STATE OF NEW JERSEY VS. SAMMY MOORE (94-06-0636, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3682-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAMMY MOORE,
Defendant-Appellant.
_____________________________
Submitted August 15, 2017 – Decided August 28, 2017
Before Judges Manahan and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 94-
06-0636.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Stephen William
Bondi, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief; Izabella M. Wozniak, Special Deputy
Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Sammy Moore appeals from an August 21, 2015 order
denying his second petition for post-conviction relief (PCR).1 The
PCR court held that defendant's second petition was untimely under
Rule 3:22-12(a)(2). We affirm.
I.
In 1994, a jury convicted defendant of first-degree murder,
N.J.S.A. 2C:11-3(a)(1), first-degree attempted murder, N.J.S.A.
2C:11-3(a)(1) and N.J.S.A. 2C:5-1, two counts of first-degree
robbery, N.J.S.A. 2C:15-1, and five related offenses. Defendant
was sentenced to an aggregate term of life in prison with forty
years of parole ineligibility.
On direct appeal, following a remand for an evidentiary
hearing, we affirmed defendant's convictions with the exception
of one robbery conviction, which we reversed. State v. Moore,
Docket No. A-4956-94 (App. Div. April 18, 1997). The Supreme
Court denied certification. State v. Moore, 152 N.J. 11 (1997).
The facts underlying defendant's convictions were set forth
in detail in this court's 1997 unpublished opinion and need not
be repeated. In summary, the evidence at trial established that
defendant, together with four companions, went to Plainfield with
1
The order was dated August 21, 2015, and filed on August 24,
2015.
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a plan to commit armed robbery. While in Plainfield, defendant
shot and killed one victim, M.B., and shot, but did not kill, a
second victim, K.S.2 Defendant gave statements admitting to the
murder and shooting. Defendant was also found to be in possession
of the murder victim's car.
In 1998, defendant filed his first petition for PCR. He
contended that his trial counsel had been ineffective for failing
to request a specific instruction on intent, failing to challenge
the jury array, failing to challenge one of the robbery charges,
failing to request that the verdict be set aside pursuant to Rule
3:18-2, and failing to adequately investigate the facts and present
a meaningful defense. Defendant also argued that his appellate
counsel on his direct appeal had been ineffective in failing to
raise the jury array issue.
Defendant's first PCR petition was denied in 2000 by the
trial court, and we affirmed that denial in 2002. State v. Moore,
Docket No. A-1743-00 (App. Div. October 24, 2002). The Supreme
Court denied certification. State v. Moore, 179 N.J. 371 (2004).
On June 25, 2015, defendant filed his second petition for
PCR.3 In that petition, defendant claimed that his trial counsel
2
We use initials to protect the privacy interest of the victims.
3
In February 2015, defendant filed a motion for a new trial. He
was assigned counsel and, after conferring with counsel, defendant
3 A-3682-15T1
had been ineffective in failing to object to a photograph shown
to K.S., the victim who was shot but did not die. Defendant
contended that the prosecutor misled the jury into believing that
the photograph depicted defendant, when the photograph actually
depicted a co-defendant. Thus, defendant argued that his trial
counsel was ineffective in failing to object to the use of the
photograph. Indeed, defendant contended that his trial counsel
believed that the photograph was a photograph of him.
The trial court denied defendant's second PCR petition
without a hearing by issuing an order stating "that the [second]
petition for post-conviction relief is hereby denied for
untimeliness pursuant to [Rule] 3:22-12(a)(2)."
Defendant now appeals the order denying his second petition
for PCR. On appeal, defendant was assigned counsel, who presents
two arguments for our consideration:
POINT I – THE ORDER SUMMARILY DENYING
DEFENDANT'S SECOND PETITION FOR POST-
CONVICTION RELIEF SHOULD BE REVERSED AND THE
MATTER REMANDED TO THE PCR COURT TO MAKE
SPECIFIC FINDINGS EXPLAINING WHY THE
REMEDIATION OF DEFENDANT'S "FUNCTIONAL
ILLITERACY" WAS NOT A TIMELY "FACTUAL
PREDICATE" FOR A SECOND PETITION AND WAS NOT
"GOOD CAUSE" TO ASSIGN COUNSEL TO REPRESENT
DEFENDANT
withdrew his motion for a new trial and, instead, filed his second
PCR petition.
