NOT FOR PUBLICATION WITHOUT THE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-3019-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HELEN L. JOHNSON,
Defendant-Appellant.
___________________________
Submitted February 28, 2019 – Decided April 9, 2019
Before Judges Whipple and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-03-0866.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Stephen A.
Pogany, Special Deputy Attorney General/Acting
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Helen L. Johnson appeals from the denial of her petition for
post-conviction relief (PCR) without an evidentiary hearing. Having considered
the record in light of the applicable legal principles, we find no merit in
defendant's arguments. The PCR court properly concluded that she failed to
prove her attorney provided ineffective assistance relative to her P re-Trial
Intervention (PTI) rejection and right to appeal same and we affirm.
I.
Defendant was charged with: fourth-degree aggravated assault pointing,
N.J.S.A. 2C:12-1(b)(4); third-degree terroristic threats, N.J.S.A. 2C:12-3(b);
fourth-degree aggravated assault pointing, N.J.S.A. 2C:12-1(b)(4); third-degree
terroristic threats, N.J.S.A. 2C:12-3(b); second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b); and second-degree unlawful possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), after she drew her
handgun on two tow truck operators who were attempting to tow her daughter's
vehicle. While pointing her pink and black handgun at the two men, defendant
told them "[t]here's 104. After you two, it's gonna be 106[,]" referring to the
number of murders in Newark in 2015. She pulled the slide back of the handgun
as if she were loading a round into the chamber. When the two men ignored her
and continued to tow the vehicle, defendant relented and returned to her
A-3019-17T1
2
apartment building. After the men called the police, defendant explained her
actions and forfeited her handgun, for which she had a permit to own but not a
permit to carry. At the scene, defendant admitted that the handgun was operable,
and she was arrested.
Defendant applied for entry into PTI that was rejected by the prosecutor.
In response, her plea counsel submitted a memorandum of compelling reasons
in support of defendant's PTI application, arguing that the prosecutor's decision
was arbitrary and capricious, but it was rejected a second time. Following a plea
agreement that waived mandatory Graves Act 1 sentencing requirements,
defendant was sentenced to non-custodial probation, a no contact order with the
tow truck operators, and 100 hours of community service in September 2016.
Consideration was given to her lack of a criminal record. No direct appeal was
ever filed by defendant.
In March 2017, defendant, as a self-represented litigant, filed her PCR
petition from the final judgment of conviction and later supplemented her
petition to claim ineffective assistance from her plea counsel, arguing: (1)
counsel did not seek clarification of the denial of her PTI application; and (2)
counsel failed to advise her that she could appeal the PTI rejection after the final
1
N.J.S.A. 2C:43-6(c).
A-3019-17T1
3
disposition of her case. She claimed that her plea counsel dissuaded her from
seeking other legal advice before entering the plea. As a public employee who
would likely face termination if she pled guilty, the court told defendant she
should "weigh the strengths and the weaknesses" of her case with counsel before
making a decision. The matter was adjourned to provide defendant the
opportunity to do so.
During the plea hearing on July 19, 2016, the PCR judge questioned
defendant as to whether she completed the plea form with her counsel and she
responded affirmatively, and stated that she went over "each and every question"
with him. She circled the answers on the plea form herself, including the one
that read: "Do you understand that by pleading you are not waiving your right
to appeal . . . or . . . the denial of acceptance into a [PTI]?" On appeal defendant
argued that plea counsel advised her that the plea was appealable but not the PTI
denial, and that counsel circled the question on the plea form regarding this
without explaining it to her.
In his comprehensive nineteen-page opinion, the PCR judge, who was also
the sentencing court, found that defendant, who has a master's degree, "indicated
that there was nothing altering her mindset that would prevent her from
understanding exactly what was going on in court." She pled guilty "because
A-3019-17T1
4
she wanted to plea[d] guilty." The following colloquy that ensued at the plea
hearing was recounted by the judge:
COURT: Now are you satisfied with the
services of [trial counsel]?
[DEFENDANT]: Yes I am, sir.
COURT: Have you had enough time to discuss
your case with him?
[DEFENDANT]: Yes I have.
COURT: Has he answered all of your
questions?
[DEFENDANT]: Yes he has.
COURT: Do you need any more time with
him?
[DEFENDANT]: No.
The PCR court denied defendant's petition without an evidentiary hearing.
