New Jersey v. Morris

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0127-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

COREY MORRIS,

Defendant-Appellant.
________________________________

Submitted September 16, 2015 – Decided October 1, 2015

Before Judges Reisner and Leone.

On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. 03-11-1069.

Corey Morris, appellant pro se.

Angelo J. Onofri, Acting Mercer County
Prosecutor, attorney for respondent (Laura C.
Sunyak, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).

PER CURIAM

Defendant Corey Morris appeals from an August 5, 2013 order

denying his petition for post-conviction relief (PCR).1 Having

1
After a remand to the trial court for a hearing pursuant to
State v. Coon,
314 N.J. Super. 426, 440 (App. Div.), certif.
denied,
157 N.J. 543 (1998), defendant was permitted to
represent himself on this appeal.
reviewed the record in light of the applicable law, we affirm

substantially for the reasons stated by Judge Robert C.

Billmeier in his comprehensive written opinion issued with the

order.

The factual background is discussed at length in our prior

opinion addressing defendant's direct appeal. State v. Morris,

No. A-2623-05 (App. Div. Jan. 17, 2008), and in Judge

Billmeier's opinion. A brief summary will suffice here.

Defendant was indicted on multiple counts including three counts

of armed robbery, weapons offenses, and eluding the police. At

his first trial he was convicted of eluding, but the jury

deadlocked on all of the other charges. Defendant was not

acquitted on any counts, including the weapons charges. Prior

to the re-trial, defendant and the State reached a plea

agreement, pursuant to which defendant pled guilty to the three

armed robberies and received three sentences of twenty years

subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2. All of

those sentences were concurrent to each other and to the twenty-

year sentence imposed on the eluding conviction.

On defendant's direct appeal, he raised the following

issues through counsel:

2 A-0127-13T1
POINT I: THE TRIAL COURT'S DECISION TO
SHACKLE DEFENDANT IN FRONT OF THE JURY
ERODED THE PRESUMPTION OF INNOCENCE,
DEPRIVING HIM OF A FAIR TRIAL AND DUE
PROCESS OF LAW. (U.S. CONST. AMENDS. V, VI
& XIV; N.J. CONST. (1947), ART. I, PARA. 13.

POINT II: THE TRIAL COURT SHOULD HAVE
SUPPRESSED DEFENDANT'S STATEMENT MADE DURING
CUSTODIAL INTERROGATION. (U.S. CONST.
AMENDS. V, XIV; N.J. CONST. (1947), ART. I,
PARAS. 1, 13).

POINT III: DEFENDANT'S SENTENCE IS BOTH
ILLEGAL AND EXCESSIVE.

A. Introduction

B. The Extended Term On The Eluding Count
Should Be Vacated.

C. The Sentence On The Eluding Charge Must
Be Vacated In Light Of State v. Pierce, 188
N.J. 155 (2006).

D. The Sentence On The Robbery Counts Was
Tainted By Impermissible Factors And Must Be
Vacated.

E. Conclusion.

He raised the following multiple issues in a supplemental

pro se brief:

POINT I: THE DEFENDANT/APPELLANT'S JUNE 9,
2
003 STATEMENT MADE AT 5:22 PM DURING
CUSTODIAL INTERROGATION SHOULD HAVE BEEN
SUPPRESSED BY THE TRIAL COURT AFTER THE
PROPHYLACTIC SAFEGUARDS OF MIRANDA V.
ARIZONA,
384 U.S. 436 (1966), WERE VIOLATED
AT THE TRENTON POLICE DEPARTMENT AT 3:04
P.M. BY REPEATED EFFORTS OF DETECTIVE
ROLANDO RAMOS WHEN HE INTERROGATED APPELLANT
AFTER APPELLANT INVOKED HIS RIGHT TO CUT OFF
THE INTERROGATION BY REPEATED DENIALS TO THE

3 A-0127-13T1
ROBBERIES AND REFUSALS TO SPEAK VIOLATED THE
FIFTH AMENDMENT NOT TO BE A WITNESS AGAINST
HIMSELF AND FOURTEENTH AMENDMENT SUBSTANTIVE
DUE PROCESS TO BE FREE FROM COERCIVE
INTERROGATION. (U.S. CONST. AMENDS. V,
XIV; N.J. CONST. ART. I, PARAS. 1 § 8).

