                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3081-17T4
                                                                     A-3082-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHAWN L. SPIVEY,

     Defendant-Appellant.
___________________________

                    Submitted March 6, 2019 – Decided April 11, 2019

                    Before Judges Koblitz and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment Nos.
                    09-06-1046 and 10-06-0972.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Ruth E. Hunter, Designated Counsel, on the
                    briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent in A-3081-17 (Carol M. Henderson,
                    Assistant Attorney General, of counsel and on the
                    brief).
            Andrew C. Carey, Middlesex County Prosecutor,
            attorney for respondent in A-3082-17 (Nancy A. Hulett,
            Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

      In these back-to-back appeals, consolidated for purposes of this opinion,

defendant Shawn Spivey appeals from two January 16, 2018 orders denying

without an evidentiary hearing his separate applications for post-conviction

relief (PCR) on the basis of ineffective trial and appellate counsel. We affirm.

      Defendant was charged under two different indictments for drug

possession and related offenses on two distinct dates, occurring nearly one year

apart. The facts leading to defendant's June 4, 2013 judgment of conviction,

under Indictment No. 10-06-0972, are set forth in our unpublished opinion in

State v. Spivey, No. A-0669-13 (App. Div. May 7, 2015) (Spivey I), which we

incorporate by reference. The facts related to defendant's August 20, 2013

judgment of conviction, under Indictment No. 09-06-1046, are detailed in our

unpublished opinion in State v. Spivey, No. A-1155-13 (App. Div. July 6, 2015)

(Spivey II), which we also incorporate by reference.

      In Spivey I, we held a videotaped statement to police made by co-

defendant was inadmissible because it "contained material prejudicial to the




                                                                         A-3081-17T4
                                       2
defense."1 Spivey I, slip op. at 13. We also opined co-defendant's identification

of defendant was admissible notwithstanding "that the one-photo identification

procedure was suggestive" because co-defendant's "prior contact with defendant

rendered unlikely an 'irreparable misidentification.'" Id. at 12-13. Because

defense counsel had ample opportunity to cross-examine co-defendant on his

identification of defendant, we determined defendant was not deprived of his

right to a fair trial. Ibid. We rejected all other issues asserted in Spivey I as

without sufficient merit to warrant discussion in a written opinion. Id. at 12.

      After we affirmed defendant's conviction in Spivey I, defendant filed a

petition for certification to the New Jersey Supreme Court, which was denied.

State v. Spivey, 223 N.J. 164 (2015). On January 19, 2016, the United States

Supreme Court denied defendant's petition for a writ of certiorari. State v.

Spivey, ___ U.S. ___, 136 S. Ct. 910 (2016).

      Two months after our decision in Spivey I, we affirmed defendant's

conviction in Spivey II. In Spivey II, we explained the State's impeachment of

three defense witnesses regarding their prior criminal convictions was



1
   At defendant's insistence, notwithstanding defense counsel explaining the
statement could be damaging if admitted at trial, counsel asked the trial judge to
admit co-defendant's videotaped statement to the police. The trial judge denied
counsel's request.
                                                                          A-3081-17T4
                                        3
permissible under N.J.R.E. 609.       Spivey II, slip op. at 11-12.       We also

determined the prosecutor's statements during closing argument were not

capable of producing an unjust result and therefore did not deprive defendant of

a fair trial. Id. at 12-13. On the jury's use of binoculars, we noted the binoculars

were entered into evidence and defendant failed to object to their use at trial.

Id. at 13. Even if the use of the binoculars had been improper, under the plain

error standard, we opined the error was not clearly capable of producing an

unjust result. Ibid.

      After we affirmed defendant's conviction in Spivey II, defendant filed a

petition for certification to the New Jersey Supreme Court. On December 15,

2015, the Court denied the petition. State v. Spivey, 223 N.J. 557 (2015).

      In March 2016, defendant filed separate PCR petitions related to issues in

Spivey I and Spivey II. In his PCR petition regarding Spivey I, defendant

claimed his trial attorney was ineffective because he failed to request the

videotaped statement of co-defendant be played for the jury and failed to object

to co-defendant's photo identification.2 He also claimed his trial and appellate




2
   We note defendant's trial counsel requested the admission of the videotaped
statement and the request was denied.
                                                                            A-3081-17T4
                                         4
counsel were ineffective because they failed to raise a Confrontation Clause

challenge regarding the testimony of the State's DNA expert.

      In his PCR petition related to Spivey II, defendant argued his trial counsel

was ineffective based on counsel's failure to object to the prosecutor's

impeachment of a defense witness, the statements by the prosecutor during

closing argument, and the jury's use of the binoculars.

