). "If the 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
5 A-2157-15T4
allegations are too vague, conclusory, or speculative to warrant
an evidentiary hearing, then an evidentiary hearing need not be
granted." Ibid. (citations omitted); see also Rule 3:22-10(e).
"[W]here the [PCR] court does not hold an evidentiary hearing,
we may exercise de novo review over the factual inferences the
trial court has drawn from the documentary record." State v.
O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). Thus, if
warranted, we may "conduct a de novo review of both the factual
findings and legal conclusions of the trial court." State v.
Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125
S. Ct. 2973, 162 L. Ed. 2d 898 (2005) (emphasis omitted).
Defendant argues his trial counsel failed to perform a
reasonable investigation by not interviewing witnesses,
specifically, co-defendants Luiz Ortiz and Bernardo Montanez, as
well as other witnesses who "provided statements to law enforcement
officers." Defendant argues "the witnesses and their statements
were never investigated by Trial Counsel to determine their
veracity, or usefulness, but were used to influence the Defendant
into accepting a plea."
Our Supreme Court has stated "counsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary," and the failure to
do so may "render the lawyer's performance deficient" and support
6 A-2157-15T4
a claim of ineffective assistance of counsel. State v. Porter,
216 N.J. 343, 353 (2013) (alteration removed) (internal citations
omitted). However, to establish such a claim a defendant "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. Absent a statement by
the witness of the facts he or she would have presented if called
to testify, there is no basis to analyze how the trial outcome
would be affected. Ibid.
The trial judge rejected defendant's claim, as "nothing more
than a bald assertion" and correctly held defendant did not support
his petition with an affidavit or certification from his co-
defendants or other witnesses alleging the facts he believed would
be revealed had the witnesses testified at trial. Instead, the
trial judge found defendant's petition included only "vague
expressions of opinion, such as 'the statements were untrue.'"
Even now on appeal, defendant's application lacks a
description of what information his trial counsel would have
discovered by these witness interviews. To hurdle his prima facie
burden, defendant must point the court to what the interviews by
his trial counsel would reveal. The record before us lacks such
a connection. Defendant's claims do not meet the first prong of
7 A-2157-15T4
Strickland and the trial judge properly denied this claim without
an evidentiary hearing. See Strickland, supra, 466 U.S. at 687,
104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also Preciose, supra,
129 N.J. at 462; Marshall, supra, 148 N.J. at 158; Rule 3:22-
10(e).
Defendant contends trial counsel's failure to investigate
prejudiced him. He asserts "if counsel would have sufficiently
investigated his case, [he] would not have feared the outcome of
trial and would not have felt forced to plead guilty despite his
innocence." The trial judge rejected defendant's claim of
prejudice, finding he failed to articulate facts in support of the
prejudice he allegedly incurred. The trial judge concluded "there
was nothing in defendant's petition to suggest that he would have
wanted to go to trial had his trial counsel done something
differently."
The second prong of the Strickland test requires defendant
to demonstrate a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would have
been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct.
at 2068, 80 L. Ed. 2d at 698. A "reasonable probability" is a
"probability sufficient to undermine confidence in the outcome."
Ibid. More specifically, we have held the second prong of the
Strickland test requires defendant to prove the deficient
8 A-2157-15T4
performance affected the outcome of the plea process. State v.
Chung, 210 N.J. Super. 427, 435 (App. Div. 1986)(citing Hill v.
Lockhart, 474 U.S. at 52, 59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203,
209 (1985)). Indeed, the defendant must demonstrate "there is a
reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to trial."
Hill, supra, at 59, 106 S. Ct. at 370, 80 L. Ed. 2d at 210.
Here, the trial judge properly determined defendant failed
to articulate facts demonstrating the prejudice he allegedly
incurred. As correctly noted by the trial judge, there were no
facts in the petition suggesting defendant would have wanted a
trial had trial counsel done something differently. To the
contrary, the facts in defendant's petition indicate, as the trial
judge found, "more than anything, the defendant urged counsel to
negotiate with the Prosecutor for a more appropriate plea, not
complaining that he pled out." The trial judge properly concluded
defendant never asserted a desire to go to trial.
For these reasons, defendant has not satisfied Strickland's
two pronged test and the trial judge correctly denied his petition
for PCR without conducting an evidentiary hearing. See Strickland,
supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693;
see also Preciose, supra, 129 N.J. at 462; Marshall, supra, 148
N.J. at 158; Rule 3:22-10(e). No evidence of ineffective
9 A-2157-15T4
assistance of counsel or a violation of the legal right to
effective representation is presented on the record before us.
Lastly, we reject defendant's claims asserting the trial
judge's findings of fact and conclusions of law were "perfunctory
and inadequate" and failed to identify the evidentiary standard
of proof the judge was applying.
The trial judge reviewed defendant's claims on the record,
and adequately determined he failed to establish a prima facie
showing of ineffective assistance of counsel. The trial judge
specifically stated: "[t]here's no indication what an
investigation would have revealed or how it might have affected
the outcome of the case, and nothing suggested that those
statements were anything more than truthful." In reviewing
defendant's claim asserting the indictment was defective, the
trial judge concluded "[t]here's nothing in the papers submitted
that would in any way support that claim either." In denying
defendant's claim of prejudice, the trial judge properly concluded
defendant never expressed a desire to go to trial. Specifically,
the trial judge stated:
[T]here is nothing in the Petition to suggest
the Defendant would have wanted to go to trial
had Counsel done some other things or some of
the things he was requesting here. There's
neither a desire to go to trial asserted nor
an assertion administered.
10 A-2157-15T4
This supported the trial judge's conclusion that "defendant urged
counsel to negotiate with the Prosecutor for a more appropriate
plea." This also supported the trial judge's finding defendant's
petition amounted to nothing more than a "bald assertion" and
consisted only of "vague expressions of opinion." The trial
judge's findings of fact and conclusions of law were clearly
adequate.
Affirmed.
11 A-2157-15T4