STATE OF NEW JERSEY VS. MAURICE SPAGGERY (05-02-0254, UNION COUNTY AND STATEWIDE)

                                NOT FOR PUBLICATION WITHOUT THE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-0505-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE SPAGGERY,
a/k/a PHIL BROWN,
STAGGERY MAURICE,
PETE BROWN, PHILLIP F.
BROWN, and SPAGGERY
MARUICE,

Defendant-Appellant.
___

                                NOT FOR PUBLICATION WITHOUT THE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-0505-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MAURICE SPAGGERY,
a/k/a PHIL BROWN,
STAGGERY MAURICE,
PETE BROWN, PHILLIP F.
BROWN, and SPAGGERY
MARUICE,

     Defendant-Appellant.
__________________________

                   Submitted July 13, 2020 – Decided October 29, 2020

                   Before Judges Suter and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 05-02-0254.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Phuong V. Dao, Designated Counsel, on the
                   brief).

                   Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Milton S. Leibowitz, Special
             Deputy Attorney General/Acting Assistant Prosecutor,
             of counsel and on the brief).

PER CURIAM

       Defendant Maurice Spaggery1 appeals from the dismissal on August 21,

2018 of his second petition for post-conviction relief (PCR).        He alleges

ineffective assistance of counsel, arguing his trial counsel did not file

appropriate motions or complete the investigation prior to the plea-cutoff date,

did not request approval from the criminal presiding judge under Rule 3:9-3(g)

to accept a plea after the pre-trial conference, and misunderstood the importance

of the plea-cutoff. He claims his first PCR counsel and his appellate counsel in

two prior appeals provided constitutionally ineffective assistance by not arguing

vigorously about trial counsel's alleged deficient performance. For the reasons

that follow, we affirm.

                                      I.

       Defendant was indicted for the September 5, 2004 armed robbery of a

woman who was withdrawing money at an ATM. We do not need to relate the

details of the offenses or arrest for purposes of this opinion.




1
    Defendant's name is Spaggery F. Maurice. He is misnamed in the caption.
                                                                         A-0505-18T1
                                           2
      Defendant was convicted by a jury in 2006 of first-degree armed robbery,

N.J.S.A. 2C:15-1, second-degree possession of a firearm for an unlawful

purpose, N.J.S.A. 2C:39-4(a), third-degree unlawful possession of a firearm,

N.J.S.A. 2C:39-5(b), and third-degree hindering apprehension or prosecution,

N.J.S.A. 2C:29-3(b)(4). He was sentenced to an aggregate term of incarceration

of eighteen years subject to an eighty-five percent period of parole ineligibility

under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's

sentence was consecutive to a sentence he was serving in Essex County.

      Defendant filed an appeal in 2006. We affirmed his conviction and

sentence. See State v. Spaggery, No. A-6400-05 (App. Div. May 19, 2009)

(Spaggery I).    Among other issues, defendant raised the lack of effective

assistance by his trial counsel, alleging she "failed to file pretrial motions to

suppress evidence and, also failed to request a jury instruction on identification."

We indicated the claim should first be presented to the trial court as a PCR

application. The Supreme Court denied the petition for certification. State v.

Spaggery, 

200 N.J. 369

(2009).

      Defendant filed a pro se PCR petition in 2010 alleging his appellate

attorney in Spaggery I was ineffective by not raising arguments about his trial




                                                                            A-0505-18T1
                                         3
attorney's performance. Counsel for defendant also filed a brief for defendant

raising issues about trial and appellate counsel's performance.

      The PCR petition was denied on October 19, 2012. We affirmed this

denial. See State v. Spaggery, No. A-3307-12 (App. Div. Sept. 16, 2015)

(Spaggery PCR I). Relevant here, one of defendant's pro se claims in Spaggery

PCR I was that "he asked PCR counsel to raise that his trial counsel was

ineffective in the plea process, that PCR counsel advised against raising the

claim, and that defendant agreed not to raise it." In our opinion in Spaggery

PCR I, we concluded that:

            defendant's claim that trial counsel was ineffective in
            the plea process is rebutted by the record.

