STATE OF NEW JERSEY VS. JOHN A. JOHNS (05-08-1618, ATLANTIC COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0704-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN A. JOHNS
Defendant-Appellant.
_________________________
Submitted December 11, 2019 – Decided December 30, 2019
Before Judges Mayer and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 05-08-1618.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John Joseph Lafferty, IV, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed pro se supplemental briefs.
PER CURIAM
Defendant John Johns appeals from the July 24, 2018 order denying his
petition for post-conviction relief (PCR). We affirm.
We incorporate by reference the facts and procedural history outlined in
our previous unpublished opinions in this matter, State v. Johns, A-2423-08 (App.
Div. May 2, 2011) and State v. Johns, A-1200-11 (App. Div. Mar. 28, 2014). We
recite only certain facts from these opinions to lend context to the present appeal.
On August 2, 2005, an Atlantic County Grand Jury returned Indictment No.
05-08-1618 charging defendant and Basim K. Reid with numerous crimes arising
from armed robberies which occurred at two different motels in Egg Harbor on April
24 and 25, 2005. The indictment charged defendant and Reid with two counts of
second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (counts one and
eight); four counts of first-degree robbery - two by use of force while armed,
N.J.S.A. 2C:15-1(a)(1) (counts two and nine) - and two by causing fear of immediate
bodily injury while armed, N.J.S.A. 2C:15-1 (counts three and ten); two counts of
third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts four and
eleven); two counts of second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a) (counts five and twelve); one count of third-degree
aggravated assault by attempting to or causing bodily injury with a deadly weapon,
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N.J.S.A. 2C:12-1(b)(2) (count six); and two counts of fourth-degree aggravated
assault for pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (counts seven and thirteen).
Defendant was tried before a jury in May 2008 and found guilty on all charges
except the conspiracy charge attributable to the April 24, 2005 robbery (count one).
On July 18, 2008, the trial judge sentenced defendant to consecutive sixteen-year
terms on the two robberies, for a total of thirty-two years, subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. Additionally, the judge sentenced
defendant to consecutive five-year prison terms for aggravated assault, and two
counts of possession of a handgun without a permit. On the remaining offenses ,
the trial judge either imposed concurrent terms or merged the convictions. The
aggregate sentence was forty-seven years with a thirty-year parole ineligibility
period. On June 25, 2009, defendant received an additional six-year sentence,
subject to NERA, for a first-degree robbery conviction under Indictment 05-10-
2297; that sentence was to run consecutive to the sentences in the present case.1
The first of the two robberies referenced in Indictment No. 05-08-1618
happened around 2:00 a.m. on April 24, 2005 at an Egg Harbor motel. The front
desk clerk, R.B., was in the back office at the time defendant and Reid entered the
1
There is no indication in the record that defendant appealed from his
conviction and sentence under Indictment 05-10-2297, nor does he raise issues
pertaining to this separate indictment on the instant PCR appeal.
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lobby. When R.B. saw defendant on the motel's security camera monitor, he came
to the front and saw defendant standing behind the counter with a gun. Defendant
ordered R.B. to his knees and began rifling through the cabinets and cash register.
After finding little money in the cash register, defendant became aggravated and
demanded money from R.B. Defendant took money from R.B.'s wallet and hit him
on the side of his head with the gun he was wielding, causing R.B. to lose a tooth.
Defendant and Reid fled with approximately $2100.
Defendant committed the second robbery around 3:30 a.m. on April 25, 2005
at another Egg Harbor motel. He first entered the motel at approximately 2:30 a.m.
with a "large wad" of cash in his hands. He asked A.K., the front desk clerk, about
room rates. However, when A.K. told defendant he had to produce identification,
defendant declined to rent a room. Around an hour later, defendant returned to the
motel and pointed a gun at A.K. as he ran toward the front desk. A.K. fell on the
floor for his own protection. Defendant jumped over the desk and Reid joined him.
Defendant demanded to know the location of the money on the premises, and A.K.
gave him this information. Before defendant and Reid fled, they took about $380
from a cash drawer and safe.
At trial, R.B. identified defendant as one of the persons who robbed him.
