Opinion
DOCKET NO. A-5208-13T2
10-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARVIN SPEARS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Tassini. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-12-04089. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Marvin Spears appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing, and seeks a remand for the appointment of new PCR counsel. The State opposes the appeal as procedurally barred and substantively unsupported. We affirm.
Facts and Procedural History
We have previously recounted the facts and trial of this matter. State v. Spears, No. A-5996-93T1 (App. Div. July 5, 1995). We provide the following summary.
On the night of September 6, 1992, on a roadway in East Orange, L. Herring parked his car and he, and his passengers S. Rogers and M. Arline, got out. Nearby, defendant parked a Mercedes Benz and he and Shariff Tilghman, his passenger, got out. Defendant and Tilghman, one with a gun, approached and confronted Herring, Rogers and Arline. Tilghman told Herring and Rogers to lay down on their stomachs and took money and a necklace from Herring. Arline heard a gunshot. Rogers saw the two men run back to the Mercedes Benz and flee in it. Rogers testified that he had a very good look at the driver's face. Herring died from a single .38 gunshot to the head.
On September 8, 1992, from a photo array, Rogers picked a photo of someone other than defendant as the shooter. However, in late September or early October 1992, from another photo array, Rogers picked a photo of defendant as the shooter. On September 22, 1992, Tilghman gave a statement implicating himself and defendant. Pursuant to a warrant, police arrested defendant, and seized his coat, in which they found a box of .38 rounds - the same type fired to kill Herring. Tilghman pled guilty pursuant to a plea agreement, and agreed to testify.
On December 1, 1992, an Essex County Grand Jury charged defendant as follows: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first-degree armed robbery of Herring, N.J.S.A. 2C:15-1 (count two); first-degree felony murder of Herring, N.J.S.A. 2C:11-3(a)(3) (count three); first-degree purposeful or knowing murder of Herring, N.J.S.A. 2C:11-3(a)(1) (count four); first-degree armed robbery of Arline, N.J.S.A. 2C:15-1 (count five); first-degree robbery of Rogers, N.J.S.A. 2C:15-1 (count six); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven); second-degree unlawful possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight).
At defendant's jury trial in January and February 1994, Tilghman testified on behalf of the State and stated that defendant shot Herring, but that the shooting was accidental. A passerby testified that he knew and recognized Tilghman in a car that passed by in the area of the crimes. He said Tilghman looked suspicious. Defendant testified that he knew Tilghman, but that he met him only three weeks prior to the incident.
On February 14, 1994, the jury found defendant guilty of all counts, except that it found him guilty of the lesser included crime of aggravated manslaughter on count four, and it acquitted him on count five, robbery of Arline. On March 7, 1994, the trial judge sentenced defendant, after merger, to an aggregate term of thirty years with no parole. The judge entered a conforming judgment of conviction (JOC).
On direct appeal, defendant argued: the trial judge erroneously denied a motion for a mistrial; the admission of defendant's prior convictions constituted reversible error; prosecutorial misconduct deprived defendant of a fair trial; the trial judge allowed the medical examiner to give opinion beyond her expertise, constituting reversible error; the admission of "other crime" evidence constituted reversible error; and the trial judge erroneously failed to excuse a juror during deliberations. We affirmed and, on January 28, 1998, the Supreme Court dismissed the untimely petition for certification as moot.
More than fourteen years after entry of the JOC and more than ten years after dismissal of the petition for certification, defendant filed his pro se petition for PCR, dated June 26, 2008. He asserted as the basis for relief, "ineffective assistance of counsel," without further elaboration. Defendant's present appellate counsel — his third attorney to handle his PCR — contends that defendant's first assigned PCR counsel, did not meet with or discuss the case with defendant, although he filed a brief in February 2011, which presented the following points:
POINT I
THE EVIDENCE SHOULD HAVE BEEN SUPPRESSED BY THE TRIAL COURT BECAUSE THE [] ARREST WARRANT WAS NOT LAWFULLY EXECUTED IN THE THIRD PARTY APARTMENT AND ANY SUBSEQUENT EVIDENCE DISCOVERED CLEARLY VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS AND DID NOT FALL UNDER ANY OF THE EXCEPTIONS TO THE WARRANT REQUIREMENT.
