STATE OF NEW JERSEY v. DWAYNE JAMES SPURGEON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4368-05T44368-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DWAYNE JAMES SPURGEON,

Defendant-Appellant.

_________________________________________________

 

Submitted October 31, 2007 - Decided

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No. 92-09-1706.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Dwayne Spurgeon, appeals from the denial of his petition for post-conviction relief (PCR), initially filed almost ten years after his conviction and sentencing, and denied on the grounds that the petition was untimely, see Rule 3:22-12, and that defendant's arguments lacked merit.

On appeal, defendant raises the following issues:

POINT I

BECAUSE HIS TRIAL ATTORNEY MISINFORMED HIM ABOUT HIS SENTENCING EXPOSURE AFTER TRIAL, DEFENDANT WAS PREVENTED FROM MAKING A FAIR EVALUATION OF THE PLEA OFFER WHICH HE REJECTED. COUNSEL'S MISADVICE THUS CONSTITUTED REMEDIAL INEFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO STATE V. TACETTA.

POINT II

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO SECURE THE TESTIMONY OF AN EXPERT QUALIFIED TO TESTIFY REGARDING THE IMPACT OF DEFENDANT'S PSYCHIATRIC CONDITION ON THE SUBJECTIVE ELEMENTS OF PASSION/PROVOCATION MANSLAUGHTER. APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THIS ISSUE ON APPEAL.

POINT III

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO SUBMIT A COMPETENT PSYCHIATRIC REPORT REGARDING DEFENDANT'S MENTAL CONDITION IN MITIGATION OF SENTENCE.

POINT IV

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, WHO FAILED TO RAISE A CLEARLY MERITORIOUS ISSUE REGARDING THE EXCESSIVE NATURE OF THE SENTENCE IMPOSED.

POINT V

THE JUVENILE WAIVER STATUTE VIOLATES DEFENDANT'S DUE PROCESS RIGHTS BECAUSE IT ALLOWS WAIVER BASED UPON A JUDGE'S FACT FINDING ON LESS THAN PROOF BEYOND A REASONABLE DOUBT.

POINT VI

DEFENDANT'S PETITION IS NOT TIME-BARRED BECAUSE HE CAN ESTABLISH "EXCUSABLE NEGLECT" FOR THE DELAY IN FILING AND BECAUSE THE INTERESTS OF JUSTICE DEMAND RELAXATION OF THE RULE IN THIS CASE.

We affirm.

In 1992, defendant was indicted for the murder of Anita Hoynes on February 20, 1991, N.J.S.A. 2C:11-3a(2) (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count two); second-degree burglary, N.J.S.A. 2C:18-2 (count three); first-degree robbery, N.J.S.A. 2C:15-1 (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); and third-degree attempted unlawful use of a credit card, N.J.S.A. 2C:21-6(d) (count six). Trial before a jury occurred from May 17 to 24, 1993, and defendant was found guilty on all counts. A new trial motion was denied, and on July 12, 1993, the trial judge imposed a sentence of life imprisonment with thirty years of parole ineligibility on the conviction for murder and a further consecutive sentence of ten years with a five-year period of parole ineligibility for the second-degree burglary conviction. The convictions on the remaining counts were either merged or the sentences imposed were ordered to be served concurrently.

On appeal, we affirmed defendant's convictions. State v. Spurgeon, No. A-1670-93T4 (December 15, 1995). Notably, in his appeal, defendant raised, among others, the following argument:

POINT I

THE DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED:

A. Because The Defendant's Trial Attorney Rendered Ineffective Assistance of Counsel With The Result That The Defendant Failed To Establish A Diminished Capacity Defense (Not Raised at Trial Level).

B. Because The Defendant's Attorney Rendered Ineffective Assistance Of Counsel By Utilizing An Irrational Trial Strategy (Not Raised at Trial Level).

We addressed defendant's ineffective assistance of counsel arguments in our opinion, slip op. at 9-10, and rejected them.