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POINT II – THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED AND THE MATTER
REMANDED FOR AN EVIDENTIARY HEARING BECAUSE
TRIAL COUNSEL'S BELIEF THAT DEFENDANT WAS THE
PERSON WHO WAS DEPICTED IN PHOTOGRAPH S-18 WAS
PRIMA FACIE PROOF OF INEFFECTIVE ASSISTANCE
OF COUNSEL
Defendant also filed a pro se brief, presenting the following
two additional arguments for our consideration:
POINT ONE
THE ORDER DENYING DEFENDANT'S SECOND PCR
PETITION WITHOUT ADDRESSING HIS CLAIMS OF
FUNDAMENTAL INJUSTICE ARTICULATED IN HIS
CERTIFICATION IN SUPPORT OF THE PCR PETITION
OR PERMITTING DEFENDANT AN OPPORTUNITY TO
BRIEF HIS ISSUES AND THE EXCEPTIONS TO ANY
PROCEDURAL BARS AMOUNTED TO AN ABUSE OF
DISCRETION THEREFORE THE MATTER SHOULD BE
REMANDED []
POINT TWO
DEFENDANT WAS SUBJECTED TO CONSTRUCTIVE DENIAL
OF PCR COUNSEL WHEN COUNSEL FAILED TO RAISE
THE CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL
AND APPELLATE COUNSEL FOR THEIR FAILURE TO
RAISE PROSECUTORIAL MISCONDUCT WHEN THE
STATE'S ATTORNEY MISREPRESENTED THE PHOTO THAT
THE VICTIM, [K.S.], IDENTIFIED AS THE SHOOTER
[]
II.
Petitions for PCR are governed by time limitations, which are
set forth in Rule 3:22-12. The first petition for PCR generally
must be filed within five years after the date of the entry of the
judgment of conviction. R. 3:22-12(a)(1). To warrant
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consideration of a first petition after the five years, defendant
must show both excusable neglect and "that there is a reasonable
probability that if the defendant's factual assertions were found
to be true enforcement of the time bar would result in a
fundamental injustice." Ibid.A second or subsequent petition for PCR must be filed within
one year after the latest of:
(A) the date on which the constitutional
right asserted was initially recognized by the
United States Supreme Court or the Supreme
Court of New 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; or
(B) 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; or
(C) 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 post-conviction
relief is being alleged.
[R. 3:22-12(a)(2).]
Here, defendant is seeking to appeal the denial of his second
PCR petition. Consequently, Rule 3:22-12(a)(2) governs. Under
Rule 3:22-4(b),
[a] second or subsequent petition for post-
conviction relief shall be dismissed unless:
6 A-3682-15T1
(1) it is timely under [Rule] 3:22-
12(a)(2); and
(2) it alleges on its face either:
(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.
Defendant, here, is not contending that there is a new rule
of constitutional law. Instead, he contends that he could not
have discovered his trial counsel's alleged ineffective assistance
as it related to the photograph because he was "functionally
illiterate." In support of that argument, defendant filed a
certification contending that he had learning deficiencies.
Defendant went on to explain that it was only in 1999 that he
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acquired a GED certificate.4 Defendant also contends that it was
not until 2013, when he began to take college-level courses, that
he came to realize that his prior reliance on trial counsel's
presumed competence was mistaken. Thus, defendant argues that his
second PCR petition was timely and the trial court should have
considered it on its merits.
Having considered the arguments presented by defendant's
assigned counsel, as well as his pro se arguments, we reject
defendant's contentions and affirm the denial of his second
petition for PCR for two related reasons.
