SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0395-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHNEL D. DUNLAP,

Defendant-Appellant.

_____________________________

Argued October 16, 2018 – Decided

Before Judges Yannotti and Rothstadt.

On appeal from Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment Nos. 10-07-

0983 and 10-07-0995.

Annette Verdesco argued the cause for appellant (The 

Anthony Pope Law Firm, PC, attorneys; Annette 

Verdesco, on the briefs).

Joie D. Piderit, Assistant Prosecutor, argued the cause 

for respondent (Andrew C. Carey, Middlesex County 

Prosecutor, attorney; Susan Lynn Berkow, Special 

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NOT FOR PUBLICATION WITHOUT THE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.

December 28, 2018
2

A-0395-17T3

Defendant, Johnel Dunlap, appeals from the denial of his petition for postconviction relief ("PCR") without an evidentiary hearing. For the reasons that 

follow, we affirm.

Defendant pled guilty on September 27, 2012, to first-degree leading a 

narcotics trafficking network, N.J.S.A. 2C:35-3, and second-degree certain 

persons not to possess weapons, N.J.S.A. 2C:39-7(b). Prior to pleading guilty, 

defendant was represented by Richard Roberts, Esq. who filed unsuccessful 

motions to suppress evidence and to dismiss the indictment. After the trial court 

denied those motions, defendant became dissatisfied with Roberts and, more 

than a month before a scheduled trial date, retained Kenyatta Stewart, Esq. to 

represent him.

Although defendant retained Stewart, the trial court would not relieve 

Roberts at that late date but allowed Stewart to appear as co-counsel. Also, at a 

pre-trial conference held on September 21, 2012, the court made clear that 

defendant's attorneys were free to file a motion to reopen the suppression 

hearing if new evidence was obtained. Despite that opportunity, neither Roberts 

nor Stewart filed any motions and instead, Stewart negotiated the plea agreement 

with the State that led to defendant pleading guilty. On November 15, 2012, the 
3

A-0395-17T3

court sentenced defendant in accordance with his plea agreement to an aggregate 

thirty years in prison with a fifteen-year period of parole ineligibility.

Defendant appealed his conviction and sentence. We affirmed in an 

unpublished opinion. State v. Dunlap, No. A-4298-12 (App. Div. Jan. 19, 2016). 

The Supreme Court denied defendant's petition for certification. State v. 

Dunlap, 227 N.J. 221 (2016).

The facts underlying defendant's convictions are set forth in our prior 

opinion and need not be repeated here. See Dunlap, No. A-4298-12, slip op. at 

5-8. In his appeal from his conviction, defendant argued that the trial court erred 

in denying his motion to dismiss the indictment. In our opinion, we adhered to 

the guiding principle that "[a] plea of guilty amounts to a waiver of all issues, 

including constitutional claims, that were or could have been raised in prior 

proceedings[,]" and refused to consider defendant’s challenge to the denial of 

the motion to dismiss the indictment because he did not preserve the issue for 

appeal. Id. at 9-10 (quoting State v. Marolda, 394 N.J. Super. 430, 435 (App. 

Div. 2007)).

We also rejected defendant’s argument that "he suffered a 'constructive 

denial of counsel' and ineffective assistance because counsel failed to file a 

motion to suppress the evidence seized" from two motor vehicles that allegedly 
4

A-0395-17T3

were searched before a warrant was obtained. Id. at 18. We concluded that the 

contention was belied by the record of the suppression hearing. Id. at 19, 22. In 

our discussion, we observed that "[a]lthough the trial judge denied [counsel's] 

request [for more time to locate the witnesses], . . . [the trial court] advised 

counsel he could renew the motion for a continuance and receive additional time 

to locate the witnesses if he presented more specific testimony from his 

investigator . . . ." Id. at 21.

We also rejected defendant's related ineffective assistance of counsel 

("IAC") argument that "trial counsel failed to subpoena two witnesses . . . to 

support a suppression motion" based on the search of the two vehicles. Id. at 

19. After reviewing in detail the record of Roberts' attempts to contact the 

witnesses, we concluded,

the record . . . shows that trial counsel attempted to 

secure the testimony of the witnesses described by 

defendant for the suppression hearing, that he requested 

additional time to speak to the one witness located to 

determine whether to subpoena him and recognized 

that, in light of the witness's unwillingness, a strategic 

decision was required as to whether to subpoena him.

[Id. at 22.]

Because we concluded it was a "strategic decision," we found defendant's claim 

of IAC to be without merit. Id. at 22-24.
5

A-0395-17T3

Defendant filed a PCR petition on September 2, 2016, claiming IAC. In 

his petition, defendant contended that Roberts failed to produce witnesses at the 

suppression hearing; did not move to reopen the suppression hearing to 

challenge the validity of the search warrants for the two vehicles; failed to 

preserve a right to challenge the denial of defendant's motion to dismiss the 

indictment; and did not challenge the sufficiency of the evidence relating to the 

charge of first-degree leader of a narcotics trafficking network.