On January 16, 2003, defendant filed a pro se petition for post-conviction relief. Following assignment of counsel, on January 13, 2006, PCR counsel filed a brief on defendant's behalf, which was later supplemented. The petition was denied on March 9, 2006, without a hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992) (requiring evidentiary hearings to resolve ineffective assistance of counsel claims if defendant has presented a prima facie claim in support of post-conviction relief and factual issues as to entitlement exist).

The record in this matter discloses that defendant was born to a teen-age, drug addicted mother who failed to adequately care for him. As a young child, defendant was befriended by Andrew and Anita Hoynes, who took defendant into their home, where defendant remained for approximately six years until he was twelve. Although defendant then returned to the custody of his maternal grandmother, he maintained close ties with his surrogate father, Andrew, until Andrew's death, and with his surrogate mother, Anita Hoynes.

On February 20, 1991, defendant had a verbal altercation with Anita, to whom he had entrusted $800, because she refused to return the money to him, rightly suspecting that it had been obtained through the sale of drugs. Following the argument, defendant left Anita's house, but later returned, breaking in through a basement window and renewing the argument that had commenced previously. Matters escalated, and after Anita had slapped him, defendant kicked and battered her to death with a board and with the iron that Anita was using at the time. Following Anita's death, defendant stuffed her in the trunk of her car, which he abandoned in Piscataway. Additionally, defendant stole Anita's purse and unsuccessfully attempted to use a credit card taken from it to purchase $800 in jewelry. Defendant admitted his crime to his girlfriend and another young woman and, following his apprehension, made additional incriminating statements to an examining nurse, a fellow inmate, his grandmother, and two other individuals.

Following his conviction, defendant sought a new trial and when that was unsuccessful, appealed in a timely fashion. Nonetheless, he failed to seek post-conviction relief for a period of close to ten years.

In the present appeal from the denial of his PCR petition, defendant seeks to avoid the bar of Rule 3:22-12, which requires that PCR petitions be filed within five years of conviction or sentence, by arguing either that his delay in filing was due to excusable neglect or that the interests of justice demand that the petition be heard. State v. Mitchell, 126 N.J. 565, 576-80 (1992) (discussing standards for relaxation of rule).

In support of his claim of excusable neglect, defendant proffers the report of a forensic psychiatrist, Paula Bortnichak, M.D., dated December 20, 2005, in which Dr. Bortnichak stated:

[Defendant] explained the dilemma that has led to his Petition for Post Conviction Relief, i.e. after years of flat depression and going the route of "just doing time," he reports that he could not fail to respond to the people who now give meaning to his life. Some of them, even acquaintances of Mrs. Hoynes, who were encouraging him to get back on his feet and try to make something of himself. He also, now, can see the continuity in his present position going back to the nurturing and education that Mrs. Hoynes had started for him. He has also appropriately mourned the deaths, albeit ambivalently, of his mother and his grandmother, and he realizes that he had a personal obligation to develop himself. Thus he is earnestly petitioning for Post Conviction Relief, and he has presented a plan for his future development, which is logical, appropriate, and profound given the gravity of his experience.

We find this evidence insufficient to establish excusable neglect, since it fails to establish that defendant was in any respect incapacitated from filing his PCR petition in a timely fashion, but merely documents that defendant has now made a good adjustment to prison life and seeks an opportunity for additional personal development. In this regard, we note that defendant possessed the capacity to timely file a motion for a new trial following his conviction, and then to institute an appeal from that conviction, raising therein ineffective assistance of counsel arguments. These facts substantially diminish the force of any argument, now, that defendant's depression following his conviction was sufficiently severe to preclude a similar action in a post-conviction relief context.