Reviewing her sworn colloquy with the court at the time of her plea, the judge
concluded that her testimony and her signed plea form "contradicts her assertion
that her lawyer did not advise her of her right to appeal her PTI rejection. [B]oth
reveal she was privy to her rights and was advised accordingly."
In his decision, the PCR judge also reiterated what defendant was advised
at a status conference:
A-3019-17T1
5
[T]he offer you're being afforded is the most generous
the State could give, short of an outright dismissal
which does not seem to be in the cards . . . it doesn't get
better than this. [T]here's nothing better than getting
non-custodial probation. That's . . . the lowest you
could really get under the circumstances.
The court and counsel explained the Graves Act supplemental form to
defendant and she acknowledged her understanding of the same. Question 4(d)
on the plea form, which reads: "Do you understand that by pleading you are not
waiving your right to appeal . . . or . . . the denial of acceptance into a [PTI]?"
was circled "yes" by defendant. This appeal followed.
Defendant argues:
POINT I
PLEA COUNSEL WAS INEFFECTIVE WHEN HE
FAILED TO FILE AN APPEAL WITH THE LAW
DIVISION OF THE DENIAL OF HIS CLIENT'S
APPLICATION FOR PRETRIAL INTERVENTION
(PTI).
POINT II
DEFENDANT'S PCR PETITION WAS NOT
PROCEDURALLY BARRED UNDER RULE 3:22-4.
POINT III
AS THERE WAS A GENUINE DISPUTE OF
MATERIAL FACT, AN EVIDENTIARY HEARING
WAS REQUIRED.
A-3019-17T1
6
II.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v.
Preciose, 129 N.J. 451, 459 (1992)). The PCR process provides a defendant a
"last chance to challenge the 'fairness and reliability of a criminal verdict . . . .'"
State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. Feaster, 184 N.J. 235,
249 (2005)). "Post-conviction relief is neither a substitute for a direct appeal,
[Rule] 3:22-3, nor an opportunity to relitigate cases already decided on the
merits, [Rule] 3:22-5." Preciose, 129 N.J. at 459; see also State v. Echols, 199
N.J. 344, 357 (2009). We "conduct a de novo review" when the PCR court did
not hold an evidentiary hearing on the claim defendant now raises on appeal.
State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (quoting State v.
Harris, 181 N.J. 391, 421 (2004)).
A petition for PCR may be granted upon the following grounds:
(a) Substantial denial in the conviction proceedings of
defendant's rights under the Constitution of the United
States or the Constitution or laws of the State of New
Jersey;
(b) Lack of jurisdiction of the court to impose the
judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not
in accordance with the sentence authorized by law if
A-3019-17T1
7
raised together with other grounds cognizable under
paragraph (a), (b), or (d) of this rule. Otherwise a claim
alleging the imposition of sentence in excess of or
otherwise not in accordance with the sentence
authorized by law shall be filed pursuant to [Rule] 3:21-
10(b)(5).
(d) Any ground heretofore available as a basis for
collateral attack upon a conviction by habeas corpus or
any other common-law or statutory remedy.
(e) A claim of ineffective assistance of counsel based
on trial counsel's failure to file a direct appeal of the
judgment of conviction and sentence upon defendant's
timely request.
[R. 3:22-2.]
Furthermore, "[a] truly 'illegal' sentence can be corrected 'at any time.'"
State v. Zuber, 442 N.J. Super. 611, 617 (App. Div. 2015), rev'd on other
grounds, 227 N.J. 422 (2017) (alteration in original) (quoting State v. Acevedo,
205 N.J. 40, 47 n.4 (2011)).
Because defendant's PCR petition is predicated on her claim that trial
counsel was ineffective, she must satisfy the two-part test pronounced in
Strickland v. Washington, by demonstrating that "counsel's performance was
deficient," that is, "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
466 U.S. 668, 687 (1984); see also State v. Fritz, 105 N.J. 42, 52 (1987). The
A-3019-17T1
8
first prong requires a showing that "counsel's representation fell below an
objective standard of reasonableness." Strickland, 466 U.S. at 688. It is the
defendant's burden to prove by a preponderance of the evidence that counsel's
decisions about trial strategy were not within the broad spectrum of competent
legal representation. See Fritz, 105 N.J. at 52.