      On January 12, 2018, the PCR judge considered the arguments related to

defendant's PCR petitions simultaneously. Four days later, the judge issued a

written opinion, incorporating her decision on both petitions, and signed

separate orders denying PCR.

      The judge held that defendant's argument in Spivey I, based on an alleged

violation of the Confrontation Clause, U.S. Const. amend. VI, and N.J. Const.

art. I, ¶ 10, was procedurally deficient pursuant to Rule 3:22-5 and substantively

flawed. The judge found the State's DNA expert, Charity Holland, testified to

personally analyzing the DNA profile, explained the DNA testing protocol,

wrote a report stating her own conclusions, and did not parrot conclusions

reached by others who analyzed the DNA.             The judge also determined




                                                                          A-3081-17T4
                                        5
defendant's PCR petitions failed to establish ineffective assistance of counsel

under either prong of the Strickland-Fritz3 analysis.

            On appeal of the PCR denial in Spivey I, defendant argues:

            POINT I

            THE PCR COURT SHOULD HAVE HELD AN
            EVIDENTIARY   HEARING   BECAUSE   THE
            PETITION WAS NOT PROCEDURALLY BARRED.

            A. DEFENDANT'S PCR CHALLENGE REGARDING
            THE VIDEOTAPE WAS NOT THE SAME ISSUE
            THAT WAS RAISED ON DIRECT APPEAL.

            B. REGARDING THE IDENTIFICATION ISSUE,
            THE REAL PROBLEM BEFORE THE PCR COURT
            WAS THE COMPLETE LACK OF COUNSEL AS TO
            THIS ISSUE ON DIRECT APPEAL.

            C. DEFENDANT SHOULD HAVE BEEN ABLE TO
            CHALLENGE HIS ATTORNEY'S DECISION NOT
            TO ALLEGE A CONFRONTATION CLAUSE
            VIOLATION AT TRIAL.

            POINT II

            DEFENDANT'S RIGHT TO CONFRONTATION
            WAS VIOLATED BY THE TESTIMONY OF
            HOLLAND, WHICH INCORPORATED ANOTHER
            SCIENTIST'S FINDINGS.

      On appeal of the PCR denial in Spivey II, defendant asserts:


3
  Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42
(1987).
                                                                         A-3081-17T4
                                        6
            POINT I

            THE PCR COURT SHOULD HAVE HELD AN
            EVIDENTIARY   HEARING   BECAUSE   THE
            PETITION WAS NOT PROCEDURALLY BARRED.

            POINT II

            COUNTS ONE THROUGH FOUR SHOULD HAVE
            MERGED WITH COUNT FIVE.

      To establish an ineffective assistance of counsel claim, a defendant must

demonstrate: (1) counsel's performance was deficient, and (2) the deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687; see also Fritz,

105 N.J. at 58 (adopting the Strickland two-part test in New Jersey).            In

reviewing claims of ineffective assistance of appellate counsel, we apply the

same standard as we do for assessing an ineffective assistance of trial counsel

claim. See State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987).

      There is a strong presumption counsel "rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

judgment." Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matter of trial

strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz,

105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963)). Generally,

"strategic miscalculations or trial mistakes are insufficient to warrant reversal

'except in those rare instances where they are of such magnitude as to thwart the

                                                                          A-3081-17T4
                                        7
fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 315

(2006) (alternation in original) (quoting State v. Buonadonna, 122 N.J. 22, 42

(1991)).

      To succeed under the second prong of the Strickland-Fritz test, a

defendant must show trial counsel's errors were "so serious as to deprive the

defendant of a fair trial . . . ." Fritz, 105 N.J. at 52. A defendant must show the

errors created more than a "conceivable effect on the outcome of the

proceeding." Strickland, 466 U.S. at 694. Instead, a defendant must show the

reasonable probability that "but for counsel's unprofessional errors the result of

the proceeding would have been different." Ibid.

      Defendant has not shown defense counsels' performance was so deficient

as to constitute ineffective assistance of counsel.         Defendant failed to

demonstrate defense counsels' alleged deficiencies deprived him of a fair trial.

Nor did defendant establish the outcome of the trials would have differed if

counsel raised certain arguments.

      An issue decided on direct appeal may not be considered in a PCR

proceeding. State v. Preciose, 129 N.J. 451, 476 (1992). Defendant argues his

direct appeals did not address the same claims as his PCR applications because

his direct appeals were limited to a review of the trial courts' errors and his PCR


                                                                           A-3081-17T4
                                        8
applications addressed his trial counsels' errors.        The issues asserted in

defendant's PCR applications, however, implicate the same substantive claims

of error that defendant raised, and we rejected, in his direct appeals.

