                                NOT FOR PUBLICATION WITHOUT THE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-2295-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DWAYNE S. JOHNSON,

     Defendant-Appellant.
_________________________

                    Submitted January 8, 2020 – Decided May 27, 2020

                    Before Judges Fuentes and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 13-07-1643.

                    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 (Matthew E.
                    Hanley, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Dwayne S. Johnson appeals from the order of the Criminal Part

denying his petition seeking post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

      On July 12, 2013, an Essex County grand jury returned an indictment

against defendant charging him with murder, N.J.S.A. 2C:11-3a(1) and N.J.S.A.

2C:11-3a(2), first degree felony murder, N.J.S.A. 2C:11-3a(3), and first degree

robbery, N.J.S.A. 2C:15-1. Defendant was tried before a petit jury over eight

nonsequential days from October 29, 2014 to November 19, 2014.         The jury

found defendant guilty of murder and third degree theft from the person of the

victim, N.J.S.A. 2C:20-2b(2)(d), as a lesser included offense of first degree

robbery.

      On January 12, 2015, the trial judge sentenced defendant on the murder

conviction to a fifty-year term of imprisonment with an eighty-five percent

period of parole ineligibility and five years of parole supervision, as mandated

by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed

a consecutive four-year term for third degree theft from the person. This court




                                                                        A-2295-18T3
                                       2
affirmed defendant's conviction and sentence on direct appeal,1 State v. Dwayne

Johnson, No. A-2758-14 (App. Div. May 30, 2017), and the Supreme Court

denied his petition for certification, 231 N.J. 320 (2017).

      These are the facts that led the jury to find, beyond a reasonable doubt,

that defendant purposely or knowingly murdered Terrance Everett:

            At trial, D.B. testified that at approximately 1:20 p.m.
            on January 7, 2013, she and A.M. were sitting in A.M.'s
            car, which was parked near an apartment building on
            Avon Avenue in Newark. She saw a man, later
            identified as Everett, walking in the area. She also saw
            defendant, who she knew, exit the building, drop his
            jacket, and run up to Everett and strike him. The two
            men began fighting, Everett fell to the ground, and
            defendant began hitting and kicking him. At that point,
            A.M. began recording the fight on his cell phone. D.B.
            viewed the cell phone video during her testimony and
            confirmed that it showed what she had witnessed. She
            also viewed a security camera video and confirmed it
            showed Everett walking in the area before the fight.

            The seventy-three second cell phone video showed
            defendant repeatedly kicking and stomping Everett in
            the head as Everett lay face down and motionless on the
            ground. Defendant then paused briefly, rifled through
            Everett's pockets, resumed kicking and stomping him

1
  Defendant was represented by counsel on direct appeal. However, defendant
also filed a supplemental pro se brief in which he raised additional issues,
including ineffective assistance of trial counsel. We declined to review this
claim on direct appeal "because such claims involve allegations and evidence
that lie outside the trial record." Johnson, slip op. at 4 (quoting State v.
Castagna, 187 N.J. 293, 313 (2006)).


                                                                       A-2295-18T3
                                        3
            in the head, and then walked away and entered the
            apartment building he had earlier exited.

            [Johnson, No. A-2758-14, slip op. at 5-6 (App. Div.
            May 30, 2017) (footnote omitted).]

      Defendant filed this pro se PCR petition on January 8, 2018 alleging trial

counsel was ineffective because he did not: (1) present a mens rea defense; (2)

challenge the State's evidence before trial; and (3) object to the State's expert

witness. Judge Michael L. Ravin assigned counsel to represent defendant in the

prosecution of this PCR petition. On August 16, 2018, PCR counsel submitted

a supplemental brief attacking the trial court's decision to allow Dr. Leanne

Cronin, the State's assistant medical examiner, performed the autopsy of

Terrence Everett and classified his death as a homicide.

      On October 5, 2018, Judge Ravin heard oral argument from counsel. He

denied the petition in an order dated October 10, 2018. Judge Ravin attached to

the order a memorandum of opinion explaining the basis for his ruling.

Notwithstanding the finality of the judge's order, on October 16, 2018, PCR

counsel transmitted to Judge Ravin a supplemental pro se letter-brief from

defendant dated October 6, 2018. PCR counsel did not seek leave from the court

before submitting defendant's supplemental letter-brief. However, consistent




                                                                         A-2295-18T3
                                       4
with the Court's holding in State v. Rue, 175 N.J. 1, 19 (2002), PCR counsel

opted not to present any further oral argument in support of this position.

      Judge Ravin accepted this post-argument supplemental pro se submission

and issued a second order dated on November 5, 2018 supported by a

memorandum of opinion that explained the basis for denying defendant PCR.