POINT II: THE DEFENDANT/APPELLANT'S MIRANDA
WAIVER AND JUNE 9, 2003, STATEMENT OBTAINED
DURING CUSTODIAL INTERROGATION BY DETECTIVE
ROLANDO [RAMOS] RESULTED FROM A COERCIVE
ATMOSPHERE AND SHOULD HAVE BEEN SUPPRESSED
BY THE TRIAL COURT UNDER THE TOTALITY OF THE
CIRCUMSTANCES AFTER APPELLANT SUFFERED HEAD
TRAUMA IN A CAR ACCIDENT DUE TO THE FACT
THAT APPELLANT WAS SLEEP DEPRIVED, DEPRIVED
OF FOOD, DEPRIVED OF HIS CIVILIAN CLOTHING
TO WEAR AND APPELLANT WAS DETAINED IN A CELL
BY HIS JAILERS IN UNFIT CONDITIONS DEPRIVED
APPELLANT OF HIS DUE PROCESS OF LAW. (U.S.
CONST. AMEND. XIV; N.J. CONST. (1947) ART.
I, PARA. 1).

POINT III: THE TRIAL COURT JUDGE SHOULD
HAVE GRANTED DEFENDANT/APPELLANT'S MOTION TO
RECUSE HIMSELF BECAUSE OF THE TRIAL COURT'S
APPEARANCE OF PRIOR BIAS AGAINST APPELLANT
LEAD TO FURTHER [UNETHICAL] AND ILLEGAL
JUDICIAL CONDUCT VIOLATED APPELLANT'S RIGHT
TO A FAIR TRIAL AND DUE PROCESS OF LAW.
(U.S. CONST. AMENDS. VI, XIV; N.J. CONST.
(1974) ART. I, PARAS. 1, 10).

POINT IV: THE TRIAL COURT'S DENIAL OF
DEFENDANT/APPELLANT'S MOTION WITHOUT HOLDING
A FARETTA V. CALIFORNIA,
95 S. Ct. 2525
(1975) HEARING FOR WAIVER OF COUNSEL TO
PROCEED PRO SE VIOLATED APPELLANT'S
CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION.
(U.S. CONST. AMENDS. XI, XIV; N.J. CONST.
(1947) ART. I, PARAS. 1, 10).

POINT V: THE TRIAL COURT'S DECISION TO
SHACKLE DEFENDANT/APPELLANT IN FRONT OF HIS
JURY WAS ARBITRARY AND CAPRICIOUS AND IT
EMASCULATED THE PRESUMPTION OF INNOCENCE,

4 A-0127-13T1
THEREBY DEPRIVING APPELLANT OF A FAIR TRIAL
AND DUE PROCESS OF LAW (U.S. CONST. AMENDS.
V, VI § XIV; N.J. CONST. (1947) ART. I,
PARA. 1, 8, 10).
POINT VI: THE STATE VIOLATED THE UNITED
STATES CONSTITUTION WHEN IT FAILED TO CHARGE
THE DEFENDANT/APPELLANT'S FACT OF HIS PRIOR
CONVICTIONS UNDER THE PERSISTENT OFFENDER
STATUTE,
N.J.S.A. 2C:44-3(a), WITHIN HIS
INDICTMENT ON COUNT THIRTEEN ELUDING
POLICE/OR SEPARATELY IN AN INFORMATION THEN
PROVE THE ELEMENTS TO A JURY BEYOND A
REASONABLE DOUBT, THUS, RENDERS THE EXTENDED
TERM SENTENCE ILLEGAL, IN VIOLATION OF THE
FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS
(U.S. CONST. AMENDS. V, VI, § XIV; N.J.
CONST. (1947) ART. I, PARAS. 1, 8, 10).

