STATE OF NEW JERSEY VS. BRENT A. JOHNSON (11-11-2778, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

S
                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-2233-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRENT A. JOHNSON,

     Defendant-Appellant.
_______________________

                   Submitted January 27, 2021 – Decided March 17, 2021

                   Before Judges Sumners and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment No 11-11-2778.

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

                   Damon G. Tyner, Atlantic County Prosecutor, attorney
                   for respondent (Nicole L. Campellone, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Brent A. Johnson appeals the Law Division's August 1, 2019

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

hearing. He argues:

            POINT I

            CONTRARY TO THE PCR COURT'S FINDING,
            DEFENDANT'S    PETITION    FOR   POST-
            CONVICTION RELIEF IS NOT PROCEDURALLY
            BARRED. (RAISED BELOW.)

            POINT II

            AS DEFENDANT'S ATTORNEY FAILED TO RAISE
            MITIGATING FACTORS IN FAVOR OF HIS
            CLIENT AT SENTENCING, HE IS ENTITLED TO
            POST-CONVICTION RELIEF. (RAISED BELOW.)

            POINT III

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

We affirm, albeit for different reasons than those stated by the PCR judge in his

decision. See Hayes v. Delamotte, 

231 N.J. 373

, 387 (2018) (applying the well-

settled principle "that appeals are taken from orders . . . and not from opinions,

. . ." and that orders may be affirmed for reasons different from those set forth

by the trial court) (quoting Do-Wop Corp. v. City of Rahway, 

168 N.J. 191

, 199

(2001)).


                                                                            A-2233-19
                                        2
                                        I

      On the evening of May 27, 2011, and into the early morning hours of the

next day, an incident occurred at an Atlantic City casino's parking garage

resulting in numerous charges against defendant and his co-defendants for

robbing and physical assaulting a man and sexually assaulting a woman. For

purposes of this opinion the incident's details need not be discussed, as they are

fully set forth in our unpublished decision pertaining to defendant's direct

appeal. State v. Cooper, Nos. A-2011-12T1, A-2988-12T1, A-3099-12T1 (App.

Div. Sep. 4, 2015), certif. denied, 

224 N.J. 124

(2016). We affirmed defendant's

convictions and sentences for second-degree robbery, first-degree armed

robbery, second-degree conspiracy to commit armed robbery, second-degree

possession of a weapon for an unlawful purpose, third-degree unlawful

possession of a weapon, but vacated and remanded for retrial his convictions for

first-degree aggravated sexual assault and second-degree sexual assault.

Id.,

slip op. at

2-3, 41.

      Following remand, the parties negotiated a plea agreement resulting in

defendant's resentencing on April 12, 2017.        Defendant pled guilty to an

amended charge of third-degree aggravated criminal assault, and the State

dismissed the first-degree aggravated sexual assault charge. In accordance with


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                                        3
the State's recommendation, defendant was sentenced to a five-year prison term,

subject to two-and-a-half years of parole ineligibility, concurrent to the fifteen-

year prison term left intact when we affirmed the other convictions. A judgment

of conviction (JOC) was entered on May 16, 2017, and amended on July 20,

2017, to properly reflect defendant's resentencing.

      Defendant appealed, claiming the trial court should have reconsidered his

entire sentence and applied mitigating factor seven, no prior criminal history,

N.J.S.A. 2C:44-1(b)(7), as it did when it resentenced him on third-degree

aggravated criminal assault. On February 18, 2018, we denied the appeal on our

excessive sentence oral argument (ESOA) calendar, stating "the findings of fact

regarding aggravating and mitigating factors were based on competent and

credible evidence in the record . . . and that the court did not abuse its discretion

in imposing the sentence." See State v. Cassady, 

198 N.J. 165

(2009); State v.

Roth, 

95 N.J. 334

(1984). 1




1
  A remand, with the State's consent, was directed to correct the trial court's
double imposition of a penalty.


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                                         4
      Seven months later, on September 26, 2018, defendant filed a pro se PCR

petition.2 The petition was later supplemented with a legal brief submitted by

defendant's assigned PCR counsel alleging that trial counsel was ineffective for

failing to argue mitigating factors eight, conduct was the result of circumstances

unlikely to recur, N.J.S.A. 2C:44-1(b)(8), and mitigating factor nine, character

and attitude indicate an unlikelihood of reoffending, N.J.S.A. 2C:44-1(b)(9),

based upon comments by defendant and his mother at his December 12, 2012

sentencing.3 Defendant also argued that at the April 12, 2017 resentencing,

counsel failed to present his accomplishments while incarcerated – obtaining an

associate's degree and several certificates of achievement and completion –

which demonstrate his unlikelihood to commit another offense. PCR counsel

later filed a notice of motion to modify defendant's sentence.