Defendant submitted a certification in support of his petition in which he

described what he understood to be the content of statements given to an 

investigator by the two witnesses that Roberts did not call at the suppression 

hearing. He also explained how he provided Roberts with his automobile toll 

records that contradicted the State's witnesses and which Roberts did not use at 

the hearing.

Defendant argued that by not calling the witnesses or obtaining 

certifications from them and moving to reopen the suppression hearing, or using 

the toll records, defendant was "deprived of a viable defense to the evidence 

illegally obtained without a search warrant." Defendant explained that Roberts' 

failure to do so led to his dissatisfaction with counsel and his hiring of Stewart. 
6

A-0395-17T3

He also cited to Robert's being ineffective in pursuing the motion to dismiss the 

indictment.

Stewart also submitted a certification in support of defendant's petition. 

In his certification, Stewart advised that he became defendant's attorney on 

August 12, 2012, and at the time of the plea hearing, he and Roberts represented 

defendant together, although only Roberts appeared at the hearing. He described 

defendant's complaints about Roberts as set forth in defendant's certification and 

added an allegation that defendant did not raise concerning Roberts not visiting 

defendant in jail to discuss the case. Contrary to the record of the September

21, 2012 pre-trial conference, Stewart stated that when he entered the case, the 

trial court would not let him file any motions. Stewart contended that Roberts 

admitted that he "messed up" in not producing the witnesses at the suppression 

hearing and that Roberts did not "review the thousands of documents" Roberts 

obtained from the prosecutor through discovery.

In opposition to defendant's petition, the State filed the certification of 

Christine M. D'Elia, the assistant prosecutor responsible for defendant's 

prosecution. In her certification, D'Elia stated that at the time of defendant's 

plea, the State would not have agreed to a reservation of rights in defendant's 

plea agreement as to any issue other than the denial of his suppression motion. 
7

A-0395-17T3

She also stated that at the time of the scheduled trial, if defendant was convicted, 

he was facing a sentence of up to life in prison with a twenty-five year period of 

parole ineligibility on one of the charges and, in response to being "urged" by 

Stewart, she agreed to the plea arrangement that led to defendant's guilty plea.

After considering the parties' submissions and oral arguments, Judge 

Pedro J. Jimenez, Jr. denied defendant's petition by order dated August 22, 2017. 

In his accompanying comprehensive written decision, the judge compared the 

assertions defendant made in his earlier appeal and those argued in his PCR 

petition. He concluded that defendant’s PCR claims about Roberts not calling

the two witnesses or seeking to reopen the suppression hearing based upon their 

alleged anticipated testimony were precluded under Rule 3:22-5, which bars a 

petition for PCR when the merits of the petition have been previously 

adjudicated.

Judge Jimenez similarly found that defendant's claims relating to Roberts' 

failure to adequately pursue the motion to dismiss the indictment was also 

addressed in our earlier opinion and therefore procedurally barred on PCR. He 

also observed that, in any event, there was no proof that the State would have 

agreed to a conditional plea that preserved defendant's right to appeal the denial 

of that motion in light of D'Elia's certification.
8

A-0395-17T3

Although Judge Jimenez concluded defendant's claims were procedurally 

barred, he addressed the merits of defendant's allegations of IAC. The judge 

concluded that defendant failed to establish a prima facie claim that Roberts 

committed any "serious error[]" when he made "a strategical decision" to not 

call the two "possibly unreliable witnesses" at the suppression hearing, which 

Stewart never attempted to cure if defendant truly viewed it as an error. 

Moreover, the judge concluded that even if errors were made, defendant also 

failed to establish that he would not have pled guilty absent counsel's alleged 

deficiencies.

In discussing the information filed in support of defendant's petition, 

Judge Jimenez observed that the only new evidence of alleged IAC by Roberts 

advanced by defendant since his appeal was Stewart's certification.1 The judge 

concluded from the certification that Stewart was aware of the facts argued by 

defendant in support of his IAC claim in his earlier appeal and now again on 

PCR. He observed that despite that knowledge, Stewart never took any action 

 

1

 We observe that on this appeal, defendant's appendix contains various 

documents relative to disciplinary matters involving Roberts. It does not appear 

from either defendant's or Stewart's certifications that the documents were filed 

with the PCR court. However, even if they were, we find them to be without 

any probative value as to defendant's contentions on PCR or in his present 

appeal.
9

A-0395-17T3

to remedy Roberts' alleged deficiencies, such as filing a motion to reopen the 

suppression hearing, but instead pursued negotiating a plea agreement for 

defendant. Judge Jimenez inferred that Stewart shared Roberts' view that the 

"two (2) witnesses were not credible enough to take the stand," and for that 

reason, "never petitioned the court to reopen the motion."