We rejected all of defendant's arguments, except one. We

remanded for re-sentencing on the eluding conviction, because

the State's motion for an extended term was filed untimely.2 We

considered and rejected on the merits defendant's argument that

the trial court should have granted his Miranda3 motion because

the police abused him and he was suffering from lack of sleep.

The trial judge had found defendant's testimony in that regard

to be unworthy of belief, and after reviewing the record, we

found no reason to disturb the judge's factual findings.

2
We also noted the judge's statement, at the plea hearing, that
the State agreed not to seek an extended term on the eluding
conviction. On remand, the trial judge re-sentenced defendant
to an ordinary term of ten years on the eluding conviction.
Defendant's later PCR petition was heard by Judge Billmeier, who
was not the trial judge.
3
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).

5 A-0127-13T1
Defendant subsequently filed a PCR petition raising

multiple issues, all of which Judge Billmeier found without

merit for reasons stated in his written opinion. On this

appeal, defendant repeats several of those contentions, in the

following points of argument, which we quote verbatim:

POINT I

THE PROCEDURAL BAR TO THE DEFENDANT'S MOTION
FOR POST-CONVICTION RELIEF SHOULD NOT BE
PROCEDURALLY BARRED BY RULE 3:22-4.

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I
PART OF THE NEW JERSEY CONSTITUTION VIOLATED
BY THE PCR COURT'S REFUSAL TO HOLD TO A
POST-CONVICTION RELIEF EVIDENTIARY HEARING
TO ADJUDICATE THE DEFENDANT'S CLAIM THAT HE
WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

(A) TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO ADVISE
THE DEFENDANT OF THE DEFENSE OF COLLATERAL
ESTOPPEL TO SUPPRESS OR OBJECT TO HIS GUILTY
PLEA STATEMENT THAT HE POSSESSED OR USED A
PUMP ACTION BB RIFLE TO COMMIT THREE ARMED
ROBBERY OFFENSES THAT WOULD NOT HAVE PLED
GUILTY, AND THAT HIS WAIVER OF COLLATERAL
ESTOPPEL DEFENSE CONSEQUENTLY WAS NOT
KNOWING AND VOLUNTARY.

(B) DEFENDANT MATERIALLY RELIED TO HIS
DETRIMENT UPON PLEA COUNSEL'S ERRONEOUS
ADVICE THAT HE WAS ENTITLED TO JAIL CREDIT.
BUT FOR PLEA COUNSEL'S ERRONEOUS ADVICE,
DEFENDANT WOULD NOT HAVE PLED GUILTY.

6 A-0127-13T1
DEFENDANT THAT HIS GAP-TIME CREDIT OF 714
DAYS COULD NOT BE USED TO REDUCE THE 85%
PERIOD OF PAROLE INEFFECTIVE MANDATED BY
NERA.

(D) TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO FILE A
MOTION CHALLENGING
N.J.S.A. 2B:12-21(B) IS
UNCONSTITUTIONAL UNDER THE FOURTH AMENDMENT
TO THE UNITED STATES CONSTITUTION BECAUSE
THE STATUTE CONFER AUTHORITY TO THE POLICE
TO ADMINISTER OATH FOR COMPLAINTS WHICH
SERVE AS A BASIS FOR A WARRANT, AND THUS
WOULD WARRANT DISMISSAL OF DEFENDANT'S
CRIMINAL COMPLAINT AS BEING CONSTITUTIONALLY
DEFECTIVE.

POINT III

TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO ARGUE
THAT FURTHER PROSECUTION OF DEFENDANT BY THE
STATE WAS PRECLUDED BY THE DOUBLE JEOPARDY
CLAUSE TO THE UNITED STATES CONSTITUTION,
U.S. CONST. AMEND. 5 AND THE CONSTITUTION OF
THE STATE OF NEW JERSEY, N.J. CONST. (1947)
ART. I, SEC. 10.

(A) TRIAL COUNSEL RENDERED INEFFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO ARGUE A
DECISION ENTERED AFTER THE TRIAL COURT'S
FINDING THAT DEFENDANT DID NOT HAVE ANY
WEAPON'S POSSESSION IS A VALID AND FINAL
JUDGMENT, AND THE STATE WAS BARRED FROM
RELITIGATING SAME UNDER THE DOCTRINE OF
COLLATERAL ESTOPPEL.

