NOT FOR PUBLICATION WITHOUT THE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-0395-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHNEL D. DUNLAP,
Defendant-Appellant.
_____________________________
Argued October 16, 2018 – Decided December 28, 2018
Before Judges Yannotti and Rothstadt.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 10-07-
0983 and 10-07-0995.
Annette Verdesco argued the cause for appellant (The
Anthony Pope Law Firm, PC, attorneys; Annette
Verdesco, on the briefs).
Joie D. Piderit, Assistant Prosecutor, argued the cause
for respondent (Andrew C. Carey, Middlesex County
Prosecutor, attorney; Susan Lynn Berkow, Special
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant, Johnel Dunlap, appeals from the denial of his petition for post-
conviction relief ("PCR") without an evidentiary hearing. For the reasons that
follow, we affirm.
Defendant pled guilty on September 27, 2012, to first-degree leading a
narcotics trafficking network, N.J.S.A. 2C:35-3, and second-degree certain
persons not to possess weapons, N.J.S.A. 2C:39-7(b). Prior to pleading guilty,
defendant was represented by Richard Roberts, Esq. who filed unsuccessful
motions to suppress evidence and to dismiss the indictment. After the trial court
denied those motions, defendant became dissatisfied with Roberts and , more
than a month before a scheduled trial date, retained Kenyatta Stewart, Esq. to
represent him.
Although defendant retained Stewart, the trial court would not relieve
Roberts at that late date but allowed Stewart to appear as co-counsel. Also, at a
pre-trial conference held on September 21, 2012, the court made clear that
defendant's attorneys were free to file a motion to reopen the suppression
hearing if new evidence was obtained. Despite that opportunity, neither Roberts
nor Stewart filed any motions and instead, Stewart negotiated the plea agreement
with the State that led to defendant pleading guilty. On November 15, 2012, the
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court sentenced defendant in accordance with his plea agreement to an aggregate
thirty years in prison with a fifteen-year period of parole ineligibility.
Defendant appealed his conviction and sentence. We affirmed in an
unpublished opinion. State v. Dunlap, No. A-4298-12 (App. Div. Jan. 19, 2016).
The Supreme Court denied defendant's petition for certification. State v.
Dunlap, 227 N.J. 221 (2016).
The facts underlying defendant's convictions are set forth in our prior
opinion and need not be repeated here. See Dunlap, No. A-4298-12, slip op. at
5-8. In his appeal from his conviction, defendant argued that the trial court erred
in denying his motion to dismiss the indictment. In our opinion, we adhered to
the guiding principle that "[a] plea of guilty amounts to a waiver of all issues,
including constitutional claims, that were or could have been raised in prior
proceedings[,]" and refused to consider defendant’s challenge to the denial of
the motion to dismiss the indictment because he did not preserve the issue for
appeal. Id. at 9-10 (quoting State v. Marolda, 394 N.J. Super. 430, 435 (App.
Div. 2007)).
We also rejected defendant’s argument that "he suffered a 'constructive
denial of counsel' and ineffective assistance because counsel failed to file a
motion to suppress the evidence seized" from two motor vehicles that allegedly
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were searched before a warrant was obtained. Id. at 18. We concluded that the
contention was belied by the record of the suppression hearing. Id. at 19, 22. In
our discussion, we observed that "[a]lthough the trial judge denied [counsel's]
request [for more time to locate the witnesses], . . . [the trial court] advised
counsel he could renew the motion for a continuance and receive additional time
to locate the witnesses if he presented more specific testimony from his
investigator . . . ." Id. at 21.
We also rejected defendant's related ineffective assistance of counsel
("IAC") argument that "trial counsel failed to subpoena two witnesses . . . to
support a suppression motion" based on the search of the two vehicles. Id. at
19. After reviewing in detail the record of Roberts' attempts to contact the
witnesses, we concluded,
the record . . . shows that trial counsel attempted to
secure the testimony of the witnesses described by
defendant for the suppression hearing, that he requested
additional time to speak to the one witness located to
determine whether to subpoena him and recognized
that, in light of the witness's unwillingness, a strategic
decision was required as to whether to subpoena him.
[Id. at 22.]
Because we concluded it was a "strategic decision," we found defendant's claim
of IAC to be without merit. Id. at 22-24.