Moreover, in this case we find it likely that "[a]chieving 'justice' years after the fact," State v. Milne, 178 N.J. 486, 491 (2004), as defendant views it, through a retrial occurring so long after the murder occurred may not be a "plausibly attainable goal." Ibid. As the State notes, at least four of the twenty-four witnesses at the initial trial have now retired from the Prosecutor's Office, and the County Medical Examiner is deceased. Additionally, defendant's grandmother, who appears to have participated to some extent in the development of defense strategy is dead. It is likely that other witnesses are either unavailable, or that their memories have dimmed in the intervening years.

We likewise reject defendant's argument that the interests of justice require that his petition be heard, agreeing with the PCR judge that there is no merit to defendant's substantive arguments under standards established by Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2051, 2068, 80 L. Ed. 2d 674, 698 (1984), as adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). That defendant committed the murder is, in the circumstances, undeniable. Defendant nonetheless seeks to avoid the effects of his murder conviction by claiming that he was inadequately informed of the sentencing options open to the trial judge upon conviction, and as a result, he declined a favorable plea offer of thirty years in custody with a thirty-year parole disqualification. See State v. Taccetta, 351 N.J. Super. 196, 200-01 (App. Div.), certif. denied, 174 N.J. 544 (2002). However, the record establishes that, in discussing the plea offer, the trial judge informed defendant that if he were convicted of all charges, his resulting sentence would be greater than the thirty-year period that was offered. Thus defendant's argument lacks factual support.

Defendant also claims that counsel was ineffective in failing to properly advance a passion-provocation manslaughter defense on his behalf, and instead retaining an examining psychologist whose report was found to be inadequate to establish that defense. However, defendant fails to consider that he was also convicted of felony murder, N.J.S.A. 2C:11-3a(3), a strict liability crime as to which passion/provocation is not a defense. State v. Feaster, 156 N.J. 1, 37-38 (1998). Thus, defendant cannot demonstrate that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Additionally, defendant argues that counsel was ineffective in failing to present adequate expert testimony in mitigation of sentence. However, the mitigating aspects of defendant's unfortunate life history, discussed at length by Dr. Bortnichak in her report in support of post-conviction relief, were considered by the judge at sentencing as the result of her review of the extensive report of Dr. Marty Beyer. Additionally, the judge had available to her the report of Certified Drug Counselor, John Kelley, who set forth defendant's history of alcohol and drug abuse. Defendant does not successfully demonstrate how another expert could have more cogently presented facts in mitigation of sentence, or suggest grounds for concluding that some different appeal would have favorably influenced the judge in her sentencing decisions, which we find to have been well within her discretion to make, and not excessive, as defendant claims. State v. Pierce, 188 N.J. 155, 169 (2006); State v. Dalziel, 182 N.J. 494, 504-05 (2005); State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

Finally, defendant argues that the juvenile waiver statute violates his due process rights because it allows waiver based upon a judge's fact-finding under a preponderance of the evidence standard, in violation of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2363-64, 147 L. Ed. 2d 435, 455 (2000). However, virtually all courts to have considered the issue have found Apprendi to be inapplicable in this context. See State v. Kalmakoff, 122 P.3d 224, 226-27 & n. 26, 29 (Alaska Ct. App. 2005), cert. denied, sub nom, Kalmakoff v. Alaska, ___ U.S. ___, 127 S. Ct. 404, 166 L. Ed. 2d 287 (2006) (citing cases); People v. Beltran, 765 N.E.2d 1071, 1076 (Ill. App.), appeal denied, 775 N.E.2d 4 (2002). In any event, defendant's conviction preceded Apprendi by seven years. That decision has not been retroactively applied to cases such as this. State v. Franklin, 184 N.J. 516, 540 (2005).

Our review of defendant's arguments thus satisfies us that the interests of justice do not require a further examination of his untimely claim of entitlement to post-conviction relief. The requisite "exceptional circumstances," Mitchell, supra, 126 N.J. at 580, have not been demonstrated, and no injustice has been shown to exist. Id. at 582.

Affirmed.

The Rule provides:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

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A-4368-05T4

May 13, 2008