Although A.K. was unable to identify defendant as one of the robbers in the second
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robbery, he identified defendant as the man who entered his motel at 2:30 a.m.
Moreover, the State introduced surveillance tapes from both robberies, as well as
defendant's tape-recorded confession to committing these robberies. The State also
presented the testimony of two fingerprint experts who concluded that latent
fingerprints found behind the counter of the motel where the first robbery occurred
were defendant's fingerprints.
Defendant took the stand at trial and denied he committed either robbery. He
also testified that his confession to the robberies was the product of police coercion.
Further, he presented the testimony of his sister and two brothers to confirm he was
with them in Atlantic City from 9:30 until around 11:30 on the nights of both Egg
Harbor robberies. However, defendant's siblings could not vouch for his
whereabouts around the time of the robberies.
Defendant appealed from his 2008 convictions and sentence. In May
2011, we affirmed his convictions, except for one conviction relating to
possession of a handgun, and remanded the matter for reconsideration of the
"consecutive sentences and the overall length of the defendant's sentence."
Defendant's first resentencing occurred in July 2011, before a judge who was
not the original sentencing judge. During that proceeding, defendant was given
a prison term of twenty years for the April 24, 2005 robbery and a nineteen-year
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prison term for the April 25, 2005 robbery, with both terms subject to NERA.
In March 2014, we again vacated defendant's sentence and remanded for the trial
court to reconsider whether counts three and ten should be the subject of
consecutive sentences and if so, what the appropriate length of sentence should
be, limited to a period of sixteen years on each count. At the resentencing
hearing in June 2014, the same judge who resentenced defendant in 2011
imposed consecutive terms of sixteen years for each robbery conviction, for an
aggregate sentence of thirty-two years, subject to NERA. We affirmed this
resentence by summary order on April 15, 2015.
Pursuant to the PCR judge's written opinion, defendant moved for PCR
relief in September 2016, more than eight years after entry of the original
judgment of conviction and more than five years after we affirmed defendant's
convictions on his first direct appeal. His pro se certification in support of his
PCR petition is dated September 2, 2017. When the PCR judge conducted oral
argument on defendant's PCR petition, neither the State nor defense counsel
addressed the untimely nature of defendant's petition under Rule 3:22-12(a)(1).
Following oral argument, the PCR judge denied defendant's PCR petition on
grounds unrelated to Rule 3:22-12(a)(1).
On appeal from the denial of PCR relief, defendant raises the following
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argument through counsel:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR FAILING TO CHALLENGE HIS ILLEGAL
ARREST WHICH RESULTED IN HIS
CONFESSION.
In his supplemental pro se brief, defendant raises the following additional
arguments:
Point I
This matter should be remanded for an [e]videntiary
[h]earing, for [PCR] [j]udge erred in it[]s decision
denying [d]efendant's petition. Defendant established
a prima facie case of ineffective assistance of trial
counsel, for failing to challenge the illegal arrest and
the fruits of the poisonous tree claim.
Point II
[PCR judge] erred in denying the claim of ineffective
assistance of counsel for [defendant's] claim regarding
the [p]lea [n]egotiations.
Point III
[PCR judge] erred in denying [defendant's PCR] for the
claim of ineffective assistance of trial counsel for not
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objecting to the testimony of the AFIS 2 expert.
Point IV
[PCR judge] erred in denying [defendant's] claim of
ineffective assistance of trial counsel for not asking the
trial court for a lesser included offense.
Point V
[PCR judge] erred in denying [defendant's] claim of
ineffective assistance of trial counsel for not objecting
and filing for a Wade3 hearing to challenge the in-
court[] identification.
Because defendant filed his PCR petition in an untimely manner, we are
persuaded he is not entitled to relief. Accordingly, we affirm the PCR judge's
denial of same and add only the following brief comments.
Defendant does not present any facts permitting a late filing of his PCR
petition under Rule 3:22-12(a)(1)(A). According to the PCR judge, his petition
was not filed until September 2016, well past the five-year deadline following
his 2008 judgment of conviction, and more than five years after we affirmed his
conviction in May 2011. Such a lengthy delay increases the already substantial
2
AFIS is the acronym for Automated Fingerprint Identification System, which
is a biometric identification methodology that uses digital imaging technology
to obtain, store, and analyze fingerprint data.
