RECORD IMPOUNDED

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

NOT FOR PUBLICATION WITHOUT THE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.
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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 POSTCONVICTION 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 wellsettled 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)).
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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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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 fifteenyear 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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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. 
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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 injustice[.]" 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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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 twoprong 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 
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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 the 

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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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.