NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1304-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DERRICK JOHNSON, a/k/a DERRICK A. JOHNSON, ALLEN JOHNSON, ALLAN JOHNSON, DEMETRIUS JOHNSON, ZAHIR JOHNSON, DERECK JOHNSON, DICK JOHNSON, ABDULLAH JOHNSON, MARK SUITTON, MARK SUTTON, and ALLAN ZAHARABDULLAH,
Defendant-Appellant. __________________________
Argued October 9, 2025 – Decided December 4, 2025
Before Judges Bishop-Thompson and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-08-1865. Kayla Rowe, Designated Counsel, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Kayla Rowe, on the briefs).
Linda A. Shashoua, Attorney, Special Litigation Unit, argued the cause for respondent (William E. Reynolds, Atlantic County Prosecutor, attorney; Courtney Cittadini, Section Chief, of counsel; Linda A. Shashoua, on the brief).
PER CURIAM
Defendant Derrick Johnson appeals from the December 1, 2023 Law
Division order dismissing his second petition for post-conviction relief (PCR)
without an evidentiary hearing. We affirm.
A jury convicted defendant of first-degree conspiracy to commit robbery,
N.J.S.A. 2C:5-2, :15-1; five counts of first-degree robbery, N.J.S.A. 2C:15-1;
two counts of second-degree burglary, N.J.S.A. 2C:18-2; five counts of third-
degree criminal restraint, N.J.S.A. 2C:13-2; five counts of fourth-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(4); three counts of second-degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); three
counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b);
and two counts of second-degree certain persons not to have weapons, N.J.S.A.
2C:39-7. He was sentenced to an aggregate seventy-year term subject to the No
Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed defendant's convictions
A-1304-23 2 but remanded to amend the judgment of conviction to merge the conspiracy
conviction into the robbery convictions. State v. Johnson, No. A-4627-08 (App.
Div. Jan. 7, 2013) (slip op. at 2). The New Jersey Supreme Court denied
defendant’s petition for certification. State v. Johnson, 214 N.J. 118 (2013).
On September 25, 2013, defendant filed his first PCR petition. In the brief
filed by his appointed counsel, defendant alleged ineffective assistance of
counsel asserting trial counsel failed to provide complete discovery, adequately
investigate witnesses, and advise him of his sentencing exposure. In a
supplemental brief, defendant reiterated the points raised in his counseled brief.
He also argued appellate counsel was ineffective for failing to object to or argue
inadmissibility of evidence under N.J.R.E. 404(b), among other claims. In an
April 19, 2018 order, accompanied by a comprehensive written opinion, the PCR
court denied defendant's petition without an evidentiary hearing. We affirmed
the denial of defendant's petition. State v. Johnson, No. A-0702-18 (App. Div.
Oct. 23, 2020) (slip op. at 18). The Supreme Court denied defendant's petition
for certification. State v. Johnson, 245 N.J. 61 (2021).
On September 8, 2021, defendant filed his second PCR petition, claiming
first PCR counsel destroyed or failed to submit critical legal papers and did not
raise numerous issues defendant wanted addressed, which prevented the first
A-1304-23 3 PCR court from considering multiple substantive claims. In a supplemental
brief, appointed PCR counsel argued the first PCR counsel was ineffective
because he failed to provide defendant with discovery from the case file and
failed to withdraw as counsel even though their attorney-client relationship was
"irretrievably broken." Counsel's brief also incorporated by reference all points
previously raised in defendant's prior submissions, which essentially reflected
issues raised on direct appeal or in the first PCR petition, as they related to trial
counsel's and PCR counsel's performance. Defendant also argued excusable
neglect for the late filing, seeking relaxation of the time bar and an evidentiary
hearing.
On December 1, 2023, the PCR court dismissed defendant's second
petition pursuant to Rule 3:22-12(a)(2), as it was filed more than two years after
the denial of the first PCR petition. After considering the procedural history of
defendant's direct appeal and first PCR petition, the court concluded "case law
ma[de] it abundantly clear that this was not a sufficient excuse."
The PCR court nevertheless addressed the merits of defendant's second
petition. It explained defendant offered no support that his first PCR counsel
was not truthful concerning the receipt and destruction of defendant's legal
papers. It further reasoned appellate counsel was not required to raise "forty
A-1304-23 4 plus" issues on appeal. The court concluded defendant failed to satisfy both
prongs under Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105
N.J. 42 (1987) (adopting the Strickland test in New Jersey). A memorializing
order accompanied by a written opinion was entered.
In his appeal, defendant raises the following arguments:
POINT I
THE PCR COURT ERRED WHEN IT DENIED PCR, BECAUSE THE TIME BAR SHOULD HAVE BEEN RELAXED.
POINT II
THE PCR COURT ERRED WHEN IT CONCLUDED THAT COUNSEL IS NOT OBLIGATED TO RAISE NON-FRIVOLOUS CLAIMS. THE ORIGINAL [SELF-REPRESENTED] CLAIMS SHOULD BE RESTORED AND CONSIDERED.
