NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4112-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEO P. JOHNSON,
Defendant-Appellant. _________________________
Submitted January 26, 2021 – Decided March 26, 2021
Before Judges Gilson and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 12-09-1831 and 12-12-2482.
Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).
Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (William Kyle Meighan, Senior Assistant Prosecutor, on the brief).
PER CURIAM Defendant appeals from a March 6, 2019 order denying his petition for
post-conviction relief (PCR). He contends that the PCR court should have
granted him an evidentiary hearing on his claim that his plea counsel was
ineffective in failing to inform him that his guilty plea to drug charges would
delay his eligibility to apply to end his community supervision for life (CSL),
which had been imposed on him in connection with a prior conviction. We reject
this argument and affirm.
I.
In 2000, defendant pled guilty to second-degree sexual assault in violation
of N.J.S.A. 2C:14-2(c)(4). He was sentenced to three years in prison and, upon
release, CSL as required by N.J.S.A. 2C:43-6.4. A person who is sentenced to
CSL "may petition" for release if that person can establish that he or she "has
not committed a crime for [fifteen] years since the last conviction or release
from incarceration, whichever is later, and that the person is not likely to pose a
threat to the safety of others if released from parole supervision." N.J.S.A.
2C:43-6.4(c).
In 2012, in two separate indictments, defendant was charged with
numerous drug-related offenses. In 2014, he pled guilty to two crimes, one from
each of the indictments. Specifically, defendant pled guilty to third-degree
A-4112-18 2 distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and
third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(3). Thereafter, defendant was sentenced to
concurrent terms of 364 days in jail and, because he had already served that
time, he was released. Defendant did not file a direct appeal.
In May 2018 defendant petitioned for PCR. He was assigned counsel and
the PCR court heard oral argument. Defendant argued that his plea counsel had
been ineffective in failing to advise him that by pleading guilty to the drug
crimes, his eligibility to apply for release from CSL would be delayed. The PCR
court rejected that contention, reasoning that defendant had not shown
ineffective assistance of counsel or prejudice. The PCR court also denied
defendant's request for an evidentiary hearing.
II.
On appeal, defendant argues:
POINT I – THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel,
A-4112-18 3 Evidentiary Hearings And Petitions For Post Conviction Relief.
B. Trial Counsel Rendered Ineffective Legal Representation By Virtue Of His Failure To Inform Defendant That His Guilty Plea Would Extend The Eligibility Period For Termination Of The Community Supervision For Life That Was Previously Imposed On An Unrelated Conviction.
C. Defendant Is Entitled To A Remand To The Trial Court To Afford Him An Evidentiary Hearing To Determine The Merits Of His Contention That He Was Denied The Effective Assistance Of Trial Counsel.
Where, as here, the PCR court has not conducted an evidentiary hearing,
legal and factual determinations are reviewed de novo. State v. Harris, 181 N.J.
391, 419 (2004). The decision to proceed without an evidentiary hearing is
reviewed for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401
(App. Div. 2013).
To establish a claim of ineffective assistance of counsel, a defendant must
satisfy the two-part Strickland test: (1) "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment[,]" and (2) "the deficient performance prejudiced the
defense." Strickland v. Washington, 466 U.S. 668, 687 (1984); accord State v.
Fritz, 105 N.J. 42, 57-58 (1987). On petitions brought by a defendant who has
A-4112-18 4 entered a guilty plea, a defendant satisfies the first Strickland prong if he or she
can show that counsel's representation fell short of the prevailing norms of the
legal community. Padilla v. Kentucky, 559 U.S. 356, 366-67 (2010). A
defendant proves the second component of Strickland by establishing "a
reasonable probability that" defendant "would not have pled guilty," but for
counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v.
Nuñez-Valdéz, 200 N.J. 129, 139 (2009)).
Defendant argues that his plea counsel was ineffective for failing to advise
him that pleading guilty to drug offenses would delay when he could apply for
release from CSL. We reject this argument because defendant cannot satisfy
either prong of the Strickland test.
Defendant has cited no case holding that a defendant pleading guilty to
new charges must be advised of the consequences of those convictions on his
CSL. Defendant is not claiming that he was misadvised; rather, he is claiming
that his counsel should have discussed the impact on his CSL.
