STATE OF NEW JERSEY VS. JOHNNY J. FERGUSON(05-07-1611, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-4949-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHNNY J. FERGUSON,

Defendant-Appellant.
______________________________

Submitted October 17, 2016 – Decided June 8, 2017

Before Judges Fisher and Ostrer.

On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 05-07-1611.

Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief).

PER CURIAM

In this appeal from the denial of his petition for post-

conviction relief (PCR), defendant Johnny Ferguson collaterally

challenges his conviction of third-degree burglary, N.J.S.A.
2C:18-2, third-degree attempt to endanger the welfare of a child,

N.J.S.A. 2C:5-1 and 2C:24-4(a), and fourth-degree resisting

arrest, N.J.S.A. 2C:29-2(a). In his plea hearing, defendant

admitted that he entered a home in Asbury Park without permission

at around midnight, entered a bedroom where three children were

asleep, pulled down his pants, and ejaculated onto the underwear

and bedding of a sleeping girl. One of the children later awoke

to find defendant asleep on the bed with his genitals exposed.

Pursuant to his plea agreement, the court sentenced defendant

to consecutive terms of four years on the burglary and attempted

endangering charges, with an aggregate parole ineligibility period

of four years. The court also sentenced him to a concurrent one-

year term of imprisonment on his resisting arrest charge. In

addition, the court imposed parole supervision for life (PSL).

The court entered the judgment of conviction on June 8, 2006.

Defendant filed his pro se petition in April 2014, well beyond

the five-year deadline to file a PCR petition.1 See R. 3:22-12.

He asserted that his conviction did not qualify for PSL. He noted

that since his release, he had been twice convicted for violating

PSL.

1
The petition was dated April 9, 2014. The precise date of filing
is not reflected in the record. He was assigned counsel in July
2014.

2 A-4949-14T2
 In an attorney-assisted brief, defendant argued that his

neglect in filing his petition within the five-year period was

reasonable because he was not aware of the consequences of his

plea until he had been paroled from prison. He also argued that

his allocution did not present a sufficient factual basis for his

endangering conviction, which had qualified him for PSL. Last,

he argued that his trial attorney was ineffective in failing to

recognize this insufficiency and convincing him to plead guilty.

The PCR court held that defendant's petition was time-barred

by Rule 3:22-12. The court specifically noted that defendant's

alleged ignorance of the PSL consequences of his plea was belied

by the detailed colloquy with the court during the plea hearing.

Furthermore, defendant's challenge to the factual basis of his

plea was barred by Rule 3:22-4 because he could have raised it on

direct appeal. The court also rejected a contention that

defendant's counsel was ineffective because he failed to provide

any evidence of his counsel's allegedly deficient performance.

On appeal, defendant argues the following points:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED BECAUSE DEFENDANT
ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE
THAT HIS SIXTH AMENDMENT RIGHT TO BE PROTECTED
BY TRIAL COUNSEL FROM ENTERING A GUILTY PLEA
TO A CRIME HE DID NOT COMMIT, AND HIS SIXTH
AMENDMENT RIGHT TO BE PROTECTED BY TRIAL

3 A-4949-14T2
 COUNSEL FROM BEING IMPROPERLY SENTENCED TO
PAROLE SUPERVISION FOR LIFE, WERE VIOLATED.

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED BECAUSE THE PCR COURT
MISAPPLIED THE PROCEDURAL BARS OF R. 3:22-4
AND R. 3:22-12.

Defendant's appeal lacks sufficient merit to warrant

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

ourselves to the following brief comments.

Defendant failed to establish both excusable neglect and a

fundamental injustice to justify consideration of his petition

beyond the five-year time limit that Rule 3:22-12 imposes. Not

only is defendant's argued ignorance of the PSL consequences of

his plea belied by the plea colloquy, it is also unsupported by

any competent evidence in the record. Defendant relies only on

his counsel's certification, upon information and belief, that

defendant was unaware of the consequences of his plea until his

parole. See R. 1:6-6. Furthermore, defendant's alleged belated

discovery that he had allegedly received inadequate advice as to

the PSL consequences of his plea does not constitute excusable

neglect. See State v. Brewster, 429 N.J. Super. 387, 400 (App.

Div. 2013).

In any event, we discern no inadequacy in the factual basis

of defendant's endangering conviction that would warrant a finding

4 A-4949-14T2
that a fundamental injustice occurred, see State v. Nash, 212 N.J.

518, 547 (2013) (stating that a "fundamental-injustice claim"

involves "some showing that an error or violation played a role

in the determination of guilt" (internal quotation marks and

citations omitted)), or a finding that defendant's trial counsel

was ineffective based on "errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v.

Fritz, 105 N.J. 42, 58 (1987).

Defendant knowingly engaged in sexual conduct with a child

by ejaculating on her while she slept. Such conduct "had the

capacity to impair or debauch the morals of the child." State v.

Bryant, 419 N.J. Super. 15, 18 (App. Div. 2011); see also N.J.S.A.

2C:24-4(a) (defining endangering the welfare of a child to include

"engag[ing] in sexual conduct which would impair or debauch the

morals of the child"). Contrary to what defendant seems to

suggest, it is of no consequence that the victim was asleep when

he ejaculated. Defendant expressly admitted his conduct was the

sort that would impair or debauch a child's morals. Particularly

inasmuch as defendant pleaded guilty to attempt, it is of no moment

that the child did not awake to see defendant ejaculate. Cf.

State v. Breitweiser, 373 N.J. Super. 271, 280-81, 283-85 (App.

5 A-4949-14T2
Div. 2004) (affirming sexual assault conviction where the

defendant stood closely behind an eight-year-old girl in a

supermarket and masturbated under his clothes, but the child did

not actually see the defendant's conduct), certif. denied, 182

N.J. 628 (2005).

Affirmed.

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