STATE OF NEW JERSEY v. DARNELL R. HICKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARNELL R. HICKS,

Defendant-Appellant.

___________________________

February 12, 2016

Submitted February 1, 2016 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-02-0351.

Darnell Hicks, appellant pro se.

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Darnell Hicks appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the following reasons, we affirm.

Defendant was indicted under Atlantic County Indictment No. 02-02-0351 for several drug-related offenses. In July 2002, he was sentenced to probation. In June 2003, he received notice to appear on an alleged violation of probation (VOP). On October 19, 2004, he was arrested and incarcerated on a VOP warrant.

On December 15, 2004, defendant was indicted under Atlantic County Indictment No. 04-12-2621 for the purposeful or knowing murder of Joseph Burton, N.J.S.A. 2C:11-3(a)(1), (2); conspiracy to commit second-degree aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(1); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); second-degree aggravated assault upon Khalif Roberts, N.J.S.A. 2C:12-1(b)(1); fourth-degree aggravated assault by pointing a firearm at Roberts, N.J.S.A. 2C:12-1(b)(4); fourth-degree aggravated assault by pointing a firearm at Burton, N.J.S.A. 2C:12-1(b)(4); hindering apprehension, N.J.S.A. 2C:29-3(a)(3); and tampering with physical evidence, N.J.S.A. 2C:28-6(1). On January 8, 2008, defendant was indicted under Atlantic County Indictment No. 08-01-0021 for possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7, based on the same incident as Indictment No. 04-12-2621. Defendant's VOP hearing was apparently carried without a date pending resolution of these new charges.

A jury acquitted defendant of Burton's murder and possession of a weapon for an unlawful purpose, but found him guilty of the other offenses charged in Indictment No. 04-12-2621. Immediately following this verdict, the same jury found defendant guilty of possession of a firearm by a convicted felon under Indictment No. 08-01-0021.

On April 17, 2008, the trial court sentenced defendant to concurrent nine-year terms with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, for conspiracy to commit second-degree aggravated assault and the second-degree aggravated assault upon Roberts; a consecutive term of eighteen months for tampering with evidence; and a consecutive nine-year term, with five years of parole ineligibility, for possession of a weapon by a convicted felon. The court also imposed concurrent terms of five years for unlawful possession of a handgun and eighteen months for the two fourth-degree aggravated assaults.

Defendant appealed his conviction and sentence. We affirmed, but remanded to correct a technical problem with the sentence. State v. Hicks, No. A-0097-08 (App. Div. Aug. 12, 2010). Our Supreme Court denied certification. State v. Hicks, 205 N.J. 79 (2011).

Defendant filed a PCR petition, arguing, in part, that trial counsel rendered ineffective assistance by failing to request a VOP hearing prior to sentencing on Indictment Nos. 04-12-2621 and 08-01-0021, and failing to request additional jail credits from October 19, 2004. In an oral opinion, Judge Kyran Connor found that because defendant was sentenced on Indictment Nos. 04-12-2621 and 08-01-0021 before State v. Hernandez, 208 N.J. 24, (2011), he was not entitled to the jail credits he requested. The judge also found that Rule 3:22-4 barred defendant's claim regarding the denial of a VOP hearing, as it should have been raised on direct appeal; defendant suffered no prejudice because he received no prison sentence for the VOP; and defendant's conviction for the new crimes constituted an automatic VOP for which a hearing was not necessary. Accordingly, the judge concluded that trial counsel's performance was not deficient.

Defendant appealed, but raised no argument about trial counsel's alleged deficiencies. We affirmed, and the Court denied certification. State v. Hicks, No. A-1372-12 (App. Div. Mar. 10, 2014), certif. denied, 219 N.J. 628 (2014).

Defendant filed a second PCR petition, arguing that appellate counsel rendered ineffective assistance by failing to raise trial counsel's deficiencies on appeal. In a written opinion, Judge Connor denied the petition. The judge again found that because defendant was sentenced before Hernandez, he was not entitled to the jail credits he requested; defendant suffered no prejudice because he received no prison sentence for the VOP; and defendant's conviction for the new crimes constituted an automatic VOP for which a hearing was not necessary. Accordingly, the judge concluded that appellate counsel's performance was not deficient.

On appeal, defendant raises the following argument

PURSUANT TO N.J.S.A. [2C:45-4], THIS COURT MUST ADDRESS WHETHER DUE PROCESS RIGHT OF DEFENDANT WAS VIOLATED WHEN THE TRIAL (PCR COURT) FAILED TO ADDRESS THE VOP ISSUE PRIOR TO SENTENCE IMPOSED ON UNRELATED CHARGES AND, WHETHER DEFENDANT IS ENTITLED TO DAY-FOR-DAY JAIL TIME CREDIT FOR TIME IN COUNTY JAIL ON VOP IN THIS MATTER.[1]

We have considered this argument in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Connor in his oral and written opinions.

Affirmed.