A person subject to CSL is not automatically entitled to release from
supervision. Instead, the parolee must apply for and obtain a court order.
N.J.S.A. 2C:43-6.4(c). The court can approve a release from CSL only if the
parolee establishes two grounds: (1) fifteen years have passed since that person
A-4112-18 5 was last convicted or released from prison, whichever is later; and (2) the person
is not likely to pose a threat to the safety of others if released from supervision.
Ibid. While CSL is a penal consequence of certain sex offense convictions, State
v. Schubert, 212 N.J. 295, 308 (2012); State v. Jamgochian, 363 N.J. Super. 220,
224 (App. Div. 2003), it is not a penal consequence of defendant's drug
convictions. Instead, defendant's conviction for the drug crimes had a collateral
consequence of extending the time until he could apply to be released from CSL.
Given that was a collateral consequence, there was no requirement that
plea counsel advise defendant of that consequence. State v. Bellamy, 178 N.J.
127, 137 (2003) (recognizing defendants generally do not need to be informed
of collateral consequences of their plea); State v. Smullen, 437 N.J. Super. 102,
109 (App. Div. 2014) (where CSL is triggered by an offense and a "material
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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-4112-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEO P. JOHNSON,
Defendant-Appellant. _________________________
Submitted January 26, 2021 – Decided March 26, 2021
Before Judges Gilson and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 12-09-1831 and 12-12-2482.
Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).
Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (William Kyle Meighan, Senior Assistant Prosecutor, on the brief).
PER CURIAM Defendant appeals from a March 6, 2019 order denying his petition for
post-conviction relief (PCR). He contends that the PCR court should have
granted him an evidentiary hearing on his claim that his plea counsel was
ineffective in failing to inform him that his guilty plea to drug charges would
delay his eligibility to apply to end his community supervision for life (CSL),
which had been imposed on him in connection with a prior conviction. We reject
this argument and affirm.
I.
In 2000, defendant pled guilty to second-degree sexual assault in violation
of N.J.S.A. 2C:14-2(c)(4). He was sentenced to three years in prison and, upon
release, CSL as required by N.J.S.A. 2C:43-6.4. A person who is sentenced to
CSL "may petition" for release if that person can establish that he or she "has
not committed a crime for [fifteen] years since the last conviction or release
from incarceration, whichever is later, and that the person is not likely to pose a
threat to the safety of others if released from parole supervision." N.J.S.A.
2C:43-6.4(c).
In 2012, in two separate indictments, defendant was charged with
numerous drug-related offenses. In 2014, he pled guilty to two crimes, one from
each of the indictments. Specifically, defendant pled guilty to third-degree
A-4112-18 2 distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and
third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(3). Thereafter, defendant was sentenced to
concurrent terms of 364 days in jail and, because he had already served that
time, he was released. Defendant did not file a direct appeal.
In May 2018 defendant petitioned for PCR. He was assigned counsel and
the PCR court heard oral argument. Defendant argued that his plea counsel had
been ineffective in failing to advise him that by pleading guilty to the drug
crimes, his eligibility to apply for release from CSL would be delayed. The PCR
court rejected that contention, reasoning that defendant had not shown
ineffective assistance of counsel or prejudice. The PCR court also denied
defendant's request for an evidentiary hearing.
II.
On appeal, defendant argues:
POINT I – THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel,
A-4112-18 3 Evidentiary Hearings And Petitions For Post Conviction Relief.
B. Trial Counsel Rendered Ineffective Legal Representation By Virtue Of His Failure To Inform Defendant That His Guilty Plea Would Extend The Eligibility Period For Termination Of The Community Supervision For Life That Was Previously Imposed On An Unrelated Conviction.
C. Defendant Is Entitled To A Remand To The Trial Court To Afford Him An Evidentiary Hearing To Determine The Merits Of His Contention That He Was Denied The Effective Assistance Of Trial Counsel.
Where, as here, the PCR court has not conducted an evidentiary hearing,
legal and factual determinations are reviewed de novo. State v. Harris, 181 N.J.
391, 419 (2004). The decision to proceed without an evidentiary hearing is
reviewed for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401
(App. Div. 2013).
To establish a claim of ineffective assistance of counsel, a defendant must
satisfy the two-part Strickland test: (1) "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment[,]" and (2) "the deficient performance prejudiced the
defense." Strickland v. Washington, 466 U.S. 668, 687 (1984); accord State v.
Fritz, 105 N.J. 42, 57-58 (1987). On petitions brought by a defendant who has
A-4112-18 4 entered a guilty plea, a defendant satisfies the first Strickland prong if he or she
can show that counsel's representation fell short of the prevailing norms of the
legal community. Padilla v. Kentucky, 559 U.S. 356, 366-67 (2010). A
defendant proves the second component of Strickland by establishing "a
reasonable probability that" defendant "would not have pled guilty," but for
counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v.
Nuñez-Valdéz, 200 N.J. 129, 139 (2009)).
Defendant argues that his plea counsel was ineffective for failing to advise
him that pleading guilty to drug offenses would delay when he could apply for
release from CSL. We reject this argument because defendant cannot satisfy
either prong of the Strickland test.
Defendant has cited no case holding that a defendant pleading guilty to
new charges must be advised of the consequences of those convictions on his
CSL. Defendant is not claiming that he was misadvised; rather, he is claiming
that his counsel should have discussed the impact on his CSL.
A person subject to CSL is not automatically entitled to release from
supervision. Instead, the parolee must apply for and obtain a court order.
N.J.S.A. 2C:43-6.4(c). The court can approve a release from CSL only if the
parolee establishes two grounds: (1) fifteen years have passed since that person
A-4112-18 5 was last convicted or released from prison, whichever is later; and (2) the person
is not likely to pose a threat to the safety of others if released from supervision.
Ibid. While CSL is a penal consequence of certain sex offense convictions, State
v. Schubert, 212 N.J. 295, 308 (2012); State v. Jamgochian, 363 N.J. Super. 220,
224 (App. Div. 2003), it is not a penal consequence of defendant's drug
convictions. Instead, defendant's conviction for the drug crimes had a collateral
consequence of extending the time until he could apply to be released from CSL.
Given that was a collateral consequence, there was no requirement that
plea counsel advise defendant of that consequence. State v. Bellamy, 178 N.J.
127, 137 (2003) (recognizing defendants generally do not need to be informed
of collateral consequences of their plea); State v. Smullen, 437 N.J. Super. 102,
109 (App. Div. 2014) (where CSL is triggered by an offense and a "material
aspect of a plea agreement," defendant must be informed about its
ramifications); see also State v. Williams, 342 N.J. Super. 83, 91-92 (App. Div.
2001) (reversing the grant of a request to withdraw a guilty plea where defendant
was not misinformed of the details of CSL).
Moreover, the consequences of a new conviction were clearly spelled out
in the statute defendant relies on to argue that he expected to be released from
CSL. N.J.S.A. 2C:43-6.4(c). In his petition, defendant contends that he knew
A-4112-18 6 he had to wait fifteen years before seeking to be released from CSL. The statute
that gave that right, however, also clearly explained that the fifteen years ran
from defendant's most recent conviction or release from prison, whichever was
later. Ibid. No one misinformed defendant concerning the meaning of that
statute. When defendant pled guilty to the drug offenses, he acknowledged that
he was on CSL, that CSL would continue, and that he nevertheless wanted to
plead guilty.
Defendant has also made no showing that there was a reasonable
probability that he would not have pled guilty even if he was told about the
impact on his CSL. Defendant was facing eleven charges in two separate
indictments, including three second-degree charges. Had he proceeded to trial
and been convicted, he could have faced over ten years in prison. See N.J.S.A.
2C:43-6(a)(2). Under the plea bargain, defendant was sentenced to 364 days in
jail, which after 404 days of jail credit was essentially time served.
Finally, we reject defendant's contention that he was entitled to an
evidentiary hearing. A petitioner is not automatically entitled to an evidentiary
hearing. State v. Porter, 216 N.J. 343, 355 (2013). A PCR court should only
grant an evidentiary hearing "if a defendant has presented a prima facie claim in
support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992).
A-4112-18 7 Here, defendant failed to make that showing and he therefore was not entitled
to an evidentiary hearing.
Affirmed.
A-4112-18 8