            Defendant admits he received and rejected a plea offer.
            The offer was to recommend defendant serve nine
            (apparently amended to eight) years in prison, with an
            [eighty-five percent] period of parole ineligibility,
            concurrently with a seven-year State prison sentence he
            was receiving in Essex County. The trial court urged
            defendant to accept such a low offer, warning that if he
            rejected the offer he was likely to be sentenced at the
            upper end of the range, and that the offer would be off
            the table on the date of trial. Nonetheless, defendant
            rejected the offer.

            On the first day of trial, trial counsel argued that
            defendant should still be able to accept the amended
            plea offer. Trial counsel stated that defendant turned
            down the State's offer in part because he hoped [a
            proposed witness] would be a defense witness.

                                                                       A-0505-18T1
                                       4
However, [the proposed witness] was not cooperative
with the defense; his statement to defense investigators
"did not assist us in our defense at all;" and ultimately
he was listed as a prosecution witness. Trial counsel
argued that the plea offer should be reopened because
she was unable to communicate [the proposed
witness's] unhelpfulness to defendant before the first
day of trial.

Trial counsel detailed how her efforts to contact
defendant earlier were thwarted because he was being
transferred back and forth between Essex County Jail,
Union County Jail, and the State Central Reception and
Assignment Facility in Trenton. She went to the jail to
speak with him on multiple occasions, but was turned
away because he had been transferred out or was still
being processed on his transfer back. She made efforts
to verify he was in a particular jail, and to mail him
information in both jails, but her efforts were thwarted
and her mail returned because he was incarcerated
under different names.

After a lengthy argument by trial counsel, the trial court
denied counsel's request to reopen the offer. The court
pointed out it was the first day of trial, the State had
prepared for trial and refused to reopen the offer,
defendant had had four months to accept the offer, and
he had rejected it knowing the consequences.
Defendant did not appeal that ruling. See R. 3:22–4(a).

Defendant now claims trial counsel was ineffective for
not communicating [the proposed witness's] refusal to
him sooner. However, defendant stated on the record
that "[i]t wasn't really [trial counsel's] fault because she
did attempt to come see me, she attempted to send me
documents," "but I was always being moved around
from facility to facility," and "I have a really unique
name" which the facilities misspelled and "put

                                                               A-0505-18T1
                             5
             backwards." Given trial counsel's uncontested efforts,
             defendant has not shown counsel's efforts "'fell below
             an objective standard of reasonableness,' "particularly
             as "'[j]udicial scrutiny of counsel's performance must
             be highly deferential.'" Marshall, 

supra, 148 N.J. at 256

             (quoting Strickland, 

supra, 466 U.S. at 689

, 104 S.Ct.
             at 

2064-65, 80 L. Ed. 2d at 694

).

             [Spaggery PCR I, slip op. at 20-23.]

      Defendant's petition for certification was denied. State v. Spaggery, 

224 N.J. 123

(2015).

      Defendant filed a second PCR petition on November 8, 2017. He alleged

for the first time that he obtained the transcript of the pre-trial conference, which

was conducted on October 31, 2005, and some of his school records—including

his individual education plan (IEP)—which explained he was a special needs

student.

      Defendant argued the second PCR was timely because he recently

received these materials. He contended the new transcript provided a factual

predicate for his ineffective assistance of counsel claim.

      Defendant certified that trial counsel explained he could reject the plea

offer, that counsel would file a motion to suppress evidence from the traffic stop

and submit an alibi notice. His mother paid the fee for the transcript. She also

provided the documents about defendant's special educational needs. Defendant


                                                                             A-0505-18T1
                                         6
argued his trial attorney failed to investigate potential witnesses for the defense

before the plea cutoff date. He claims he was misadvised by trial counsel that

he could accept the plea offer before trial if the investigation results were

negative. He claimed he did not have the necessary information before the plea

cut off. He claims he was prejudiced by not taking the plea.

      Defendant argued his PCR counsel was deficient by not investigating and

pursuing these issues in the first PCR. The court was never presented with his

school records or the pretrial records.

      Defendant's mother certified that she told defendant's trial attorney that

defendant was a special needs student, did not always make the "right" decisions

and that she needed to be involved in any decision-making. She said she was

not contacted to provide an alibi statement and was not advised of the plea offer

until afterwards.

