STATE OF NEW JERSEY VS. COREY MORRIS (03-11-1069, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1514-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COREY MORRIS,

Defendant-Appellant.

_______________________

Submitted October 7, 2020 – Decided July 27, 2021

Before Judges Fuentes and Firko.

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

Joseph E. Krakora, Public Defender, attorney for
appellant (Kisha M. Hebbon, Designated Counsel, on
the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Laura Sunyak, Assistant Prosecutor, of
counsel and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant Corey Morris appeals from the order of the Criminal Part

denying his second post-conviction relief (PCR) petition. We affirm.

On November 16, 2003, a Mercer County Grand Jury returned Indictment

Number 03-11-1069, charging defendant with three counts of first degree

robbery, N.J.S.A. 2C:15-1 (Counts I, III, and V); four counts of second degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Counts

II, IV, VI, and VII); second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1)

(Count VIII); second degree aggravated arson, N.J.S.A. 2C:17-1(a) (Count IX);

third degree possession of a destructive device, N.J.S.A. 2C:39-3(a) (Count X);

third degree theft by unlawful taking, N.J.S.A. 2C:20-3 (Count XI); third degree

criminal mischief, N.J.S.A. 2C:17-3(a) (Count XII); second degree eluding,

N.J.S.A. 2C:29-2(b) (Count XIII); fourth degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(d) (Count XIV); third degree resisting arrest,

N.J.S.A. 2C:29-2 (Count XV); and fourth degree hindering apprehension,

N.J.S.A. 2C:29-3(b) (Count XVI).

On May 5, 2005, the State dismissed Counts II, IV, VI, XII, XIV, and

XVI. Defendant was thereafter tried before a jury on the remaining charges over

four nonsequential days. The jury found defendant guilty of second degree

2 A-1514-18
eluding, but was unable to reach a unanimous verdict on the remaining counts.

On September 20, 2005, defendant negotiated an agreement with the State

through which he pled guilty to three counts of first degree robbery. In

exchange, the State agreed to recommend that the court sentence defendant to

three concurrent terms of twenty years imprisonment, subject to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently to the sentence

imposed on the eluding conviction, but consecutive to an unrelated term of

imprisonment defendant was serving at the time.

On November 18, 2005, the trial judge granted the State's motion to

impose a discretionary extended term 1 on the second degree eluding conviction

and sentenced defendant to twenty years imprisonment, with an eighty-five

percent period of parole ineligibility and three years parole supervision as

mandated by NERA. Consistent with plea agreement, the court also sentenced

defendant to three concurrent terms of twenty years on the first degree robberies.

On direct appeal, this court affirmed defendant's second degree eluding

conviction, but vacated the trial court's order granting the State's motion to

1
An ordinary term of imprisonment for a second degree offense is between five
and ten years. N.J.S.A. 2C:43-6(a)(2). However, pursuant to Rule 3:21-4(e),
the prosecutor may request the sentencing judge impose a discretionary term
under N.J.S.A. 2C:44-3.

3 A-1514-18
impose an extended term. The prosecutor was required to file a motion seeking

the imposition of an extended term within fourteen days of defendant's

conviction. R. 3:21-4(e). Although the Rule authorizes the sentencing court to

extend the time for filing the motion "for good cause shown," this court found

"the State made no showing of good cause for the delay" and remanded the case

"for the limited purpose of re-sentencing defendant to an ordinary term" on the

conviction for second degree eluding. State v. Morris, A-2623-05, (App. Div.

January 17, 2008), slip op. at 17-18., certif. denied, 195 N.J. 421 (2008). On

April 18, 2008, the court resentenced defendant on the conviction for second

degree eluding to a maximum ordinary term of ten years imprisonment.

Defendant filed his first PCR petition on November 1, 2010. In an order

dated August 5, 2013, the Criminal Part denied defendant's petition. Defendant

appealed the denial to this court. After reviewing the underlying basis of

defendant's claims in support of PCR, this court held the arguments raised by

defendant lacked sufficient merit to warrant discussion in a written opinion,

Rule 2:11-3(e)(2), and affirmed. State v. Morris, A-0127-13, (App. Div.