POINT II
THE ITEMS SEIZED INCIDENT TO MR. SPEARS'S ARREST SHOULD HAVE BEEN SUPPRESSED BY THE TRIAL COURT BECAUSE WHILE THE POLICE HAD VALID ARREST WARRANT THEY UNLAWFULLY ENTERED THE APARTMENT OF A THIRD PERSON AND RETRIEVE[D] EVIDENCE THAT WAS NOT WITHIN THE IMMEDIATE REACH OF MR. SPEARS.
POINT III
THE IDENTIFICATION PROCEDURE UTILIZED BY THE POLICE WAS SO IMPERMISSIBLY SUGGESTIVE THAT THE ADMISSION OF THE OUT-OF-COURT IDENTIFICATION OF THE DEFENDANT WOULD DEPRIVE HIM OF RIGHT TO A FAIR TRIAL.
POINT IV
MR. SPEARS[] SUFFERED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND A HEARING IS REQUIRED.
POINT V
MR. SPEARS' CLAIM OF INEFFECTIVE ASSISTANCE OF APPELLATE AND TRIAL COUNSEL IS NOT PROCEDURALLY BARRED.
Defendant's second assigned PCR counsel relied on that brief when he appeared at oral argument on February 3, 2012. Counsel stated he had no other issues to present.
The judge stated that the petition appeared time-barred. Counsel contended, in response, that the Supreme Court had stated that defendant was not time-barred, but he offered no documentation to support that assertion. Noting that an incomplete record had been presented, the judge directed counsel to file the full record, including Appellate Division and Supreme Court decisions.
Counsel never complied with the court's direction. On April 29, 2013, the judge entered a written order denying PCR. The court order stated that defendant failed to demonstrate that he was denied effective assistance of counsel, or that he was entitled to an evidentiary hearing. The judge did not issue any additional statement of reasons for the order.
On June 27, 2014, defendant filed the notice of appeal from denial of PCR. The State notes that defendant has not provided the following transcripts: January 25, 1994, pretrial motion; January 27 and 28, 1994, trial transcripts.
Defendant's sole point on appeal is the following:
THIS CASE MUST BE REMANDED FOR NEW PCR COUNSEL, A NEW PCR HEARING, AND A NEW PCR JUDGE BECAUSE (1) PCR COUNSEL FAILED TO REPRESENT DEFENDANT AND ALSO UNDERMINED HIS CLAIMS SO AS TO RENDER HIS PCR HEARING MEANINGLESS AND (2) THE PCR COURT FAILED TO RENDER A FULL AND FAIR DECISION.
Conclusions
PCR is New Jersey's analogue to the federal writ of habeas corpus. State v. Afanador, 151 N.J. 41, 49 (1997); State v. Preciose, 129 N.J. 451, 459 (1992); see R. 3:22-1. PCR provides a means for a defendant to raise issues that he could not raise on direct appeal and to thereby challenge the legality of his sentence or JOC to ensure he was not unjustly convicted. State v. McQuaid, 147 N.J. 464, 482-83 (1997).
Petitions for PCR are subject to time limitations. With respect to a first petition:
no petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the [JOC] that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's 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).]