      Counsel for defendant submitted a supplemental brief, arguing that his

trial "counsel had no communication with [defendant] from the pretrial

conference until the first day of trial." It was on the first day of trial, defendant

allegedly learned that "no defense had been prepared for him, and

. . . the plea cut-off rule would not be relaxed to permit him to accept he plea

previously offered." He alleges that his trial counsel misinformed him about the


                                                                             A-0505-18T1
                                          7
importance of the plea-cut off, believing that she could continue to file motions

and investigate after the pretrial conference. He claims he rejected a viable plea

deal because he believed work was being done on the case that might yield a

viable defense.   He complains that PCR counsel refused to advance these

arguments about trial counsel. Defendant requested an evidentiary hearing.

      The second PCR petition was dismissed on August 21, 2018. In its written

opinion, the court found the issue of trial counsel's competency was already

adjudicated in the Spaggery PCR I. It also found the second PCR was untimely,

having been filed more than four years after it was barred by the Court Rules.

The court found the pre-trial conference transcript for October 31, 2005 and

defendant's IEP could have been obtained by reasonable diligence. Defendant

knew there were transcripts because he previously filed a pro se motion for

transcripts. The court found no reason to relax these timeframes because "all

issues raised here were known at the time [defendant's] initial petition for post -

conviction relief was argued and decided."

      Defendant presents the following issues on appeal.

            POINT I

            IN THE INTEREST OF JUSTICE, PETITIONER'S
            PCR CLAIM IS NOT TIME BARRED UNDER R.
            3:22-12.


                                                                           A-0505-18T1
                                        8
           POINT II

           BECAUSE        DEFENDANT        RECEIVED
           INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL,
           HE REJECTED A FAVORABLE PLEA OFFER, AND
           THEREFORE, HE IS ENTITLED TO POST-
           CONVICTION     RELIEF,  INCLUDING     AN
           EVIDENTIARY HEARING.

                 (a) Trial counsel failed to file all necessary
                 pre-trial motions before the plea cut-off
                 period.

                 (b) Trial counsel failed to complete the
                 investigation before the plea cut-off
                 period.

                 (c) Trial counsel did not request approval
                 from the Criminal Presiding Judge.

                 (d) Trial counsel misunderstood the
                 importance of the plea cut-off period.

     We are not persuaded by these arguments and affirm.

                                      II.

     The PCR court properly denied defendant's second PCR because it was

untimely filed. Under Rule 3:22-4(b):

           A second or subsequent petition for post-conviction
           relief shall be dismissed unless:

           (1) it is timely under R. 3:22-12(a)(2); and

           (2) it alleges on its face either:


                                                                  A-0505-18T1
                                            9
                   (A) that the petition relies on a new rule of
                   constitutional law, made retroactive to
                   defendant's petition by the United States
                   Supreme Court or the Supreme Court of
                   New Jersey, that was unavailable during
                   the pendency of any prior proceedings; or

                   (B) that the factual predicate for the relief
                   sought could not have been discovered
                   earlier through the exercise of reasonable
                   diligence, and the facts underlying the
                   ground for relief, if proven and viewed in
                   light of the evidence as a whole, would
                   raise a reasonable probability that the relief
                   sought would be granted; or

                   (C) that the petition alleges a prima facie
                   case of ineffective assistance of counsel
                   that represented the defendant on the first
                   or subsequent application for post-
                   conviction relief.

      Thus, to be timely, the second PCR must satisfy Rule 3:22-12(a)(2) and it

must satisfy Rule 3:22-4(b)(2)(A), (B), or (C). Defendant's second PCR petition

fails on both prongs.

      Under Rule 3:22-12(a)(2), "no second or subsequent petition shall be filed

more than one year after the latest of" one of three dates. The first addresses the

date of a newly recognized constitutional right.         See R. 3:22-12(a)(2)(A)

(providing "the date on which the constitutional right asserted was initially

recognized by the United States Supreme Court or the Supreme Court of New


                                                                           A-0505-18T1
                                        10
Jersey, if that right has been newly recognized by either of those Courts and

made retroactive by either of those Courts to cases on collateral review"). This

is not involved here.

