STATE OF NEW JERSEY v. MAURICE A. HORNE (14-03-0466, MONMOUTH COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3155-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURICE A. HORNE, a/k/a
MAURICE HORNE,
Defendant-Appellant.
_________________________
Submitted September 13, 2022 – Decided September 23, 2022
Before Judges Gilson and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 14-03-
0466.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michael A. Priarone, Designated Counsel,
on the brief).
Lori Linskey, Acting Monmouth County Prosecutor,
attorney for respondent (Alecia Woodard, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Maurice Horne appeals from an order denying his petition for
post-conviction relief (PCR) after oral argument but without an evidentiary
hearing. Because defendant failed to establish a prima facie showing of
ineffective assistance of counsel, we affirm.
Following the robbery of an attendant at a gas station, a grand jury
returned an indictment charging defendant and his brother Duane Horne with
first-degree armed robbery, N.J.S.A. 2C:15-1. The grand jury also indicted
defendant for fourth-degree unlawful possession of an imitation firearm,
N.J.S.A. 2C:39-4(e). After a joint trial with his brother as co-defendant, a jury
found defendant guilty of both charges. The trial judge sentenced defendant to
twelve years in prison subject to periods of parole ineligibility and parole
supervision as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed, contending the trial judge erred in how he instructed
the jury on the lesser-included offense of theft, the verdict was against the
weight of the evidence, and the sentence was excessive. We affirmed
defendant's convictions and sentence. State v. Horne, No. A-3709-15 (App. Div.
Apr. 9, 2018). The Supreme Court denied defendant's petition for certification.
235 N.J. 339 (2018).
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Defendant, representing himself, submitted a petition seeking PCR. He
was assigned PCR counsel, who submitted additional papers on his behalf.
Defendant contended his trial counsel had been ineffective in that he failed to
(1) move to suppress evidence found in a vehicle; (2) move to sever his trial
from co-defendant's trial and transfer the trial "to veteran's court"; (3)
adequately investigate his case by questioning the victim before trial; (4) meet
and communicate sufficiently with defendant; and (5) provide the State with
"defendant's counter-offer to plead guilty for a reduced sentence." Defendant
also argued his sentence was illegally excessive and appellate counsel had
rendered ineffective assistance by failing to raise on appeal arguments defendant
was raising in his PCR petition.
The PCR court heard oral argument on the petition. Finding defendant
had failed to establish the two required prongs of Strickland v. Washington, 466
U.S. 668, 687 (1984), the court entered an order and opinion denying the
petition. The court held a motion to suppress evidence located during a
warranted search of a vehicle would not have been granted because, even
accepting defendant's allegation that the search-warrant affidavit contained
"falsehoods," other evidence, including a video of the robbery, the victim's 911
call and statement to police, and defendant's statement to police, confirmed the
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facts providing probable cause in the affidavit. The court also concluded a
motion to sever would not have been granted because defendant and his co-
defendant presented consistent, not antagonistic, defenses. The court found
defense counsel had presented to the State a counteroffer to plead guilty in
exchange for a reduced sentence recommendation, which the State rejected. The
court also found defendant had failed to show his two meetings with counsel
kept him from participating in a successful trial strategy, how additional
meetings would have changed his trial strategy or the ultimate outcome of the
trial, or how an interview with the victim would have disclosed information not
revealed in the victim's 911 call, statement to police, or trial testimony.
Rejecting defendant's claim of ineffective assistance on appeal, the court held
defendant had not demonstrated his appellate counsel failed to present a viable
argument. The court concluded defendant's excessive-sentence claim was
procedurally barred under Rule 3:22-5 because it already had been adjudicated
on the merits in defendant's direct appeal. Because defendant had not made a
prima facie showing of his ineffective-assistance claims, the court did not
conduct an evidentiary hearing.