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Defendant filed a PCR petition on September 2, 2016, claiming IAC. In
his petition, defendant contended that Roberts failed to produce witnesses at the
suppression hearing; did not move to reopen the suppression hearing to
challenge the validity of the search warrants for the two vehicles; failed to
preserve a right to challenge the denial of defendant's motion to dismiss the
indictment; and did not challenge the sufficiency of the evidence relating to the
charge of first-degree leader of a narcotics trafficking network.
Defendant submitted a certification in support of his petition in which he
described what he understood to be the content of statements given to an
investigator by the two witnesses that Roberts did not call at the suppression
hearing. He also explained how he provided Roberts with his automobile toll
records that contradicted the State's witnesses and which Roberts did not use at
the hearing.
Defendant argued that by not calling the witnesses or obtaining
certifications from them and moving to reopen the suppression hearing, or using
the toll records, defendant was "deprived of a viable defense to the evidence
illegally obtained without a search warrant." Defendant explained that Roberts'
failure to do so led to his dissatisfaction with counsel and his hiring of Stewart.
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He also cited to Robert's being ineffective in pursuing the motion to dismiss the
indictment.
Stewart also submitted a certification in support of defendant's petition .
In his certification, Stewart advised that he became defendant's attorney on
August 12, 2012, and at the time of the plea hearing, he and Roberts represented
defendant together, although only Roberts appeared at the hearing. He described
defendant's complaints about Roberts as set forth in defendant's certification and
added an allegation that defendant did not raise concerning Roberts not visiting
defendant in jail to discuss the case. Contrary to the record of the September
21, 2012 pre-trial conference, Stewart stated that when he entered the case, the
trial court would not let him file any motions. Stewart contended that Roberts
admitted that he "messed up" in not producing the witnesses at the suppression
hearing and that Roberts did not "review the thousands of documents" Roberts
obtained from the prosecutor through discovery.
In opposition to defendant's petition, the State filed the certification of
Christine M. D'Elia, the assistant prosecutor responsible for defendant's
prosecution. In her certification, D'Elia stated that at the time of defendant's
plea, the State would not have agreed to a reservation of rights in defendant's
plea agreement as to any issue other than the denial of his suppression motion.
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She also stated that at the time of the scheduled trial, if defendant was convicted,
he was facing a sentence of up to life in prison with a twenty-five year period of
parole ineligibility on one of the charges and, in response to being "urged" by
Stewart, she agreed to the plea arrangement that led to defendant's guilty plea.
After considering the parties' submissions and oral arguments, Judge
Pedro J. Jimenez, Jr. denied defendant's petition by order dated August 22, 2017.
In his accompanying comprehensive written decision, the judge compared the
assertions defendant made in his earlier appeal and those argued in his PCR
petition. He concluded that defendant’s PCR claims about Roberts not calling
the two witnesses or seeking to reopen the suppression hearing based upon their
alleged anticipated testimony were precluded under Rule 3:22-5, which bars a
petition for PCR when the merits of the petition have been previously
adjudicated.
Judge Jimenez similarly found that defendant's claims relating to Roberts'
failure to adequately pursue the motion to dismiss the indictment was also
addressed in our earlier opinion and therefore procedurally barred on PCR. He
also observed that, in any event, there was no proof that the State would have
agreed to a conditional plea that preserved defendant's right to appeal the denial
of that motion in light of D'Elia's certification.
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Although Judge Jimenez concluded defendant's claims were procedurally
barred, he addressed the merits of defendant's allegations of IAC. The judge
concluded that defendant failed to establish a prima facie claim that Roberts
committed any "serious error[]" when he made "a strategical decision" to not
call the two "possibly unreliable witnesses" at the suppression hearing, which
Stewart never attempted to cure if defendant truly viewed it as an error.
Moreover, the judge concluded that even if errors were made, defendant also
failed to establish that he would not have pled guilty absent counsel's al leged
deficiencies.
In discussing the information filed in support of defendant's petition,
Judge Jimenez observed that the only new evidence of alleged IAC by Roberts
advanced by defendant since his appeal was Stewart's certification. 1 The judge
concluded from the certification that Stewart was aware of the facts argued by
defendant in support of his IAC claim in his earlier appeal and now again on
PCR. He observed that despite that knowledge, Stewart never took any action
1
We observe that on this appeal, defendant's appendix contains various
documents relative to disciplinary matters involving Roberts. It does not appear
from either defendant's or Stewart's certifications that the documents were filed
with the PCR court. However, even if they were, we find them to be without
any probative value as to defendant's contentions on PCR or in his present
appeal.
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to remedy Roberts' alleged deficiencies, such as filing a motion to reopen the
suppression hearing, but instead pursued negotiating a plea agreement for
defendant. Judge Jimenez inferred that Stewart shared Roberts' view that the
"two (2) witnesses were not credible enough to take the stand," and for that
reason, "never petitioned the court to reopen the motion."
Under those circumstances, the judge concluded that Stewart's decision to
not file any motions undermined defendant's argument that Roberts was
ineffective or that defendant would not have pled guilty if the motion was made.
Accordingly, the judge found that not only were defendant's PCR claims
procedurally barred, defendant also failed to "present a prima facie case" of IAC.
This appeal followed.
On appeal, defendant presents the following issue for our consideration:
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN DENYING APPELLANT'S MOTION FOR
POST CONVICTION RELIEF.
In support of his contention, defendant again argues that Roberts failed to
call the two witnesses; failed to move to reopen the suppression hearing; failed
to preserve defendant’s right to appeal the denial of his motion to dismiss the
indictment; and failed to challenge the sufficiency of the evidence supporting
the leader of narcotics trafficking charge.
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We are not persuaded by any of these arguments and affirm substantially
for the reasons expressed by Judge Jimenez in his thorough decision. The
underlying facts from the record were undisputed and the judge's legal
conclusion about defendant's petition being procedurally barred under Rule
3:22-5 was legally correct. 2 See State v. McQuaid, 147 N.J. 464, 483-84 (1997).
We also agree with Judge Jimenez that, even if defendant's claims were
not procedurally barred, he failed to satisfy either prong under Strickland v.
Washington, 466 U.S. 668, 687 (1984). The standard for determining whether
counsel's performance was ineffective for purposes of the Sixth Amendment was
formulated in Strickland and adopted by our Supreme Court in State v. Fritz, l05
N.J. 42, 49 (l987). In order to prevail on a claim of ineffective assistance of
counsel, defendant must establish both that: (l) counsel's performance was
deficient and he or she made errors that were so egregious that counsel was not
2
We view defendant's allegation that Roberts failed to utilize EZ Pass violation
records to show the duration of the search of the two vehicles lasted longer than
the State's investigation suggested to be subsumed by his contentions on direct
appeal and therefore also procedurally barred under the same rule. To the extent
the claim was not raised on direct appeal, it is procedurally barred under Rule
3:22-4 because "that the ground for relief[, which was] not previously asserted
could . . . have been raised in" his direct appeal, R. 3:22-4(a), and defendant
cannot demonstrate that a failure to use the records "played a role in the
determination of guilt." State v. Brewster, 429 N.J. Super. 387, 400-01 (App.
Div. 2013) (quoting State v. Nash, 212 N.J. 518, 546 (2013)).
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functioning effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) 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, 466 U.S. at 687, 694.
The Strickland two-prong analysis applies equally to convictions after a
trial or after a defendant pleads guilty. In the context of a PCR petition
challenging a guilty plea, the first Strickland prong is satisfied when a defendant
establishes that "there is a reasonable probability that, but for counsel's errors
[he or she] would not have pled guilty and would have insisted on going to trial."
State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. Nunez-Valdez, 200
N.J. 129, 139 (2009)). The second prong is met when a defendant establishes a
reasonable probability he or she would have insisted on going to trial. Ibid.
We agree that defendant failed to establish that Roberts' performance was
deficient and that he committed any egregious errors. Even if he did, we also
conclude that defendant did not make a prima facie showing that, but for
counsel's errors, he would not have pled guilty. The record clearly indicates
that, despite the State's evidence against defendant, Stewart was able to
negotiate a favorable plea for defendant. Specifically, under N.J.S.A. 2C:35-3,
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if convicted, defendant was facing a mandatory sentence of life imprisonment
with twenty-five years of parole ineligibility. Only through a plea agreement
could the mandatory sentence be waived. See N.J.S.A. 2C:35-12. Therefore,
defendant's ability to plead guilty and to be sentenced to thirty years with fifteen
years of parole ineligibility was in all respects a highly beneficial result for
defendant. Nothing in the record suggests that he would have preferred to go to
trial and face the mandatory life sentence or that he would have chosen to do so
but for Roberts' deficiencies.
Because we are satisfied that defendant failed to make a prima facie
showing of ineffectiveness of counsel within the Strickland-Fritz test, we also
find that Judge Jimenez correctly concluded that an evidentiary hearing was not
warranted. See State v. Jones, 219 N.J. 298, 311 (2014).
Affirmed.
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