      Under the plain error standard used on direct appeal, defendant bears the

burden of demonstrating an error was "clearly capable of producing an unjust

result . . . ." R. 2:10–2. In the context of a PCR petition, the question is whether

the error denied a fair decision on the merits. State v. Macon, 57 N.J. 325, 338

(1971).

      In Spivey I and Spivey II, we determined the errors alleged by defendant

were not "clearly capable of producing an unjust result" based upon the strong

evidence against defendant in both cases. R. 2:10-2.

      In Spivey II, because counsel did not object to the jury's use of the police

surveillance binoculars to assess their accuracy, we reviewed the issue under the

plain error standard. The binoculars were admitted as evidence during the trial

and the jury was allowed to review all admissible evidence in rendering a

verdict. Defendant does not explain why the jury's testing of the binoculars was

improper, or how it harmed his defense. Because the evidence of defendant's

guilt was strong, he suffered no prejudice as a result of the jury's use of the

binoculars that could satisfy the second prong of the Strickland-Fritz test.


                                                                            A-3081-17T4
                                         9
      On direct appeal in Spivey II, we also expressed that the prosecutor's

cross-examination of defense witnesses and statements during closing argument

were not improper. Thus, defense counsel's failure to object was appropriate.

      Based on our decisions on defendant's direct appeal in both cases,

defendant has not shown any trial error.

      We next consider defendant's PCR argument regarding his appellate

counsel's failure to raise a Confrontation Clause challenge. While the appeal in

Spivey I was pending, the Supreme Court held a defendant is required to raise a

Confrontation Clause objection to the trial court or the issue is waived. See

State v. Williams, 219 N.J. 89, 98-99 (2014).         Based on that decision,

defendant's appellate counsel withdrew the Confrontation Clause argument.

      Nor was it error for trial counsel not to assert a Confrontation Clause

challenge. The State was not required to produce every DNA expert who

analyzed the sample in this case. In considering the testimony of scientific

experts during trial, the Court has determined not "every analyst involved in a

testing process must testify in order to satisfy confrontation rights." State v.

Roach, 219 N.J. 58, 77 (2014). A supervisor who has "conducted his or her own

independent review of the data generated by other analysts" is permitted to

testify regarding "conclusions he or she has drawn from that independent


                                                                        A-3081-17T4
                                      10
analysis" without violating the Confrontation Clause. Id. at 78. The testifying

expert may not parrot another's opinion and "the testimony must be provided by

a truly independent and qualified reviewer of the underlying data and

report . . . ." Id. at 79.

       Here, the State was not required to present both the analyst who provided

the DNA profile testimony and her supervisor because Holland, as the testifying

analyst, conducted the DNA testing. Holland's trial testimony was based on her

testing and her preparation of a written report containing her conclusions. In

addition, Holland was extensively cross-examined by defense counsel. Thus,

defendant's right to confront the witness was not violated. Without a violation

of defendant's Confrontation Clause right, trial counsel could not have been

ineffective for not raising the argument.

       We turn to defendant's argument that Counts One through Four in Spivey

II should have merged into Count Five. Counts One through Five charged

defendant with third-degree possession and distribution of cocaine. Defendant

contends the offenses in Counts One through Four were established by the same

or less facts required to establish the commission of a crime in Count Five and

therefore should have been merged into Count Five. See State v. Gonzalez, 123

N.J. 462, 465 (1991).        Defendant requests his convictions for Counts One


                                                                        A-3081-17T4
                                        11
through Four be vacated and the judgment of conviction amended to provide for

fines and penalties on Count Five only.

      We note this issue was not raised in defendant's PCR petition. However,

an illegal sentence may be challenged at any time. See State v. Murray, 162 N.J.

240, 245-47 (2000); R. 3:21-10(b)(4).

      Having reviewed the record, the grounds for merger are apparent as

Counts One through Four require the same or less factual proofs as defendant's

conviction on Count Five. At defendant's sentencing in Spivey II, the State

agreed "the other counts would merge, Counts 1 through 5." Based on the State's

position at sentencing and the State's failure to substantively respond to

defendant's merger argument on appeal, we remand Spivey II for the trial court

to amend the judgment of conviction to vacate defendant's convictions in Counts

One through Four and to impose fines and penalties for Count Five only.

      We affirm the denial of defendant's PCR petitions for the reasons stated.

Because defendant failed to establish a reasonable likelihood of satisfying either

prong of the Strickland-Fritz test, an evidentiary hearing was not warranted.

Preciose, 129 N.J. at 462-63.

      Affirmed. Remanded only to correct the judgment of conviction. We do

not retain jurisdiction.


                                                                          A-3081-17T4
                                        12
