State v. Spurgeon

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 92-09-1706.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 31, 2007

Before Judges Payne and Messano.

Defendant, Dwayne Spurgeon, appeals from the denial of his petition for post-conviction relief (PCR), initially filed almost ten years after his conviction and sentencing, and denied on the grounds that the petition was untimely, see Rule 3:22-12, and that defendant's arguments lacked merit.

On appeal, defendant raises the following issues:

POINT I

BECAUSE HIS TRIAL ATTORNEY MISINFORMED HIM ABOUT HIS SENTENCING EXPOSURE AFTER TRIAL, DEFENDANT WAS PREVENTED FROM MAKING A FAIR EVALUATION OF THE PLEA OFFER WHICH HE REJECTED. COUNSEL'S MISADVICE THUS CONSTITUTED REMEDIAL INEFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO STATE V. TACETTA.

POINT II

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO SECURE THE TESTIMONY OF AN EXPERT QUALIFIED TO TESTIFY REGARDING THE IMPACT OF DEFENDANT'S PSYCHIATRIC CONDITION ON THE SUBJECTIVE ELEMENTS OF PASSION/PROVOCATION MANSLAUGHTER. APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THIS ISSUE ON APPEAL.

POINT III

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO SUBMIT A COMPETENT PSYCHIATRIC REPORT REGARDING DEFENDANT'S MENTAL CONDITION IN MITIGATION OF SENTENCE.

POINT IV

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, WHO FAILED TO RAISE A CLEARLY MERITORIOUS ISSUE REGARDING THE ...