October 1, 2015), slip op. at 7-8, certif. denied, 228 N.J. 44 (2016).

Defendant filed this second PCR petition on September 21, 2016. The

same judge who denied defendant's first PCR petition heard argument from

4 A-1514-18
counsel on the second petition on June 22, 2018. As framed by the judge,

defendant's second PCR petition was predicated on the following contentions:

(1) ineffective assistance from trial counsel, appellate counsel, and from the

attorney who represented him in his first PCR petition; and (2) the State's

violation of his rights to due process under Brady 2 by failing to turn over in

discovery a "Miranda 3 Rights Form and an arrest/intake photograph that would

have changed the outcome of [p]etitioner's motion to suppress, resulting in

suppression of his inculpatory statement."

After considering the briefs submitted and the arguments of counsel, the

judge denied defendant's second PCR petition in an order dated on August 23,

2018. The judge explained the basis for his decision in a twenty-nine-page

memorandum of opinion. The judge found defendant had not presented

sufficient evidence to establish a prima facie case of ineffective assistance of

counsel under the two-prong standard established by the United States Supreme

Court in Strickland v. Washington, 466 U.S. 668 (1984), and subsequently

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In this

2
Brady v. Maryland, 373 U.S. 83 (1963).
3
Miranda v. Arizona, 384 U.S. 436 (1966).

5 A-1514-18
light, defendant was not entitled to an evidentiary hearing under Rule 3:22-

10(b).

The judge also noted "that many of [p]etitioner's arguments are

procedurally barred because they were not raised on direct appeal." Both the

PCR judge and the State cited Rule 3:22-4(a), which bars a defendant from

raising legal issues in a PCR petition that could have been raised on direct

appeal. The judge ultimately denied defendant's second PCR petition based on

the following findings:

[A]ll of [p]etitioner's claims are found to be either
procedurally barred or without merit. A review of the
record shows that [p]etitioner has failed to demonstrate
ineffective assistance of his PCR counsel pursuant to
[Rule] 3:22-6(d). Also, the majority of [p]etitioner's
arguments could have been raised in prior proceedings
and are not subject to any exceptions, and thus are
barred by [Rule] 3:22-4(a). Finally, [p]etitioner has not
shown that the State committed a Brady violation by
failing to produce a Rights Form that would have
changed the result of [p]etitioner's suppression hearing.

Against this legal and factual backdrop, defendant raises the following

arguments in this appeal:

POINT I

THE TRIAL COURT ERRED IN FINDING THAT
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WAS PROCEDURALLY
BARRED BECAUSE THE ISSUES RAISED IN THE

6 A-1514-18
PETITION COULD NOT HAVE BEEN RAISED ON
DIRECT APPEAL.

POINT II

THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO
DETERMINE THE MERITS OF HIS CONTENTION
THAT HE WAS DENIED THE RIGHT TO THE
EFFECTIVE ASSISTANCE OF TRIAL AND
APPELLATE COUNSEL.

A. The Prevailing Legal Principles
Regarding Claims Of Ineffective
Assistance Of Counsel, Evidentiary
Hearings And Petitions For Post-
Conviction Relief.

B. Trial Counsel Rendered Ineffective
Legal Representation By Virtue Of His
Failure To Move To Dismiss The Three
First Degree Robbery Counts Prior To The
Commencement Of The Re-Trial Or,
Alternatively, To Object To The Entry Of
The Guilty Plea To Those Counts Since
The State Previously Dismissed The
Predicate Offenses Of Unlawful
Possession Of A Weapon And Possession
Of A Weapon For An Unlawful Purpose.

C. Trial Counsel Rendered Ineffective
Legal Representation By Virtue Of His
Failure To Re-File Another Motion To
Suppress After Receipt Of Newly
Discovered Evidence, Namely,
Defendant's Arrest/Intake Photograph.

7 A-1514-18
 D. Trial Counsel Rendered Ineffective
Legal Representation By Virtue Of His
Failure To Object To The Trial Court's
Improper Participation In The Plea
Negotiations.