The petition before us is not a second or subsequent petition, nor was the petition dismissed without prejudice pending direct appeal. Therefore, Rule 3:22-12(a)(2) - (4) does not apply. --------
Rule 3:22-12(a)(1)'s five-year time limitation begins to run upon the filing of the JOC, "even if further trial proceedings relating to the sentence are conducted during the interim period." State v. Dugan, 2 89 N.J. Super. 15, 20 (App. Div.), certif. denied, 145 N.J. 373 (1996). A defendant should file his petition for PCR "with the county clerk where its date of receipt is routinely recorded." State v. Culley, 250 N.J. Super. 558, 561 (App. Div. 1991). The filing of a direct appeal does not toll the time limitation for the filing of a PCR. State v. Dillard, 208 N.J. Super. 722, 727 (App. Div.), certif. denied, 105 N.J. 527 (1986).
Rule 3:22-12(a)(1)'s time limitations provide "finality of judgments"; encourage "those believing they have grounds for post-conviction relief to bring their claims swiftly and discourages them from sitting on their rights until it is too late for a court to render justice." State v. Mitchell, 126 N.J. 565, 576 ( 1992). See, e.g. State v. Merola, 365 N.J. Super. 203, 216-19 (Law Div. 2002) (denying a second PCR as untimely when filed fifteen years after entry of JOC), aff'd o.b., 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR]." R. 3:22-10(b). The trial court should consider the facts in the light most favorable to defendant to determine whether the defendant has presented a prima facie case. Preciose, supra, 129 N.J. at 462; State v. Garcia, 320 N.J. Super. 332, 338 (App. Div. 1999). If there is a disputed issue related to a material fact relative to whether defendant has a right to PCR, the trial court should hold a hearing. Merola, supra, 365 N.J. Super. at 215 (citing State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000)). Defendant must, by the preponderance of the evidence, establish his right to PCR. Merola, supra, 365 N.J. Super. at 216 (citing Preciose, supra, 129 N.J. at 459).
Under New Jersey law, defendants asserting ineffectiveness of counsel for the first time, whether by direct appeal or petition for PCR, have a constitutional right to counsel. State v. Quixal, 431 N.J. Super. 502, 513 (App. Div. 2013). PCR counsel, to render diligent service, must communicate with the defendant and investigate his claims and make effective argument on his behalf and failure to do so can require remand. State v. Hicks, 411 N.J. Super. 370, 375 (App. Div. 2010).
Here, procedurally, given the 1994 JOC and 1998 dismissal of the petition for certification, defendant's 2008 petition was long out of time and the defendant has not shown good cause to extend the time for filing. Defendant's sole basis for his late filing, presented to the PCR court, was that he could not have known he had a basis for PCR until after his direct appeal concluded and he was able to consult with an attorney. However, that does not explain the length of the delay. Moreover, to establish excusable neglect, it is not enough to allege that a defendant "did not learn about the deficiencies in counsel's advice on a variety of topics until after the five-year limitation period had run." State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013). Accordingly, defendant's petition was untimely.
On appeal, defendant does not address the issue of the time-bar, nor does defendant press the substantive points raised by PCR counsel before the trial court including those pertaining to the arrest warrant, the search and seizure, and the identification procedure. Defendant argues instead that he failed to receive effective representation of PCR counsel, because defendant's second PCR attorney rested on his predecessor's brief, stated he had no additional issues to add, and failed to present a full trial record to the court. Defendant also argues the trial court erred when it denied the petition, after counsel failed to provide the court with the promised record. He seeks a remand for the appointment of new counsel, and a new hearing.
As noted, a defendant has a constitutional right to counsel when raising ineffective assistance of counsel for the first time. Quixal, supra, 431 N.J. Super. at 513. Our Rules also impose "an independent standard of professional conduct on an attorney representing a defendant in a PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010). We do not condone the failure of defendant's second PCR counsel to provide the PCR court with the trial record in a timely way.
Nonetheless, we are unpersuaded that a remand is warranted. Defendant's first PCR counsel filed a comprehensive brief in support of defendant's request for relief. Defendant makes no effort to press these points before us, notwithstanding the filing of trial record (with exceptions noted above). Defendant presents no new facts that prior PCR counsel may have overlooked to support relaxation of the time-bar. Absent such proof, we decline to remand for further proceedings.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION