                                NOT FOR PUBLICATION WITHOUT THE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-3019-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

HELEN L. JOHNSON,

     Defendant-Appellant.
___________________________

                    Submitted February 28, 2019 – Decided April 9, 2019

                    Before Judges Whipple and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 16-03-0866.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Andrew R. Burroughs, Designated Counsel,
                    on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Stephen A.
                    Pogany, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant Helen L. Johnson appeals from the denial of her petition for

post-conviction relief (PCR) without an evidentiary hearing. Having considered

the record in light of the applicable legal principles, we find no merit in

defendant's arguments. The PCR court properly concluded that she failed to

prove her attorney provided ineffective assistance relative to her P re-Trial

Intervention (PTI) rejection and right to appeal same and we affirm.

                                       I.

      Defendant was charged with: fourth-degree aggravated assault pointing,

N.J.S.A. 2C:12-1(b)(4); third-degree terroristic threats, N.J.S.A. 2C:12-3(b);

fourth-degree aggravated assault pointing, N.J.S.A. 2C:12-1(b)(4); third-degree

terroristic threats, N.J.S.A. 2C:12-3(b); second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5(b); and second-degree unlawful possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), after she drew her

handgun on two tow truck operators who were attempting to tow her daughter's

vehicle. While pointing her pink and black handgun at the two men, defendant

told them "[t]here's 104. After you two, it's gonna be 106[,]" referring to the

number of murders in Newark in 2015. She pulled the slide back of the handgun

as if she were loading a round into the chamber. When the two men ignored her

and continued to tow the vehicle, defendant relented and returned to her


                                                                        A-3019-17T1
                                       2
apartment building. After the men called the police, defendant explained her

actions and forfeited her handgun, for which she had a permit to own but not a

permit to carry. At the scene, defendant admitted that the handgun was operable,

and she was arrested.

       Defendant applied for entry into PTI that was rejected by the prosecutor.

In response, her plea counsel submitted a memorandum of compelling reasons

in support of defendant's PTI application, arguing that the prosecutor's decision

was arbitrary and capricious, but it was rejected a second time. Following a plea

agreement that waived mandatory Graves Act 1 sentencing requirements,

defendant was sentenced to non-custodial probation, a no contact order with the

tow truck operators, and 100 hours of community service in September 2016.

Consideration was given to her lack of a criminal record. No direct appeal was

ever filed by defendant.

       In March 2017, defendant, as a self-represented litigant, filed her PCR

petition from the final judgment of conviction and later supplemented her

petition to claim ineffective assistance from her plea counsel, arguing: (1)

counsel did not seek clarification of the denial of her PTI application; and (2)

counsel failed to advise her that she could appeal the PTI rejection after the final


1
    N.J.S.A. 2C:43-6(c).
                                                                            A-3019-17T1
                                         3
disposition of her case. She claimed that her plea counsel dissuaded her from

seeking other legal advice before entering the plea. As a public employee who

would likely face termination if she pled guilty, the court told defendant she

should "weigh the strengths and the weaknesses" of her case with counsel before

making a decision.      The matter was adjourned to provide defendant the

opportunity to do so.

      During the plea hearing on July 19, 2016, the PCR judge questioned

defendant as to whether she completed the plea form with her counsel and she

responded affirmatively, and stated that she went over "each and every question"

with him. She circled the answers on the plea form herself, including the one

that read: "Do you understand that by pleading you are not waiving your right

to appeal . . . or . . . the denial of acceptance into a [PTI]?" On appeal defendant

argued that plea counsel advised her that the plea was appealable but not the PTI

denial, and that counsel circled the question on the plea form regarding this

without explaining it to her.

      In his comprehensive nineteen-page opinion, the PCR judge, who was also

the sentencing court, found that defendant, who has a master's degree, "indicated

that there was nothing altering her mindset that would prevent her from

understanding exactly what was going on in court." She pled guilty "because


                                                                            A-3019-17T1
                                         4
she wanted to plea[d] guilty." The following colloquy that ensued at the plea

hearing was recounted by the judge:

            COURT:              Now are you satisfied with the
                                services of [trial counsel]?

            [DEFENDANT]: Yes I am, sir.

            COURT:              Have you had enough time to discuss
                                your case with him?

            [DEFENDANT]: Yes I have.

            COURT:              Has he answered        all   of   your
                                questions?

            [DEFENDANT]: Yes he has.

            COURT:              Do you need any more time with
                                him?

            [DEFENDANT]: No.

      The PCR court denied defendant's petition without an evidentiary hearing.

Reviewing her sworn colloquy with the court at the time of her plea, the judge

concluded that her testimony and her signed plea form "contradicts her assertion

that her lawyer did not advise her of her right to appeal her PTI rejection. [B]oth

reveal she was privy to her rights and was advised accordingly."

      In his decision, the PCR judge also reiterated what defendant was advised

at a status conference:


                                                                           A-3019-17T1
                                        5
            [T]he offer you're being afforded is the most generous
            the State could give, short of an outright dismissal
            which does not seem to be in the cards . . . it doesn't get
            better than this. [T]here's nothing better than getting
            non-custodial probation. That's . . . the lowest you
            could really get under the circumstances.

      The court and counsel explained the Graves Act supplemental form to

defendant and she acknowledged her understanding of the same. Question 4(d)

on the plea form, which reads: "Do you understand that by pleading you are not

waiving your right to appeal . . . or . . . the denial of acceptance into a [PTI]?"

was circled "yes" by defendant. This appeal followed.

      Defendant argues:

            POINT I

            PLEA COUNSEL WAS INEFFECTIVE WHEN HE
            FAILED TO FILE AN APPEAL WITH THE LAW
            DIVISION OF THE DENIAL OF HIS CLIENT'S
            APPLICATION FOR PRETRIAL INTERVENTION
            (PTI).

            POINT II

            DEFENDANT'S PCR PETITION WAS NOT
            PROCEDURALLY BARRED UNDER RULE 3:22-4.

            POINT III

            AS THERE WAS A GENUINE DISPUTE OF
            MATERIAL FACT, AN EVIDENTIARY HEARING
            WAS REQUIRED.


                                                                           A-3019-17T1
                                        6
                                          II.

      "Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v.

Preciose, 129 N.J. 451, 459 (1992)). The PCR process provides a defendant a

"last chance to challenge the 'fairness and reliability of a criminal verdict . . . .'"

State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. Feaster, 184 N.J. 235,

249 (2005)). "Post-conviction relief is neither a substitute for a direct appeal,

[Rule] 3:22-3, nor an opportunity to relitigate cases already decided on the

merits, [Rule] 3:22-5." Preciose, 129 N.J. at 459; see also State v. Echols, 199

N.J. 344, 357 (2009). We "conduct a de novo review" when the PCR court did

not hold an evidentiary hearing on the claim defendant now raises on appeal.

State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (quoting State v.

Harris, 181 N.J. 391, 421 (2004)).

      A petition for PCR may be granted upon the following grounds:

             (a) Substantial denial in the conviction proceedings of
             defendant's rights under the Constitution of the United
             States or the Constitution or laws of the State of New
             Jersey;

             (b) Lack of jurisdiction of the court to impose the
             judgment rendered upon defendant's conviction;

             (c) Imposition of sentence in excess of or otherwise not
             in accordance with the sentence authorized by law if

                                                                               A-3019-17T1
                                          7
            raised together with other grounds cognizable under
            paragraph (a), (b), or (d) of this rule. Otherwise a claim
            alleging the imposition of sentence in excess of or
            otherwise not in accordance with the sentence
            authorized by law shall be filed pursuant to [Rule] 3:21-
            10(b)(5).

            (d) Any ground heretofore available as a basis for
            collateral attack upon a conviction by habeas corpus or
            any other common-law or statutory remedy.

            (e) A claim of ineffective assistance of counsel based
            on trial counsel's failure to file a direct appeal of the
            judgment of conviction and sentence upon defendant's
            timely request.

            [R. 3:22-2.]

      Furthermore, "[a] truly 'illegal' sentence can be corrected 'at any time.'"

State v. Zuber, 442 N.J. Super. 611, 617 (App. Div. 2015), rev'd on other

grounds, 227 N.J. 422 (2017) (alteration in original) (quoting State v. Acevedo,

205 N.J. 40, 47 n.4 (2011)).

      Because defendant's PCR petition is predicated on her claim that trial

counsel was ineffective, she must satisfy the two-part test pronounced in

Strickland v. Washington, by demonstrating that "counsel's performance was

deficient," that is, "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

466 U.S. 668, 687 (1984); see also State v. Fritz, 105 N.J. 42, 52 (1987). The


                                                                         A-3019-17T1
                                        8
first prong requires a showing that "counsel's representation fell below an

objective standard of reasonableness." Strickland, 466 U.S. at 688. It is the

defendant's burden to prove by a preponderance of the evidence that counsel's

decisions about trial strategy were not within the broad spectrum of competent

legal representation. See Fritz, 105 N.J. at 52.