E. Defendant's Appellate Counsel
Rendered Ineffective Legal Representation
By Virtue Of His Failure To Argue That
Trial Counsel Was Ineffective For Not
Moving To Dismiss The Robbery Charges
And To Raise The Issue Of The Trial Court
Improperly Participating In Plea
Negotiations.

F. Defendant Is Entitled To A Remand
To The Trial Court To Afford Him An
Evidentiary Hearing To Determine The
Merits Of His Contention That he Was
Denied The Effective Assistance Of Trial
And Appellate Counsel.

Defendant also filed a pro se supplemental brief that raises the following

arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO
DETERMINE THE MERITS OF HIS CONTENTION
THAT THE STATE WITHHELD EXCULPATORY
EVIDENCE IN VIOLATION OF BRADY V.
MARYLAND, 373 U.S. 83 (1963).

8 A-1514-18
 A. THE DEFENDANT'S CONVICTION
FOR THE FIRST DEGREE ARMED
ROBBERY COUNTS, [SIC] COUNTS I,
III, AND V, MUST BE REVERSED
BECAUSE THE STATE COMMITTED A
BRADY VIOLATION BY FAILING TO
TURN OVER THE DEFENDANT'S
MIRANDA RIGHTS FORM, DATED
JUNE 9, 2003, TO THE DEFENSE
WHICH SAID DOCUENT WOULD
HAVE CHANGED THE OUTCOME OF
HIS MOTION TO SUPPRESS
RESULTING IN A SUPRESSION OF HIS
STATEMENT.

POINT II

THE PROCEDURAL BAR UNDER R. 3:22-5 DOES
NOT APPLY TO THE DEFENDANT'S PETITION
FOR A SECOND POST-CONVICTION RELIEF
UNDER SUB-POINTS B, C, D, E, F, G, H, I, J, AND
K.

POINT III

THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO
DETERMINE THE MERITS OF HIS CONTENTION
THAT HE WAS DENIED THE RIGHT TO THE
EFFECTIVE ASSISTANCE OF TRIAL, APPELLANT
[SIC] AND PCR COUNSEL.

A. THE PREVAILING LEGAL
PRINCIPLES REGARDING CLAIMS OF
INEFFECTIVE ASSISTANCE OF
COUNSEL, EVIDENTIARY HEARING

9 A-1514-18
AND PETITION FOR POST-
CONVICTION RELIEF.

B. TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO
ARGUE SUBSEQUENT PROSECUTION
ON COUNTS I, III AND V OF THE
INDICTMENT FOR ARMED ROBBERY
WAS PRECLUDED BY THE SAME
EVIDENCE TEST.

C. TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO
ARGUE SUBSEQUENT PROSECUTION
ON COUNTS I, III, AND V OF THE
INDICTMENT FOR ARMED ROBBERY
WAS PRECLUDED BY THE SAME
ELEMENTS TEST.

D. FIRST PCR COUNSEL WAS
INEFFECTIVE BECAUSE COUNSEL
FAILED TO ARGUE TRIAL COUNSEL
AND APPELLATE COUNSEL WAS
INEFFECTIVE FOR NOT ARGUING
FOR A DISMISSAL OF THE ROBBERY
CHARGES UNDER THE SAME
ELEMENTS TEST AND SAME
EVIDENCE TEST.

E. DIRECT APPELLATE COUNSEL
WAS INEFFECTIVE BECAUSE
COUNSEL FAILED TO ARGUE IN THE
DIRECT APPEAL TRIAL COUNSEL
WAS INEFFECTIE FOR NOT MOVING
TO DISMISS THE ROBBERY CHARGES
UNDER THE SAME ELEMENTS TEST
AND SAME EVIDENCE TEST.

10 A-1514-18
F. TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO FILE
A MOTION TO DISMISS THE THREE
FIRST DEGREE ROBBERY COUNTS I,
III, AND V PRIOR TO THE
COMMENCEMENT OF THE RE-TRIAL
OR ALTERNATIVELY TO OBJECT TO
THE ENTRY OF THE GUILTY PLEA TO
THOSE COUNTS SINCE THE STATE
PREVIOUSLY DISMISSED THE
PREDICATE OFFENSES OF
UNLAWFUL POSSESSION OF A
WEAPON AND POSSESSION OF A
WEAPON FOR AN UNLAWFUL
PURPOSE.