      Following oral argument, the PCR judge reserved decision and thereafter

issued an order and written decision on August 1, 2019, denying relief on

procedural grounds without an evidentiary hearing.        Noting defendant was


2
  On May 4, 2017, defendant filed a pro se PCR alleging ineffective assistance
of trial and appellate counsel and an illegal and excessive sentence. On August
21, 2017, a different PCR judge dismissed the petition "without prejudice for
failure to comply with [Rule] 3:22-8."
3
  The brief inadvertently states the sentencing occurred on May 27, 2011, the
date the offense occurred.
                                                                            A-2233-19
                                        5
initially sentenced on December 2, 2012, the judge determined his petition was

filed beyond the five-year time limit imposed by Rule 3:22-12(a)(1). The judge

further determined the claim was barred under Rule 3:22-4 because it could have

been raised on direct appeal. He also found that Rule 3:22-5 barred defendant's

excessive sentence claim because we previously affirmed his sentences in our

September 4, 2015 unpublished decision and February 8, 2018 ESOA order.

                                        II

      Defendant's September 26, 2018 petition claim regarding his December

12, 2012 conviction is untimely. It was filed more than five years after the

conviction date without proof of "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 injusti ce[.]" R.

3:22-12(a)(1)(A); State v. Brewster, 

429 N.J. Super. 387

, 400 (App. Div. 2013).

Yet, defendant's claim regarding his April 12, 2017 resentencing was timely

filed; defendant presented this claim well within the five-year time bar.

      Nor was the resentencing claim procedurally barred by Rule 3:22-4

because it could have been raised on direct appeal. The Rule does not apply

since defendant asserted that his trial counsel was ineffective at resentencing in

not arguing mitigating factors eight and nine to obtain a lighter sentence for his


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                                        6
plea to the amended charge of third-degree aggravated criminal assault. Despite

rejecting defendant's excessive sentence appeal on our ESOA calendar, we did

not address, nor could we in that proceeding, the contention that trial counsel

was ineffective for not raising mitigating factors because such claim was outside

the trial record. See State v. Preciose, 

129 N.J. 451

, 460 (1992).

      Nonetheless, the dismissal of defendant's petition was correct. We review

de novo a PCR judge's factual findings made without an evidentiary hearing and

legal conclusions. State v. Harris, 

181 N.J. 391

, 415 (2004). We apply the two-

prong Strickland test, adopted in State v. Fritz, 

105 N.J. 42

(1987). Strickland

v. Washington, 

466 U.S. 668

, 687 (1984). We consider, one, whether counsel's

performance was constitutionally deficient, and two, whether defendant suffered

resulting prejudice, that is, whether there is "reasonable probability that, but for

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

different."

Id. at 694.

      Defendant's reliance upon initial sentencing comments by him, his

mother, and trial counsel to support his claim that mitigating factors should have

been raised at his resentencing is without merit. Those comments could not be

considered at his resentencing because we previously rejected them in denying




                                                                              A-2233-19
                                         7
his excessive sentence claim in our unpublished September 4, 2015 decision.

Thus, they were properly barred under Rule 3:22-5.

      Defendant's reliance upon his college degree and certifications obtained

in prison after his initial sentencing to support his mitigating factors argument

is equally without merit. He has not shown how these accomplishments would

support a reasonable probability that his sentence would have been different had

counsel argued them. There is nothing in the record demonstrating that th e

sentencing judge would have deviated from a negotiated plea agreement and

sentenced defendant to a lower term. See State v. S.C., 

289 N.J. Super. 61

, 71

(App. Div. 1996) (quoting State v. Sainz, 

107 N.J. 283

, 294 (1987) ("While the

sentence imposed must be a lawful one, the court's decision to impose a sentence

in accordance with the plea agreement should be given great respect, since a

'presumption of reasonableness . . . attaches to criminal sentences imposed on

plea bargain defendants.'")).

      In fact, the plea agreement was, by any objective analysis, favorable to

defendant: dismissal of the first-degree aggravated sexual assault charge;

pleading to an amended charge of third-degree aggravated criminal assault; and

serving a five-year prison term, subject to two-and-a-half years of parole

ineligibility, concurrent to the fifteen-year prison term that he was already


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                                       8
serving. Hence, the failure to raise the losing argument that his sentence should

have been lighter does not amount to deficient performance. See State v. Echols,

199 N.J. 344

, 361 (2009) ("[T]he failure of trial counsel to object to the

comments . . . could not lead to the conclusion that there is a reasonable

probability that, but for the errors of trial . . . counsel, the outcome would have

been different."); State v. Worlock, 

117 N.J. 596

, 625 (1990) (citing 

Strickland,

466 U.S. at 688

; 

Fritz, 105 N.J. at 52

) ("The failure to raise unsuccessful legal

arguments does not constitute ineffective assistance of counsel.").

      Finally, defendant was not entitled to an evidentiary hearing because he

did not establish a prima facie showing of "a reasonable likelihood that his . . .

claim [of ineffective assistance of counsel] will ultimately succeed on the

merits." State v. Marshall, 

148 N.J. 89

, 158 (1997).

      Affirmed.




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