       The second is "the date on which the factual predicate for the relief sought

was discovered, if that factual predicate could not have been discovered earlier

through the exercise of reasonable diligence . . . ." R. 3:22-12(a)(2)(B). This

second date is not satisfied here because the pre-trial conference at the heart of

defendant's claim occurred on October 31, 2005. Defendant has raised issues

about the ineffective assistance of counsel since his first appeal. That he did not

have the transcript of the pre-trial conference does not mean he could not have

discovered or obtained it with reasonable diligence.

       The third is "the date of the denial of the first or subsequent application

for post-conviction relief where ineffective assistance of counsel that

represented the defendant on the first or subsequent application for

postconviction relief is being alleged."     R. 3:22-12(a)(2)(C).    In this case,

defendant's first PCR petition was denied on October 19, 2012, but his second

PCR petition was not filed until November 8, 2017, which was considerably

more than a year after the denial of his first PCR. This subsection also was not

met.


                                                                           A-0505-18T1
                                       11
      Therefore, defendant's second PCR petition is untimely because it does

not satisfy Rule 3:22-12(a)(2)(A), (B), or (C) and by not satisfying this, it is

barred and must be dismissed under Rule 3:22-4(b).

      There is no provision under Rule 3:22-4(b) to modify this time frames for

"excusable neglect". See State v. Jackson, 

454 N.J. Super. 284

, 293-94 (App.

Div. 2018) (providing the time bar under Rule 3:22-12(a)(2) cannot be "excused

in the same manner as the late filing of a first PCR petition"). A court cannot

review the merits of an untimely second PCR petition that does not satisfy the

Rules. State v. Brown, 

455 N.J. Super. 460

, 470 (App. Div. 2018). Additionally,

the time frames under Rule 3:22-12(a) cannot be relaxed pursuant to Rule 3:22-

12(b). There also is no ability to relax the timeframes under Rule 1:1-2(a). See

R. 1:3-4(c) (providing that neither the parties nor the court may enlarge the time

specified by Rule 3:22-12). There is no reason to consider enlarging the time.

These issues were known to defendant in his first PCR petition. Defendant was

told by the judge at the pre-trial conference that if he rejected the plea, it would

not be available later.

      Under Rule 3:22-5, "[a] prior adjudication upon the merits of any ground

for relief is conclusive whether made in the proceedings resulting in the

conviction or in any post-conviction proceeding brought pursuant to this rule or


                                                                            A-0505-18T1
                                        12
prior to the adoption thereof, or in any appeal taken from such proceedings."

Defendant argues that trial counsel provided ineffective counsel by not filing

pre-trial motions and by not completing the investigation prior to the pre -trial

conference. In Spaggery PCR I, we noted, however, that had a motion to

suppress the results of the motor vehicle stop been made, it would have failed.

We also noted there was no showing a motion for a mistrial would have been

granted based on one comment by an arresting officer which comment was

stricken and a curative instruction was given. We found the record did not

support the claim of ineffective assistance of counsel.

      Defendant failed to show prejudice as required for PCR relief.            The

standard for determining whether counsel's performance was ineffective for

purposes of the Sixth Amendment was formulated in Strickland v. Washington,

466 U.S. 668

(1984), and adopted by our Supreme Court in State v. Fritz, l05

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

defendant must meet the two-prong test of establishing both that: (l) counsel's

performance was deficient and he or she made errors that were so egregious that

counsel was not 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


                                                                            A-0505-18T1
                                        13
that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." 

Strickland, 466 U.S. at 687

, 694.

      Defendant's arguments here relate to the plea cut off time frame, yet, when

he testified at trial, he maintained he was innocent of the charges. In light of his

testimony that he was innocent, defendant cannot show that he was prejudiced

by the rejected plea offer. See State v. Taccetta, 

200 N.J. 183

, 195 (2009)

(providing defendant could not have entered a plea because he should not have

to commit perjury by giving a factual basis for a crime he claimed he did not

commit).

      We conclude that defendant's further arguments are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The PCR

petition was untimely filed and defendant showed no prejudice. Accordingly,

the PCR court was correct to dismiss defendant's second PCR petition.

      Affirmed.




                                                                            A-0505-18T1
                                        14

Add comment