      Under the second prong, a defendant must demonstrate that counsel's

errors prejudiced the defense to the extent that the defendant was deprived of a

fair and reliable outcome. Strickland, 466 U.S. at 687. To prove this element,

a defendant must demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694.

      We address defendant's first brief point, and conclude she failed to satisfy

either prong of the Stickland/Fritz test. As the PCR judge correctly concluded,

defendant's claim that her attorney never received clarification as to why she

was rejected from PTI is belied by his comments made at the June 2016 status

conference:

              [T]he Essex County Prosecutor's Office, although they
              denied [defendant']s admission to the county's [PTI],
              [Prosecutor] Lopez, in consultation with [Prosecutor]
              Imhof . . . reviewed the facts, spoke to the victims,
              reviewed our mitigating circumstances, considered the
              lack of criminal history of my client, all the facts and

                                                                          A-3019-17T1
                                         9
            circumstances, and agreed to remove this case from the
            . . . ordinary mandatory minimum sentences associated
            with Graves Act offense[s] and offered [defendant]
            probation.

      As the PCR judge correctly concluded, the above factors were insufficient

to admit defendant to PTI, but

            they were enough for the State to agree to a Graves Act
            waiver and offer [defendant] probation, an offer that
            was far less than the mandatory minimum of [five]
            years in New Jersey State Prison with [forty-two]
            months parole ineligibility and even the typical Graves
            Act waiver sentence of [three] years in New Jersey
            Prison with [one] year parole ineligibility.

Defendant cannot establish any confusion or lack of "clarification" as to her PTI

rejection. She was explicitly told she had a right to appeal her PTI rejection.

The PCR judge aptly concluded that with respect to an appeal, defendant

            [n]ever availed herself of that right and should have
            appealed if she believed her application was wrongfully
            rejected. She indicated to [the plea court] she was privy
            to her rights and understood them, so it was her duty to
            act on them.

      We find no merit to defendant's ineffective assistance of counsel

argument.

                                      III.

      Next, defendant argues that the PCR judge improvidently determined that

Rule 3:22-4 procedurally barred her petition. We disagree.

                                                                         A-3019-17T1
                                      10
      Rule 3:22-4 bars any issues that "could have and should have been raised

on direct appeal" taken in any such proceedings. State v. Reevey, 417 N.J.

Super. 134, 148 (App. Div. 2010). There are three exceptions to this rule: "(1)

that the ground for relief not previously asserted could not reasonably have been

raised in any prior proceeding; or (2) that enforcement of the bar to preclude

claims . . . would result in fundamental injustice; or (3) that denial of relief

would be contrary to a new rule of constitutional law . . . ." R. 3:22-4.

      Citing to State v. Allah, 170 N.J. 269, 285 (2002), the PCR judge reasoned

that defendant's claims "were available at the time of her plea and should have

been raised on direct appeal if the evidence supporting the claim is in the trial

record." We agree that Rule 3:22-4 served as a procedural bar to defendant's

claims.

                                       IV.

      In her final argument, defendant claims that genuine disputed facts

warranted an evidentiary hearing. She contends that the disputed facts relate to

her PTI rejection and her plea counsel's failure to advise her of the option to

appeal before entering the plea agreement. We disagree.

      The decision to hold an evidentiary hearing is reserved for the trial judge's

discretion. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A


                                                                            A-3019-17T1
                                       11
trial judge should only grant evidentiary hearings and make a determination on

the merits of a claim if a prima facie case of ineffective assistance of counsel is

shown. Preciose, 129 N.J. at 462. In determining whether a prima facie claim

has been made, the facts should be viewed "in the light most favorable to [the]

defendant." Id. at 463. Additionally, "[a] petitioner must establish the right to

such relief by a preponderance of the credible evidence." Id. at 459 (citing State

v. Mitchell, 126 N.J. 565, 579 (1992)). "To sustain that burden, specific facts

must be alleged and articulated" to "provide the court with an adequate basis on

which to rest its decision." Mitchell, 126 N.J. at 579.

      Although an evidentiary hearing was denied, the PCR judge aptly afforded

oral argument to defendant. As noted by the PCR judge, "The transcripts of the

status conferences, plea acceptance and sentencing did not elucidate any issues

that could not have been determined through the submitted certifications and

briefs." See State v. Flores, 228 N.J. Super. 586, 589-90 (App. Div. 1988). We

agree with the PCR judge that an evidentiary hearing was unnecessary based

upon the thorough record and his familiarity with the history of this matter.

      Affirmed.




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                                       12