Defendant now appeals the PCR court's order, describing his argument as:
POINT I – THE PCR COURT ERRED IN DENYING
DEFENDANT'S CLAIMS WITHOUT AN
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EVIDENTIARY HEARING AND THIS MATTER
MUST BE REMANDED FOR AN EVIDENTIARY
HEARING ON DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF.
Because defendant failed to establish a prima facie showing of ineffective
assistance of counsel, the PCR court did not have to conduct an evidentiary
hearing. Accordingly, we affirm.
We review the PCR court's legal and factual determinations de novo
because it rendered its decision without an evidentiary hearing. State v. Harris,
181 N.J. 391, 419 (2004); State v. Aburoumi, 464 N.J. Super. 326, 338-39 (App.
Div. 2020). As directed by our Supreme Court, we "view the facts in the light
most favorable to the defendant." State v. Jones, 219 N.J. 298, 311 (2014). We
review under an abuse-of-discretion standard the PCR court's decision to
proceed without an evidentiary hearing. State v. L.G.-M., 462 N.J. Super. 357,
365 (App. Div. 2020).
To establish a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"
and (2) "the deficient performance prejudiced the defense." Strickland, 466 U.S.
at 687 (quoting U.S. Const. amend. VI); State v. Fritz, 105 N.J. 42, 58 (1987)
(adopting the Strickland two-prong test in New Jersey); see also State v. Gideon,
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244 N.J. 538, 550-51 (2021) (describing the two required prongs under
Strickland). "Prejudice is not to be presumed . . . . The defendant must
'affirmatively prove prejudice.'" Gideon, 244 N.J. at 551 (quoting Strickland,
466 U.S. at 693). A failure to make an unsuccessful argument does not
constitute ineffective assistance of counsel. State v. Echols, 199 N.J. 344, 365
(2009). Bare assertions are "insufficient to support a prima facie case of
ineffectiveness." State v. Blake, 444 N.J. Super. 285, 299 (App. Div. 2016)
(quoting State v. Cummings, 321 N.J. Super. 154, 171 (App. Div. 1999)).
A petitioner for PCR is not automatically entitled to an evidentiary
hearing. State v. Porter, 216 N.J. 343, 355 (2013); see also L.G.-M., 462 N.J.
Super. at 364 ("[M]erely raising a claim for PCR does not entitle a defendant to
an evidentiary hearing"). A court should conduct an evidentiary hearing on a
PCR petition only if the petitioner establishes a prima facie case in support of
PCR, material issues of disputed fact cannot be resolved by reference to the
existing record, and an evidentiary hearing is necessary to resolve the claims for
relief. Porter, 216 N.J. at 354 (citing R. 3:22-10(b)); see also State v. Preciose,
129 N.J. 451, 462 (1992) (PCR court should grant an evidentiary hearing "if a
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defendant has presented a prima facie claim in support of post-conviction
relief"). Allegations that are "too vague, conclusory, or speculative" do not
merit an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158 (1997).
Defendant failed to meet that standard. Defendant's arguments were bare
assertions with no factual support. He contended trial counsel should have
moved to suppress evidence and sever the trial but failed to demonstrate that
those motions would have been successful. He did not establish how additional
meetings with counsel or an interview with the victim would have changed his
trial strategy or altered the ultimate outcome of the trial. His claim that trial
counsel failed to present a counteroffer in plea negotiations was not supported
by the record, and defendant did not demonstrate he had asked counsel to make
another counteroffer when the State rejected that initial counteroffer. He did
not identify viable claims his appellate counsel had failed to present. Echols,
199 N.J. at 365 (finding that failure to raise an issue on appeal was not a basis
to grant post-conviction relief because "the result would not have been
different"). Defendant's bare assertions were "insufficient to support a prima
facie case of ineffectiveness." Blake, 444 N.J. Super. at 299 (quoting
Cummings, 321 N.J. Super. at 171). His unsupported assertions and his
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excessive-sentence argument, which we already had rejected on direct appeal,
did not merit an evidentiary hearing.
Affirmed.
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