POINT III
FIRST PCR COUNSEL WAS INEFFECIVE WHEN HE FAILED TO PROVIDE [DEFENDANT] WITH DISCOVERY.
POINT IV
THIS COURT SHOULD HAVE GRANTED AN EVIDENTIARY HEARING TO ADDRESS THE PCR CLAIMS.
A-1304-23 5 We review de novo a decision to deny a petition for PCR without an
evidentiary hearing. State v. Harris, 181 N.J. 391, 419 (2004); see also State v.
Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (applying a de novo standard
of review to the denial of a second petition for PCR). We also review the PCR
court's decision to forgo a hearing for abuse of discretion. State v. Vanness, 474
N.J. Super. 609, 623 (App. Div. 2023) (citing State v. Brewster, 429 N.J. Super.
387, 401 (App. Div. 2013)).
"[PCR] is New Jersey's analogue to the federal writ of habeas corpus."
State v. Preciose, 129 N.J. 451, 459 (1992). A PCR "is neither a substitute for
direct appeal nor an opportunity to relitigate cases already decided on the
merits." Ibid. (citations omitted).
Rule 3:22-12(a)(2) governs the timeliness of a second or subsequent PCR
petition. Under the Rule, a second or subsequent PCR petition must be filed
within one year of the date on which a new constitutional right is recognized by
the courts, or "the date on which the factual predicate for the relief sought was
discovered," or "the date of the denial of the first . . . application for [PCR]."
See R. 3:22-12(a)(2)(B), (C). Accordingly, a subsequent PCR petition must be
Free access — add to your briefcase to read the full text and ask questions with AI
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-1304-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DERRICK JOHNSON, a/k/a DERRICK A. JOHNSON, ALLEN JOHNSON, ALLAN JOHNSON, DEMETRIUS JOHNSON, ZAHIR JOHNSON, DERECK JOHNSON, DICK JOHNSON, ABDULLAH JOHNSON, MARK SUITTON, MARK SUTTON, and ALLAN ZAHARABDULLAH,
Defendant-Appellant. __________________________
Argued October 9, 2025 – Decided December 4, 2025
Before Judges Bishop-Thompson and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-08-1865. Kayla Rowe, Designated Counsel, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Kayla Rowe, on the briefs).
Linda A. Shashoua, Attorney, Special Litigation Unit, argued the cause for respondent (William E. Reynolds, Atlantic County Prosecutor, attorney; Courtney Cittadini, Section Chief, of counsel; Linda A. Shashoua, on the brief).
PER CURIAM
Defendant Derrick Johnson appeals from the December 1, 2023 Law
Division order dismissing his second petition for post-conviction relief (PCR)
without an evidentiary hearing. We affirm.
A jury convicted defendant of first-degree conspiracy to commit robbery,
N.J.S.A. 2C:5-2, :15-1; five counts of first-degree robbery, N.J.S.A. 2C:15-1;
two counts of second-degree burglary, N.J.S.A. 2C:18-2; five counts of third-
degree criminal restraint, N.J.S.A. 2C:13-2; five counts of fourth-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(4); three counts of second-degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); three
counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b);
and two counts of second-degree certain persons not to have weapons, N.J.S.A.
2C:39-7. He was sentenced to an aggregate seventy-year term subject to the No
Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed defendant's convictions
A-1304-23 2 but remanded to amend the judgment of conviction to merge the conspiracy
conviction into the robbery convictions. State v. Johnson, No. A-4627-08 (App.
Div. Jan. 7, 2013) (slip op. at 2). The New Jersey Supreme Court denied
defendant’s petition for certification. State v. Johnson, 214 N.J. 118 (2013).
On September 25, 2013, defendant filed his first PCR petition. In the brief
filed by his appointed counsel, defendant alleged ineffective assistance of
counsel asserting trial counsel failed to provide complete discovery, adequately
investigate witnesses, and advise him of his sentencing exposure. In a
supplemental brief, defendant reiterated the points raised in his counseled brief.
He also argued appellate counsel was ineffective for failing to object to or argue
inadmissibility of evidence under N.J.R.E. 404(b), among other claims. In an
April 19, 2018 order, accompanied by a comprehensive written opinion, the PCR
court denied defendant's petition without an evidentiary hearing. We affirmed
the denial of defendant's petition. State v. Johnson, No. A-0702-18 (App. Div.
Oct. 23, 2020) (slip op. at 18). The Supreme Court denied defendant's petition
for certification. State v. Johnson, 245 N.J. 61 (2021).
On September 8, 2021, defendant filed his second PCR petition, claiming
first PCR counsel destroyed or failed to submit critical legal papers and did not
raise numerous issues defendant wanted addressed, which prevented the first
A-1304-23 3 PCR court from considering multiple substantive claims. In a supplemental
brief, appointed PCR counsel argued the first PCR counsel was ineffective
because he failed to provide defendant with discovery from the case file and
failed to withdraw as counsel even though their attorney-client relationship was
"irretrievably broken." Counsel's brief also incorporated by reference all points
previously raised in defendant's prior submissions, which essentially reflected
issues raised on direct appeal or in the first PCR petition, as they related to trial
counsel's and PCR counsel's performance. Defendant also argued excusable
neglect for the late filing, seeking relaxation of the time bar and an evidentiary
hearing.