3
United States v. Wade, 388 U.S. 218 (1967).
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burden to show excusable neglect or that a fundamental injustice will result if
the time bar is enforced. See State v. Afanador, 151 N.J. 41, 52 (1997).
The prescribed five-year period "commences when the judgment of
conviction is entered and is generally neither stayed nor tolled by an appellate
or other proceeding." State v. Murray, 162 N.J. 240, 249 (2000). Indeed, it is
well established that "a petition for [PCR] must be filed within five years of
entry of the judgment memorializing the conviction even if further trial
proceedings relating to the sentence are conducted during the interim period."
State v. Dugan, 289 N.J. Super. 15, 20 (App. Div. 1996); see State v. Cann, 342
N.J. Super. 93, 102 (App. Div. 2001) (confirming that pursuant to Rule 3:22-
12(a)(1)'s time-bar, "the date of the judgment of conviction controls even if there
are subsequent sentencing proceedings.").
"[A] court should only relax the bar of Rule 3:22-12 under exceptional
circumstances." Afanador, 151 N.J. at 52. A court may review a PCR petition
filed more than five years after the date of the judgment of conviction in the
narrow circumstance where the petition "alleges facts showing that the delay
beyond said time was due to defendant's excusable neglect and that there is a
reasonable probability that if the defendant's factual assertions were found to be
true enforcement of the time bar would result in a fundamental injustice." R.
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3:22-12(a)(1)(A). To satisfy the rule's requirements, "[t]he petition itself must
allege the facts relied on to support the claim." State v. Mitchell, 126 N.J. 565,
577 (1992).
"Ignorance of the law and rules of court does not qualify as excusable
neglect," State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) (citing
Murray, 162 N.J. at 246), aff'd o.b., 365 N.J. Super. 82, 84 (App. Div. 2003),
and an otherwise untimely PCR petition "is time-barred if it does not claim
excusable neglect, or allege the facts relied on to support that claim," Cann, 342
N.J. Super. at 101-02 (citing Mitchell, 126 N.J. at 577).
Next, a fundamental injustice occurs "when the judicial system has denied
a 'defendant with fair proceedings leading to a just outcome' or when 'inadvertent
errors mistakenly impacted a determination of guilt or otherwise wrought a
miscarriage of justice.'" State v. Nash, 212 N.J. 518, 546 (2013) (quoting
Mitchell, 126 N.J. at 587). Thus, to satisfy the fundamental-injustice prong of
the Rule 3:22-12(a)(1)(A) standard, a defendant "must make 'some showing' that
an error or violation 'played a role in the determination of guilt.'" Id. at 547
(quoting State v. Laurick, 120 N.J. 1, 13 (1990)).
Defendant's submissions are bereft of any facts showing excusable neglect
for the late filing of his petition. Likewise, he advances no facts to indicate a
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fundamental injustice would occur if the time bar was enforced. In fact,
defendant does not address the late filing of his petition in any manner.
As we are satisfied defendant's PCR petition is time barred, we need not
address the ineffective assistance of counsel arguments he raises on appeal. We
note, however, that even if defendant's PCR petition had been timely filed, or
we were persuaded there was a basis to relax the bar of Rule 3:22-12, there is
ample support in the record for the PCR judge's denial of defendant's petition
for the separate but equally dispositive reasons set forth in her written opinion .
Those reasons include her finding that some of defendant's appellate arguments
are procedurally barred under Rule 3:22-4 and Rule 3:22-5, and that defendant
failed to present a prima facie case of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984).
Under Rule 3:22-4, a PCR claim is procedurally barred if it could have
been raised on direct appeal. By contrast, Rule 3:22-5 provides that "[a] prior
adjudication upon the merits of any ground for relief is conclusive."
As the PCR judge noted, defendant previously raised issues on appeal
pertaining to his plea negotiation process, the need for a Wade hearing, and his
concerns about AFIS expert testimony at trial. The PCR judge also found
defendant failed to raise a claim on direct appeal regarding the omission of a
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theft charge to the jury as a lesser included offense. The record supports the
PCR judge's enforcement of these procedural bars.