First, defendant's second PCR petition failed to comply with
the time restrictions set forth in Rule 3:22-12(a)(2). In his
certification in support of the second petition, defendant claims
that he was "functionally illiterate" and that illiteracy
prevented him from discovering trial counsel's ineffective
assistance concerning the photograph. In the same certification,
however, defendant acknowledged that he received his GED in 1999
and that he took college-level courses in 2013 that gave him the
analytical ability to recognize that his trial counsel had been
ineffective. Thus, at the latest, defendant was literate and
4
The GED is a nationally recognized standardized test that allows
the test-takers to receive a certification equivalent of a high
school diploma.
8 A-3682-15T1
recognized his trial counsel's alleged ineffectiveness in 2013.
Defendant, however, waited more than one year after 2013 to file
his second petition for PCR in 2015. Thus, the petition is time-
barred. See R. 3:22-12(a)(2); see also State v. Brewster, 429
N.J. Super. 387, 398 (App Div. 2013). Moreover, even if this was
a first PCR petition, there is nothing in the record that would
support "exceptional circumstances" warranting an extension of the
time limitations. See State v. Goodwin, 173 N.J. 583, 594 (2002).
Second, defendant has failed to allege facts, which if proven
and viewed in the light of the evidence as a whole, would raise a
reasonable probability that the relief sought would be granted.
R. 3:22-4(b). In affirming defendant's convictions on his direct
appeal, we reviewed the detailed evidence that was presented
against defendant. That evidence included defendant's own
admissions, testimony from various witnesses who identified
defendant near the scene of the crime, and that defendant was in
possession of the murder victim's car. Even if trial counsel had
challenged the use of the photograph, defendant has not presented
a prima facie showing that he was prejudiced by such alleged
ineffective assistance. See Strickland v. Washington, 466 U.S.
668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984);
State v. Fritz, 105 N.J. 42, 60-61 (1987) (requiring defendant to
establish that "there is a reasonable probability that, but for
9 A-3682-15T1
counsel's unprofessional errors, the result of the proceeding
would have been different.").
Indeed, the State argues that defendant incorrectly
characterized the use of the photograph during trial and that
there was no ineffective assistance of counsel. During trial,
victim K.S. did not identify defendant or co-defendant based on
the photograph that was provided to him by the State. Instead,
K.S. told the jury that he was "not positively sure" that the
photograph depicted someone who shot him and he did not get a
clear look at the shooter's face. As such, K.S.'s testimony could
not have misled the jury into believing that the photograph
depicted defendant.
We also reject defendant's argument that the matter should
be reversed because the trial court summarily denied defendant's
second petition without sufficient explanation. The trial court
did not hold a hearing nor did the court explain the reasons for
its order. We note that that is not the best practice. See R.
1:7-4(a) (stating that the trial court "shall, by an opinion or
memorandum decision, either written or oral, find the facts and
state its conclusions of law thereon in all actions tried without
a jury, on every motion decided by a written order that is
appealable as of right, and also as required by [Rule] 3:29.").
Nevertheless, the record in this case allows us to review the
10 A-3682-15T1
facts, which established that defendant failed to comply with the
time constraint set forth in Rule 3:22-12(a)(2). Accordingly,
there is no basis to remand this matter for further review or a
hearing.
Finally, defendant's contentions that his PCR counsel was
ineffective lack merit. Defendant asserts only conclusory
contentions that do not establish a prima facie showing of
ineffective assistance by PCR counsel. State v. Marshall, 148
N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L.
Ed. 2d 88 (1997); see also State v. Cummings, 321 N.J. Super. 154,
170 (App. Div.), certif. denied, 162 N.J. 199 (1999) ("[I]n order
to establish a prima facie claim, a petitioner must do more than
make bald assertions that he was denied the effective assistance
of counsel. He must allege facts sufficient to demonstrate
counsel's alleged substandard performance.").
Affirmed.
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