Under those circumstances, the judge concluded that Stewart's decision to 

not file any motions undermined defendant's argument that Roberts was 

ineffective or that defendant would not have pled guilty if the motion was made. 

Accordingly, the judge found that not only were defendant's PCR claims 

procedurally barred, defendant also failed to "present a prima facie case" of IAC. 

This appeal followed.

On appeal, defendant presents the following issue for our consideration:

THE TRIAL COURT COMMITTED REVERSIBLE 

ERROR IN DENYING APPELLANT'S MOTION FOR 

POST CONVICTION RELIEF.

In support of his contention, defendant again argues that Roberts failed to 

call the two witnesses; failed to move to reopen the suppression hearing; failed 

to preserve defendant’s right to appeal the denial of his motion to dismiss the 

indictment; and failed to challenge the sufficiency of the evidence supporting 

the leader of narcotics trafficking charge.
10 A-0395-17T3

We are not persuaded by any of these arguments and affirm substantially 

for the reasons expressed by Judge Jimenez in his thorough decision. The 

underlying facts from the record were undisputed and the judge's legal 

conclusion about defendant's petition being procedurally barred under Rule

3:22-5 was legally correct.2 See State v. McQuaid, 147 N.J. 464, 483-84 (1997).

We also agree with Judge Jimenez that, even if defendant's claims were 

not procedurally barred, he failed to satisfy either prong under Strickland v. 

Washington, 466 U.S. 668, 687 (1984). The standard for determining whether 

counsel's performance was ineffective for purposes of the Sixth Amendment was 

formulated in Strickland and adopted by our Supreme Court in State v. Fritz, l05 

N.J. 42, 49 (l987). In order to prevail on a claim of ineffective assistance of 

counsel, defendant must establish both that: (l) counsel's performance was 

deficient and he or she made errors that were so egregious that counsel was not 

 

2

 We view defendant's allegation that Roberts failed to utilize EZ Pass violation 

records to show the duration of the search of the two vehicles lasted longer than 

the State's investigation suggested to be subsumed by his contentions on direct 

appeal and therefore also procedurally barred under the same rule. To the extent 

the claim was not raised on direct appeal, it is procedurally barred under Rule 

3:22-4 because "that the ground for relief[, which was] not previously asserted 

could . . . have been raised in" his direct appeal, R. 3:22-4(a), and defendant 

cannot demonstrate that a failure to use the records "played a role in the 

determination of guilt." State v. Brewster, 429 N.J. Super. 387, 400-01 (App. 

Div. 2013) (quoting State v. Nash, 212 N.J. 518, 546 (2013)).
11 A-0395-17T3

functioning effectively as guaranteed by the Sixth Amendment to the United 

States Constitution; and (2) the defect in performance prejudiced defendant's 

rights to a fair trial such that there exists a "reasonable probability that, but for 

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

different." Strickland, 466 U.S. at 687, 694.

The Strickland two-prong analysis applies equally to convictions after a 

trial or after a defendant pleads guilty. In the context of a PCR petition 

challenging a guilty plea, the first Strickland prong is satisfied when a defendant 

establishes that "there is a reasonable probability that, but for counsel's errors

[he or she] would not have pled guilty and would have insisted on going to trial." 

State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. Nunez-Valdez, 200 

N.J. 129, 139 (2009)). The second prong is met when a defendant establishes a 

reasonable probability he or she would have insisted on going to trial. Ibid.

We agree that defendant failed to establish that Roberts' performance was 

deficient and that he committed any egregious errors. Even if he did, we also 

conclude that defendant did not make a prima facie showing that, but for 

counsel's errors, he would not have pled guilty. The record clearly indicates

that, despite the State's evidence against defendant, Stewart was able to 

negotiate a favorable plea for defendant. Specifically, under N.J.S.A. 2C:35-3, 
12 A-0395-17T3

if convicted, defendant was facing a mandatory sentence of life imprisonment 

with twenty-five years of parole ineligibility. Only through a plea agreement 

could the mandatory sentence be waived. See N.J.S.A. 2C:35-12. Therefore, 

defendant's ability to plead guilty and to be sentenced to thirty years with fifteen 

years of parole ineligibility was in all respects a highly beneficial result for 

defendant. Nothing in the record suggests that he would have preferred to go to 

trial and face the mandatory life sentence or that he would have chosen to do so 

but for Roberts' deficiencies.

Because we are satisfied that defendant failed to make a prima facie 

showing of ineffectiveness of counsel within the Strickland-Fritz test, we also 

find that Judge Jimenez correctly concluded that an evidentiary hearing was not 

warranted. See State v. Jones, 219 N.J. 298, 311 (2014).

Affirmed.