G. APPELLATE COUNSEL WAS
INEFFECTIVE BECAUSE COUNSEL
FAILED TO ARGUE IN THE DIRECT
APPEAL TRIAL COUNSEL AS
INEFFECTIVE FOR FAILING TO FILE
A MOTION TO DISMISS THE THREE
FIRST DEGREE ROBBERY COUNTS I,
III AND V PRIOR TO THE
COMMENCEMENT OF THE RE-TRIAL
OR ALTERNATIVELY TO OBJECT TO
THE ENTRY OF THE GUILTY PLEA TO
THOSE COUNTS SINCE THE STATE
PREVIOUSLY DISMISSED THE
PREDICATE OFFENSES OF
UNLAWFUL POSSESSION OF A
WEAPON AND POSSESSION OF A
WEAPON FOR AN UNLAWFUL
PURPOSE.

H. FIRST PCR COUNSEL WAS
INEFFECTIVE FOR NOT RAISING
TRIAL COUNSEL'S AND APPELLATE

11 A-1514-18
COUNSEL'S INEFFECTIVE
ASSISTANCE OF COUNSEL
REGARDING A MOTION TO DISMISS
THE THREE FIRST DEGREE ROBBERY
COUNTS I, III, AND V PRIOR TO THE
COMMENCEMENT OF THE RE-TRIAL
OR ALTERNATIVELY TO OBJECT TO
THE ENTRY OF THE GUILTY PLEA TO
THOSE COUNTS SINCE THE STATE
PREVIOUSLY DISMISSED THE
PREDICATE OFFENSES OF
UNLAWFUL POSSESSION OF A
WEAPON AND POSSESSION OF A
WEAPON FOR AN UNLAWFUL
PURPOSE.

I. TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO
OBJECT TO THE PROSECUTOR'S
ENTRY OF A DISMISSAL OR NOLLE
PROSEQUI WITHOUT DEFENDANT'S
CONSENT AS TO COUNTS II, IV, VI,
AND XIV OF THE INDICTMENT.

J. APPELLATE COUNSEL WAS
INEFFECTIVE BECAUSE COUNSEL
FAILED TO ARGUE IN THE DIRECT
APPEAL TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO
OBJECT TO THE PROSECUTOR'S
ENTRY OF A DISMISSAL OR NOLLE
PROSEQUI WITHOUT DEFENDANT'S
CONSENT AS TO COUNTS II, IV, VI,
AND XIV OF THE INDICTMENT.

K. FIRST PCR COUNSEL WAS
INEFFECTIVE FOR FAILING TO FIILE
A MOTION FOR LEAVE TO AMEND

12 A-1514-18
 PCR COUNSEL'S PETITION TO
INCLUDE TRIAL COUNSEL'S AND
APPELLATE COUNSEL'S
INEFFECTIVE ASSISTANCE OF
COUNSEL FOR FAILING TO OBJECT
TO THE PROSECUTOR'S ENTRY OF A
DISMISSAL OR NOLLE PROSEQUI
WITHOUT DEFENDANT'S CONSENT
AS TO COUNTS II, IV, VI, AND XIV OF
THE INDICTMENT.

POINT IV

THE DEFENDANT'S PCR PETITION SHOULD BE
GRANTED BASED UPON THE CUMULATIVE
EFFECT OF THE ERRORS SET FORTH ABOVE, OR
ALTERNATIVELY THE DEFENDANT SHOULD BE
ENTITLED TO AN EVIDENTIARY HEARING ON
HIS CLAIM.

We reject these arguments and affirm. We note, however, that our

analysis and ultimate conclusion is guided by the following long-established,

fundamental principle of appellate jurisprudence: "an appeal is taken from a trial

court's ruling rather than reasons for the ruling, we may rely on grounds other

than those upon which the trial court relied." State v. Adubato, 420 N.J. Super.

167, 176 (App. Div. 2011). Our review of the record developed before the

Criminal Part revealed that defendant's second PCR petition was procedurally

barred under two Rules designed by the Supreme Court to identify and

summarily dismiss frivolous, superfluous, or untimely PCR petitions.