Judge Ravin held that Dr. Cronin

            indicated that Mr. Everett died on the scene as a result
            of a fatal concussion. Mr. Everett's life was not being
            maintained by artificial means at the time of the
            autopsy. Thus, [p]etitioner has failed to establish a
            legal basis for his claim that Dr. Cronin was
            unauthorized or unqualified to testify as to the cause of
            Mr. Everett's death.

      Judge Ravin also addressed and rejected the balance of defendant's

arguments attacking defense counsel's performance at trial. Against these facts,

defendant raises the following arguments in this appeal:

            POINT I

            AS [DEFENDANT] RECEIVED INEFFECTIVE
            ASSISTANCE OF COUNSEL, HE IS ENTITLED TO
            [PCR].

            (1) Trial counsel was ineffective by failing to move to
            suppress Dr. Cronin's opinion as to the cause of death
            on the grounds it was a net opinion.

            (2) Trial counsel failed to investigate and present a
            mental health defense.

                                                                          A-2295-18T3
                                        5
               (3) Trial counsel was ineffective when she stipulated
               to Dr. Thoma's testimony.

               (4) Trial counsel was ineffective when she failed to
               argue in favor of less-included charges during
               summation.

               (5) Trial court's cumulative errors denied [defendant]
               effective legal representation.

               POINT II

               AS THERE WERE GENUINE DISPUTES OF
               MATERIAL FACT, AN EVIDENTIARY HEARING
               WAS REQUIRED.


         Defendant also raises the following arguments in a pro se supplemental

brief:


         POINT I     TRIAL COUNSEL WAS CONSTITUTIONALLY
                     INEFFECTIVE FOR NEITHER CHALLENGING
                     NOR SUPPRESSING STATE[']S EVIDENCE
                     BEFORE TRIAL.

         POINT II    TRIAL COUNSEL WAS CONSTITUTIONALLY
                     INEFFECTIVE    FOR   FAILING    TO
                     INVESTIGATE AND PRESENT A VIABLE
                     MENS REA DEFENSE.

         POINT III   TRIAL COUNSEL WAS CONSTITUTIONALLY
                     INEFFECTIVE FOR NEITHER CHALLENGING
                     [NOR] OBJECTING TO STATE[']S EXPERT
                     WITNESS.


                                                                        A-2295-18T3
                                         6
POINT IV   TRIAL COUNSEL WAS CONSTITUTIONALLY
           INEFFECTIVE UPON ASSERTING THE
           MOTION TO SUPPRESS THE CELL PHONE
           VIDEO FOOTAGE.

POINT V    TRIAL COUNSEL WAS CONSTITUTIONALLY
           INEFFECTIVE AND ACQUIESCE [SIC] OF
           TESTIMONY FROM A NON-TESTIFYING
           WITNESS.

POINT VI   APPELLATE        COUNSEL      [WAS]
           CONSTITUTIONALLY INEFFECTIVE DUE TO
           HIS FAILURE TO RAISE THE ARGUMENTS
           ASSERTED IN THIS CLAIM.

POINT VII MALICIOUS     PROSECUTION      FOR
          PRESENTING              FRAUDULENT
          DOCUMENTATION AND WITHHOLDING
          EXCULPATORY EVIDENCE DURING THE
          GRAND JURY PROCEEDINGS.

POINT VIII MALICIOUS     PROSECUTION     FOR
           INTENTIONALLY SOLICITING PERJURED
           TESTIMONY.

POINT IX   MALICIOUS          PROSECUTION         FOR
           SUBMITTING        HIGHLY     PREJUDICIAL
           EVIDENCE INTO TRIAL CONTRARY TO
           N.J.R.E. 401 AND 402, PURSUANT N.J.R.E. 403.

POINT X    MALICIOUS PROSECUTION FOR THE
           SUPPRESSION     OF    THE     STATE[']S
           NEUROPATHOLOGIST CONTRARY TO THE
           STATE[']S EXPERT WITNESS IN VIOLATION
           OF CRAWFORD v. WASHINGTON, 541 U.S. 26
           (2004).



                                                          A-2295-18T3
                             7
      We review a claim of ineffective assistance of counsel under the two-

prong test established by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984), and subsequently adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate

that defense counsel's performance was deficient. Strickland, 466 U.S. at 687.

Second, he must show there exists "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Id. at 694.

      The mere raising of a claim of ineffective assistance of counsel does not

entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999). An evidentiary hearing is necessary only if

a petitioner presented sufficient facts to make out a prima facie claim of

ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 463 (1992);

R. 3:22-10(b).      Defendant's unsupported, self-serving allegations are not

sufficient to satisfy this standard.    We affirm substantially for the reasons

expressed by Judge Ravin in his well-reasoned written opinions denying defendant's

PCR petition.     Defendant's remaining arguments, including those raised in

defendant's pro se supplemental brief, lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(2).


                                                                             A-2295-18T3
                                         8
Affirmed.




                A-2295-18T3
            9