Having reviewed the record, we conclude that defendant's

arguments are without sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(2). However, we add the

following comments.

7 A-0127-13T1
In the context of a guilty plea, a defendant claiming

ineffective assistance of counsel must show that his attorney

misinformed him or otherwise rendered inadequate legal

assistance in the plea process, and that but for his attorney's

deficient performance, defendant would not have pled guilty but

instead "'would have insisted on going to trial.'" See State v.

Gaitan,
209 N.J. 339, 350-51 (2012) (quoting State v. Nuñez-

Valdéz,
200 N.J. 129, 139 (2009)). To satisfy the second prong,

defendant must convince the court that it would have been

rational to reject the proffered plea in favor of a trial. See

Padilla v. Kentucky,
559 U.S. 356, 372,
130 S. Ct. 1473, 1485,

176 L. Ed. 2d 284, 297 (2010).

Judged by those standards we find no merit in defendant's

PCR arguments concerning jail credits. At sentencing and again

at his resentencing, defendant received 135 days of jail credits

and 714 days of gap time credits. Among other things, defendant

asserts that he thought his sentence would only involve jail

credits, and he would not have pled guilty had he known that he

would receive a combination of jail credits, which would reduce

the NERA portion of his sentence, and gap time, which would only

reduce the remaining portion of the sentence after he served the

eighty-five percent required by NERA. See State v. Hernandez,

8 A-0127-13T1

208 N.J. 24, 36-40 (2011). Those contentions are unconvincing

for two reasons.

At the sentencing hearing on November 18, 2005, defendant

indicated his dissatisfaction with the plea agreement, which he

contended should have provided for concurrent ten-year terms

instead of twenty-year terms. The judge, who had presided over

the trial and the plea hearing, reminded defendant that the

judge had advised all counsel that he would reject a proposed

ten-year plea deal due to defendant's abysmal prior record of

violent crime. The judge also reminded defendant that, for the

eluding conviction, he faced an extended term which "alone would

bring 20 years." The judge indicated that he was willing to

sentence defendant to concurrent twenty-year terms for the three

armed robberies, as the State recommended, because he understood

that it would "eliminate any challenge to the eluding charge of

which he was convicted by the jury."

As the judge correctly noted, defendant was already facing

a substantial sentence for eluding. If convicted of the three

armed robberies, he could have received three consecutive

twenty-year NERA terms – sixty years - consecutive to the

sentence for eluding. It would not have been rational for

defendant to decline the plea deal and insist on going to trial,

thereby risking sixty years of additional imprisonment, solely

9 A-0127-13T1
due to the difference between receiving 714 days of gap time and

714 days of jail credits. See Padilla, supra,
559 U.S. at 372,

130 S. Ct. at 1485,
176 L. Ed. 2d at 297. Indeed, in his PCR

certification, he did not claim he would have gone to trial if

he knew that he would receive the 714 days as gap time credits.

Moreover, the record does not support defendant's claim

that he did not realize he would receive a combination of jail

credits and gap time. At the end of the sentencing hearing,

defendant asked "What about my gap time, jail credits, and all

that?" Clearly defendant, who had many prior convictions and

had served several prior prison terms, knew that he was going to

receive some combination of gap time and jail credits. At that

point, the judge stated that defendant would receive 135 days of

jail credit and 714 days of gap time. Defendant did not object

that he thought he was going to receive more jail credits. Nor

did defendant raise the issue at his resentencing hearing on

April 18, 2008.

Defendant's collateral estoppel argument is likewise

unpersuasive. The first jury's failure to return a verdict on

the weapons charges did not preclude the State from retrying

defendant on those charges. See State v. Cruz,
171 N.J. 419,

425-26 (2002). As a result, defendant's trial counsel was not

10 A-0127-13T1
ineffective for failing to advise defendant that a re-trial was

barred by collateral estoppel.

In summary, we find no basis to disturb the order on

appeal, and we affirm.

Affirmed.

11 A-0127-13T1

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