13 A-1514-18
 Rule 3:22-4(b) states:

A second or subsequent petition for post-conviction
relief shall be dismissed unless:

(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.

[(Emphasis added).]

Guided by this unambiguous language, we turn our attention to Rule 3:22-

12(a)(2), which states:

14 A-1514-18
 Notwithstanding any other provision in this rule, no
second or subsequent petition shall be filed more than
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.

[(Emphasis added).]

Here, The Criminal Part denied defendant's first PCR petition on August

5, 2013. Defendant filed his second PCR petition on December 21, 2015, more

than two years from the date the Criminal Part denied defendant's first PCR

petition. Defendant's second PCR petition is thus procedurally barred pursuant

to Rule 3:22-12(a)(2)(C) and should have been summarily dismissed.

However, on June 22, 2018, in the course his introductory remarks to

counsel when hearing oral argument on defendant's second PCR petition, the

15 A-1514-18
judge revealed a basic misapprehension about how to calculate the relevant

procedural bar:

THE COURT: All right, counsel. This case has a long
procedural history. I just want to touch on some of the
highlights. The defendant was sentenced . . . here in
Mercer County Superior Court on November 18, 2005.
He received a twenty-year NERA sentence on an
eluding count that included [an] extended term, and that
ran concurrent to three robberies, twenty years each,
NERA offenses, and my understanding was all of them
[were] to run consecutive to a sentence Mr. Morris was
serving back in November of 2005.

Mr. Morris filed a direct appeal to the Appellate
Division. His appeal was denied on January 17th, 2008.
He then filed a post[-]conviction relief [petition]. That
was before me, and I eventually entered an order on
August 5, 2013, denying that requested relief including
[finding] he did not establish a right to an evidentiary
hearing.

There was an appeal taken to that first PCR I heard.
The Appellate Division affirmed my ruling on October
1st, 2015, citing the reasons I set forth in my [twenty-
two]-page written opinion.

Mr. Morris then, less than three months later, filed a
second PCR on December [21], 2015. He amended that
on September 21st, 2016. [PCR counsel] filed his brief
on behalf of his client on January 2nd, 2018. [The
prosecutor] responded and filed her brief on April 13th,
2018.
In State v. McQuaid, our Supreme Court reaffirmed the public policy

underpinning the requirement that PCR petitions be timely filed:

16 A-1514-18
 There are good reasons for [Rule 3:22-12]. As time
passes after conviction, the difficulties associated with
a fair and accurate reassessment of the critical events
multiply. Achieving "justice" years after the fact may
be more an illusory temptation than a plausibly
attainable goal when memories have dimmed,
witnesses have died or disappeared, and evidence is lost
or unattainable. . . . Moreover, the Rule serves to
respect the need for achieving finality of judgments and
to allay the uncertainty associated with an unlimited
possibility of relitigation. The Rule therefore strongly
encourages those believing they have grounds for post-
conviction relief to bring their claims swiftly, and
discourages them from sitting on their rights until it is
too late for a court to render justice.

[147 N.J. 464, 485, (1997) (quoting State v. Mitchell,
126 N.J. 565, 575-76 (1992)).]

The timeliness of a PCR petition determines whether the court has subject

matter jurisdiction to adjudicate the matter. We have made clear that these

policy considerations impose on judges an indispensable duty to affirmatively

intervene when necessary to determine the timeliness of a petition under Rule

3:22-12:

[A] PCR judge has an independent, non-delegable duty
to question the timeliness of the petition, and to require
that defendant submit competent evidence to satisfy the
standards for relaxing the rule's time restrictions
pursuant to Rule 3:22-12. Absent sufficient competent
evidence to satisfy this standard, the court does not
have the authority to review the merits of the claim.

17 A-1514-18
 [State v. Brown, 455 N.J. Super. 460, 470 (App. Div.
2018), certif. denied, 236 N.J. 374 (2019).]

Based on the undisputed facts described here, we hold the Criminal Part

did not have subject matter jurisdiction under Rule 3:22-12(a)(2)(C) to

adjudicate the merits of defendant's second PCR petition.

Affirmed.

18 A-1514-18