STATE OF NEW JERSEY VS. DOUGLAS JOHNSON (08-11-2042, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

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