Under the second prong, a defendant must demonstrate that counsel's
errors prejudiced the defense to the extent that the defendant was deprived of a
fair and reliable outcome. Strickland, 466 U.S. at 687. To prove this element,
a defendant must demonstrate "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Id. at 694.
We address defendant's first brief point, and conclude she failed to satisfy
either prong of the Stickland/Fritz test. As the PCR judge correctly concluded,
defendant's claim that her attorney never received clarification as to why she
was rejected from PTI is belied by his comments made at the June 2016 status
conference:
[T]he Essex County Prosecutor's Office, although they
denied [defendant']s admission to the county's [PTI],
[Prosecutor] Lopez, in consultation with [Prosecutor]
Imhof . . . reviewed the facts, spoke to the victims,
reviewed our mitigating circumstances, considered the
lack of criminal history of my client, all the facts and
A-3019-17T1
9
circumstances, and agreed to remove this case from the
. . . ordinary mandatory minimum sentences associated
with Graves Act offense[s] and offered [defendant]
probation.
As the PCR judge correctly concluded, the above factors were insufficient
to admit defendant to PTI, but
they were enough for the State to agree to a Graves Act
waiver and offer [defendant] probation, an offer that
was far less than the mandatory minimum of [five]
years in New Jersey State Prison with [forty-two]
months parole ineligibility and even the typical Graves
Act waiver sentence of [three] years in New Jersey
Prison with [one] year parole ineligibility.
Defendant cannot establish any confusion or lack of "clarification" as to her PTI
rejection. She was explicitly told she had a right to appeal her PTI rejection.
The PCR judge aptly concluded that with respect to an appeal, defendant
[n]ever availed herself of that right and should have
appealed if she believed her application was wrongfully
rejected. She indicated to [the plea court] she was privy
to her rights and understood them, so it was her duty to
act on them.
We find no merit to defendant's ineffective assistance of counsel
argument.
III.
Next, defendant argues that the PCR judge improvidently determined that
Rule 3:22-4 procedurally barred her petition. We disagree.
A-3019-17T1
10
Rule 3:22-4 bars any issues that "could have and should have been raised
on direct appeal" taken in any such proceedings. State v. Reevey, 417 N.J.
Super. 134, 148 (App. Div. 2010). There are three exceptions to this rule: "(1)
that the ground for relief not previously asserted could not reasonably have been
raised in any prior proceeding; or (2) that enforcement of the bar to preclude
claims . . . would result in fundamental injustice; or (3) that denial of relief
would be contrary to a new rule of constitutional law . . . ." R. 3:22-4.
Citing to State v. Allah, 170 N.J. 269, 285 (2002), the PCR judge reasoned
that defendant's claims "were available at the time of her plea and should have
been raised on direct appeal if the evidence supporting the claim is in the trial
record." We agree that Rule 3:22-4 served as a procedural bar to defendant's
claims.
IV.
In her final argument, defendant claims that genuine disputed facts
warranted an evidentiary hearing. She contends that the disputed facts relate to
her PTI rejection and her plea counsel's failure to advise her of the option to
appeal before entering the plea agreement. We disagree.
The decision to hold an evidentiary hearing is reserved for the trial judge's
discretion. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A
A-3019-17T1
11
trial judge should only grant evidentiary hearings and make a determination on
the merits of a claim if a prima facie case of ineffective assistance of counsel is
shown. Preciose, 129 N.J. at 462. In determining whether a prima facie claim
has been made, the facts should be viewed "in the light most favorable to [the]
defendant." Id. at 463. Additionally, "[a] petitioner must establish the right to
such relief by a preponderance of the credible evidence." Id. at 459 (citing State
v. Mitchell, 126 N.J. 565, 579 (1992)). "To sustain that burden, specific facts
must be alleged and articulated" to "provide the court with an adequate basis on
which to rest its decision." Mitchell, 126 N.J. at 579.
Although an evidentiary hearing was denied, the PCR judge aptly afforded
oral argument to defendant. As noted by the PCR judge, "The transcripts of the
status conferences, plea acceptance and sentencing did not elucidate any issues
that could not have been determined through the submitted certifications and
briefs." See State v. Flores, 228 N.J. Super. 586, 589-90 (App. Div. 1988). We
agree with the PCR judge that an evidentiary hearing was unnecessary based
upon the thorough record and his familiarity with the history of this matter.
Affirmed.
A-3019-17T1
12