STATE OF NEW JERSEY v. MAURICE SPAGGERY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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
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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
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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
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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
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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
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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
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(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
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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
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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, l 05 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
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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.
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