On December 1, 2023, the PCR court dismissed defendant's second
petition pursuant to Rule 3:22-12(a)(2), as it was filed more than two years after
the denial of the first PCR petition. After considering the procedural history of
defendant's direct appeal and first PCR petition, the court concluded "case law
ma[de] it abundantly clear that this was not a sufficient excuse."
The PCR court nevertheless addressed the merits of defendant's second
petition. It explained defendant offered no support that his first PCR counsel
was not truthful concerning the receipt and destruction of defendant's legal
papers. It further reasoned appellate counsel was not required to raise "forty
A-1304-23 4 plus" issues on appeal. The court concluded defendant failed to satisfy both
prongs under Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105
N.J. 42 (1987) (adopting the Strickland test in New Jersey). A memorializing
order accompanied by a written opinion was entered.
In his appeal, defendant raises the following arguments:
POINT I
THE PCR COURT ERRED WHEN IT DENIED PCR, BECAUSE THE TIME BAR SHOULD HAVE BEEN RELAXED.
POINT II
THE PCR COURT ERRED WHEN IT CONCLUDED THAT COUNSEL IS NOT OBLIGATED TO RAISE NON-FRIVOLOUS CLAIMS. THE ORIGINAL [SELF-REPRESENTED] CLAIMS SHOULD BE RESTORED AND CONSIDERED.
POINT III
FIRST PCR COUNSEL WAS INEFFECIVE WHEN HE FAILED TO PROVIDE [DEFENDANT] WITH DISCOVERY.
POINT IV
THIS COURT SHOULD HAVE GRANTED AN EVIDENTIARY HEARING TO ADDRESS THE PCR CLAIMS.
A-1304-23 5 We review de novo a decision to deny a petition for PCR without an
evidentiary hearing. State v. Harris, 181 N.J. 391, 419 (2004); see also State v.
Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (applying a de novo standard
of review to the denial of a second petition for PCR). We also review the PCR
court's decision to forgo a hearing for abuse of discretion. State v. Vanness, 474
N.J. Super. 609, 623 (App. Div. 2023) (citing State v. Brewster, 429 N.J. Super.
387, 401 (App. Div. 2013)).
"[PCR] is New Jersey's analogue to the federal writ of habeas corpus."
State v. Preciose, 129 N.J. 451, 459 (1992). A PCR "is neither a substitute for
direct appeal nor an opportunity to relitigate cases already decided on the
merits." Ibid. (citations omitted).
Rule 3:22-12(a)(2) governs the timeliness of a second or subsequent PCR
petition. Under the Rule, a second or subsequent PCR petition must be filed
within one year of the date on which a new constitutional right is recognized by
the courts, or "the date on which the factual predicate for the relief sought was
discovered," or "the date of the denial of the first . . . application for [PCR]."
See R. 3:22-12(a)(2)(B), (C). Accordingly, a subsequent PCR petition must be
dismissed unless it complies with, and pleads, on its face, one of the three
criteria under the Rule. Jackson, 454 N.J. Super. at 292-94; R. 3:22-4(b).
A-1304-23 6 It is axiomatic the strict time bar imposed under Rule 3:22-12(a)(2) may
not be ignored or relaxed, nor extended, stayed, or tolled by appellate
proceedings. See Jackson, 454 N.J. Super. at 292-94; see also R. 1:3-4(c)
(providing that "[n]either the parties nor the court may . . . enlarge the time
specified by . . . [Rule] 3:22-12"). It is well-settled the late filing of a second
PCR petition cannot be excused in the same manner as the late filing of a first
petition. Jackson, 454 N.J. Super. at 292-94. Therefore, defendant was required
to file the second PCR petition no later than April 19, 2019, regardless of the
subsequent appeals.
Defendant's second PCR petition was filed two years and four months
after the PCR court's denial of his first petition, well beyond the time limits
prescribed by the Rule. Nor does defendant's second PCR petition satisfy the
requirements of Rule 3:22-12(a)(2)(B) or (C) because he does not rely on a
factual predicate that could not have been discovered earlier through reasonable
diligence and did not timely file by April 19, 2019, one year from the date of
the first denial. See State v. Murray, 162 N.J. 240, 246 (2000). Thus, dismissal
of defendant's second PCR petition was mandated under Rule 3:22-12(a)(2) and
the court did not abuse its discretion because an evidentiary hearing on his
application was not required.
A-1304-23 7 Having reviewed the evidence and record as a whole, we conclude
defendant's second petition fails on the merits. He has not presented sufficient
evidence supporting his bald assertion that there is a reasonable probability of
success on the merits or to establish a prima facie case of ineffective assistance
of counsel. Defendant is precluded from raising an issue in the second petition
for PCR that could have been raised on direct appeal. State v. McQuaid, 147
N.J. 464, 483 (1997).
To the extent we have not addressed defendant's remaining arguments, we
conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
A-1304-23 8