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State v. Sprague

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Sep 24, 2015
DOCKET NO. A-5039-12T4 (App. Div. Sep. 24, 2015)

Opinion

DOCKET NO. A-5039-12T4

09-24-2015

STATE OF NEW JERSEY, Plaintiff-Respondent, v. CALVIN SPRAGUE, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (William P. Welaj, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-07-1093. Joseph E. Krakora, Public Defender, attorney for appellant (William P. Welaj, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Defendant appeals from a March 15, 2013 order denying his petition for post-conviction relief (PCR). Defendant maintains that his trial counsel rendered ineffective assistance. We affirm.

The following evidence was presented by the State, supporting defendant's underlying conviction. Defendant and the victim had been dating for approximately eight weeks, and were spending the night at a motel room when defendant stabbed the victim in her back with a knife. The victim sustained injuries to her right arm, left thumb, back, and chest.

A grand jury indicted and charged defendant with first-degree attempted murder, N.J.S.A. 2C:5-1a(3) and N.J.S.A. 2C:11-3a(1) (Count One); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Two); third-degree terroristic threats, N.J.S.A. 2C:12-3b (Count Three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Five).

At trial, defendant testified that the victim's injury to her back resulted from consensual sex that night. The jury found defendant not guilty on Counts One and Three, but guilty on Counts Two, Four, and Five. The judge sentenced defendant to an extended term as a persistent offender, and imposed a prison term of fifteen years subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

We affirmed defendant's convictions and sentences in an unpublished opinion and the Supreme Court denied certification. State v. Sprague, No. A-0745-08 (App. Div. Dec. 23, 2010), certif. denied, 209 N.J. 596 (2012). Defendant filed this petition arguing primarily that his trial counsel provided ineffective assistance of counsel by failing to adequately cross-examine a witness and that the State committed a Brady violation by failing to produce a recording in its entirety. The PCR judge denied the petition without an evidentiary hearing.

Defendant also raised five additional issues, each in a single sentence, without any basis in support thereof. --------

On appeal, defendant argues:

POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR [PCR].

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO CALL AS A WITNESS THE POLICE OFFICER WHO SPOKE WITH THE DEFENDANT WHEN HE WAS ADVISED OF HIS WARNINGS, AT WHICH TIME HE ASSERTED HIS INNOCENCE AND MAINTAINED THE VICTIM'S
INJURIES HAD BEEN ACCIDENTAL IN NATURE (NOT RAISED BELOW).

For a defendant to obtain relief based on ineffective assistance grounds, he must show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

Defendant maintains for the first time that his trial counsel rendered ineffective assistance by failing to produce an arresting police officer as a witness at trial. Specifically, defendant asserts the witness would testify he asserted his innocence when arrested and stated the victim's injuries "had been accidental in nature." We generally decline to consider issues that were not presented to the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding an appellate court will decline to consider issues not previously raised before the trial court, unless the challenges address "the jurisdiction of the trial court or concern matters of great public interest"). Nevertheless, we have considered defendant's arguments. Following our review we conclude the alleged deficiencies raised by defendant clearly fail to meet either of the performance or prejudice prongs of the Strickland test.

Defendant contends that the officer's testimony would be evidence of a prior consistent statement, rebutting the State's implication that defendant was lying at trial. Prior consistent statements may be offered to rehabilitate the credibility of a witness where there has been a charge or suggestion that the witness's testimony is a product of recent fabrication. See N.J.R.E. 607 and N.J.R.E. 803(a)(2).

However, defendant's assertions are unaccompanied by a statement from the proposed witness. There is no credible indication in the record that the officer would have testified as alleged. Moreover, the State consistently maintained defendant had lied about the accidental nature of the victim's injuries; it never argued defendant's trial testimony was recently fabricated. Thus, introducing testimony from the officer to rehabilitate defendant with a prior consistent statement would have been improper.

Finally, a defendant is entitled to an evidentiary hearing only when he or she "has presented a prima facie [case] in support of [PCR,]" meaning that "the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (first alteration in original), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Defendant fails to demonstrate a reasonable likelihood of success on the merits, and thus he is not entitled to an evidentiary hearing.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. Sprague

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Sep 24, 2015
DOCKET NO. A-5039-12T4 (App. Div. Sep. 24, 2015)
Case details for

State v. Sprague

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. CALVIN SPRAGUE…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Sep 24, 2015

Citations

DOCKET NO. A-5039-12T4 (App. Div. Sep. 24, 2015)