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). 

NOT FOR PUBLICATION WITHOUT THE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.
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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 codefendant 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.