STATE OF NEW JERSEY VS. JOHNNY J. FERGUSON(05-07-1611, MONMOUTH COUNTY AND STATEWIDE)
A-4949-14T2
| N.J. Super. Ct. App. Div. | Jun 8, 2017Background
- In 2006 Johnny J. Ferguson pleaded guilty to third-degree burglary, third-degree attempted endangering the welfare of a child, and fourth-degree resisting arrest arising from entering a home at night, entering a bedroom where children slept, pulling down his pants and ejaculating onto a sleeping girl's underwear and bedding, and later being found asleep on the bed with genitals exposed.
- Pursuant to the plea, Ferguson received consecutive four-year terms on burglary and attempted endangering (aggregate parole ineligibility four years), a concurrent one-year term for resisting arrest, and parole supervision for life (PSL). Judgment entered June 8, 2006.
- Ferguson filed a pro se post-conviction relief (PCR) petition in April 2014—well after the five-year deadline in R. 3:22-12—and was later appointed counsel.
- He argued late filing was excusable because he did not learn of the PSL consequences until after parole; he also challenged the factual basis for the endangering conviction and asserted ineffective assistance for counsel’s alleged failure to recognize and advise about that insufficiency/PSL consequences.
- The PCR court dismissed the petition as time-barred under R. 3:22-12, held the factual-basis claim procedurally barred by R. 3:22-4 (could have been raised on direct appeal), and found no evidentiary support for an IAC claim.
- The Appellate Division affirmed, finding no excusable neglect or fundamental injustice, the plea colloquy supplied a sufficient factual basis for the endangering conviction, and counsel’s performance was not shown to be deficient.
Issues
| Issue | State's Argument | Ferguson's Argument | Held |
|---|---|---|---|
| Timeliness under R. 3:22-12 | Petition is time-barred; no excusable neglect or fundamental injustice | Late filing excused because Ferguson did not know PSL consequences until release | Affirmed: petition untimely; ignorance of PSL belied by plea colloquy and unsupported by competent evidence |
| Factual basis for attempted endangering (child-welfare) | Plea colloquy provided sufficient factual basis that conduct would debauch/impair child | Allocution insufficient because victim was asleep and did not see act | Affirmed: conviction supported—ejaculation on sleeping child qualifies as sexual conduct that could impair/debauch morals; attempt plea sufficient |
| Ineffective assistance of counsel (failure to advise re: PSL/factual basis) | No proof counsel’s performance was deficient or prejudicial | Counsel failed to recognize/advice about PSL consequences and factual-basis weakness | Affirmed: defendant presented no competent evidence of deficient performance or prejudice under Strickland/Fritz standards |
| Procedural bar R. 3:22-4 (claims foreclosed because could be appealed) | Factual-basis claim could and should have been raised on direct appeal | Claim should be heard in PCR because of counsel error and PSL impact | Affirmed: claim barred by procedural rule; no fundamental injustice shown to excuse bar |
Key Cases Cited
- State v. Brewster, 429 N.J. Super. 387 (App. Div. 2013) (late PCR filing excusable-neglect standard)
- State v. Nash, 212 N.J. 518 (2013) (standard for showing fundamental-injustice in collateral attack)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged ineffective-assistance standard)
- State v. Fritz, 105 N.J. 42 (1987) (application of Strickland in New Jersey)
- State v. Bryant, 419 N.J. Super. 15 (App. Div. 2011) (conduct that can impair or debauch a child supports endangering conviction)
- State v. Breitweiser, 373 N.J. Super. 271 (App. Div. 2004) (affirming sexual-offense conviction where child did not actually see defendant’s sexual conduct)