Lastly, defendant argues the PCR judge erred in addressing the merits of
his ineffective assistance of counsel claims. He emphasizes his trial attorney's
performance was particularly deficient as counsel failed to challenge defendant's
"illegal arrest" and failed to move to suppress his confession. We disagree.
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). Rather, trial courts should grant evidentiary hearings and make a
determination on the merits only if the defendant has presented a prima facie
claim of ineffective assistance, material issues of disputed facts lie outside the
record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State
v. Porter, 216 N.J. 343, 355 (2013). To establish a prima facie claim of
ineffective assistance of counsel, the defendant must satisfy the two-pronged
Strickland test as follows:
First, [a defendant] must demonstrate that counsel made
errors "so serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the Sixth
Amendment." An attorney's representation is deficient
when it "[falls] below an objective standard of
reasonableness."
A-0704-18T3
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Second, a defendant "must show that the deficient
performance prejudiced the defense." A defendant will
be prejudiced when counsel's errors are sufficiently
serious to deny [defendant] a "fair trial." The prejudice
standard is met if there is "a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different." A "reasonable
probability" simply means a "probability sufficient to
undermine confidence in the outcome" of the
proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014) (alteration in
original) (citations omitted) (quoting Strickland, 466
U.S. at 687-88, 694).]
"[I]n order to establish a prima facie claim, [the defendant] must do more
than make bald assertions that he was denied the effective assistance of counsel.
He must allege facts sufficient to demonstrate counsel's alleged substandard
performance." Cummings, 321 N.J. Super. at 170. The defendant must
establish, by a preponderance of the credible evidence, that he is entitled to the
required relief. Nash, 212 N.J. at 541.
To the extent defendant belatedly argues his trial counsel was ineffective,
we are not persuaded. For example, he asserts his trial attorney should have
challenged his arrest and subsequent confession because no complaint warrant
existed at the time of his arrest. However, probable cause sufficient to justify
an arrest without a warrant exists when police have certain information which
reasonably leads them to believe that a crime has been or is being committed by
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the person arrested. Beck v. Ohio, 379 U.S. 89, 91 (1964); State v. Doyle, 42
N.J. 334, 346 (1964); see also State v. Cook, 47 N.J. 402, 414 (1966) and State
v. Fariello, 71 N.J. 552, 568 (1976).
Defendant's own submissions indicate law enforcement from both
Atlantic City and Egg Harbor Township were working together to develop
possible suspect information for the series of armed robberies that occurred in
various establishments in the area. Police had surveillance coverage from
several robberies, and eventually were led to the home of defendant's aunt,
where defendant was present. Defendant provides no evidence to demonstrate
law enforcement unlawfully entered his aunt's residence or that his aunt did not
provide consent to allow police to enter her home and effectuate defendant's
arrest. Without a valid basis to challenge the legality of his arrest, defendant's
trial counsel was not ineffective for failing to pursue a meritless motion .
Additionally, even if defendant's confession had been suppressed, we are
convinced the PCR judge properly found he could not satisfy the Strickland
prejudice prong because of the overwhelming evidence against him. As the trial
judge noted in defendant's 2008 judgment of conviction, the State had
surveillance video placing defendant at the scene of at least one of the robberies,
and a video of defendant outside the second motel, with his cohort, Reid. The
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State also had fingerprint evidence and victim statements pointing to defendant's
guilt. Further, Reid pled guilty to both Egg Harbor robberies. According to the
State, Reid inculpated defendant in those robberies.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004). The de novo standard of review applies to mixed
questions of fact and law. Id. at 420. Where an evidentiary hearing has not been
held, it is within our authority "to conduct a de novo review of both the factual
findings and legal conclusions of the PCR court." Id. at 421. As defendant
failed to demonstrate his trial attorney's handling of his matter was deficient and
that he was prejudiced by his attorney's deficient performance, we are satisfied
the PCR judge properly found defendant did not satisfy the two-prong Strickland
test and he was not entitled to an evidentiary hearing.
Any arguments asserted by defendant that we have not addressed are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
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