STATE OF NEW JERSEY v. TALBERT D. HINTON

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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 NO. A-1377-19T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TALBERT D. HINTON a/k/a
YASIN R. BRYANT, TALBERT
HINTN, TAV HINTON,
HINTON D. TALBERT,
BRYANT YASIN,

     Defendant-Appellant.
___________________________

                   Submitted January 13, 2021 – Decided January 29, 2021

                   Before Judges Whipple and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 14-01-
                   0098.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Kevin G. Byrnes, Designated Counsel, on
                   the briefs).
            Christopher J. Gramiccioni, Monmouth County
            Prosecutor, attorney for respondent (Carey J. Huff,
            Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

      A jury convicted defendant Talbert Hinton of second-degree sexual

assault and endangering the welfare of a five-year-old girl, who lived in his

girlfriend's neighborhood. The trial judge sentenced defendant to an aggregate

prison term of eighteen years, subject to the No Early Release Act,  N.J.S.A.

2C:43-7.2. We incorporate by reference the facts and procedural history set

forth in our prior opinion, affirming defendant's convictions and sentence on

direct appeal. State v. Hinton, No. A-5529-14 (App. Div.) (slip op. 2-6), certif.

denied,  232 N.J. 373 (2017).

      Thereafter, defendant filed a pro se petition for post-conviction relief

(PCR), alleging trial counsel "did not represent him the right way," argued with

defendant, and failed to communicate with him. PCR counsel filed a brief on

defendant's behalf, explaining defendant claimed trial counsel was inef fective

by failing to: (1) conduct "any independent investigation"; and (2) "make

sufficient time to meet with him and discuss trial strategy." But defendant did

not provide any sworn statements or other proof detailing those assertions.




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      Following argument, Judge Dennis R. O'Brien rendered a cogent oral

decision from the bench, denying PCR. The judge's decision, which spanned

thirteen transcript pages, squarely addressed the issues raised in view of the

governing legal principles. The judge memorialized his decision in a September

30, 2019 order.

      Defendant now appeals, reprising the arguments raised before the PCR

judge. He raises the following points for our consideration:

                                   POINT I

            []DEFENDANT    WAS   DENIED   EFFECTIVE
            ASSISTANCE    OF   TRIAL  COUNSEL    AS
            GUARANTEED BY THE SIXTH AMENDMENT TO
            THE UNITED STATES CONSTITUTION AND ART.
            I, PAR[A]. 10 OF THE NEW JERSEY
            CONSTITUTION.

                                   POINT II

            []DEFENDANT   IS  ENTITLED                  TO     AN
            EVIDENTIARY HEARING.

                                  POINT III

            []DEFENDANT IS ENTITLED TO DE NOVO
            REVIEW, AND NO DEFERENCE SHOULD BE
            GIVEN TO THE ERRONEOUS CONCLUSION
            BELOW.

      In essence, defendant maintains trial counsel "failed to provide him with

a complete defense against the child sex abuse charges" for which he was

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                                       3
convicted. Defendant claims his pretrial applications, including his pro se

motion for another assigned counsel, were "clear implication[s]" that trial

counsel was ineffective.

      We have carefully considered defendant's arguments, in light of the

applicable law, and conclude the substantive claims asserted in points I and II

lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We affirm substantially for the reasons set forth by Judge O'Brien in his well -

reasoned oral decision. We add only the following brief remarks.

      Where, as here, the judge has not held a hearing, we agree with defendant's

contention in point III that our review generally is de novo. State v. Harris,  181 N.J. 391, 420-21 (2004). Nonetheless, "the factual findings underpinning the

legal conclusions are reviewed for clear error." Ibid. (internal quotation marks

omitted). And we review a judge's decision to grant or deny a defendant's

request for a hearing under an abuse of discretion standard. State v. Preciose,

 129 N.J. 451, 462 (1992); State v. L.G.-M,  462 N.J. Super. 357, 365 (App. Div.),

certif. denied,  241 N.J. 514 (2020).

      A defendant is entitled to an evidentiary hearing only when he "has

presented a prima facie [case] in support of [PCR]," State v. Marshall,  148 N.J.
 89, 158 (1997) (first alteration in original) (quoting Preciose,  129 N.J. at 462),


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meaning that a "defendant must demonstrate a reasonable likelihood that his

. . . claim will ultimately succeed on the merits." Ibid. For a defendant to obtain

relief based on ineffective assistance grounds, he is obliged to 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 (1984); State v. Fritz,  105 N.J. 42, 58 (1987) (adopting the

Strickland two-part test in New Jersey) (Strickland/Fritz test).

      In sum, the record support's the PCR judge's conclusion that defendant

failed to demonstrate a reasonable likelihood that his PCR claim will ultimately

succeed on the merits, and failed to satisfy either prong of the Strickland/Fritz

test. As Judge O'Brien astutely recognized, defendant did "not assert how

counsel could have better investigated his case" where, as here, "the record

shows defendant did have an investigator working on his case." In that regard,

the judge noted defendant did not specify "which persons should have been

called to favorably testify for him or what they would have testified to if called."

      While the PCR judge found the record was devoid of any information to

support defendant's claim that trial counsel failed to conduct an inves tigation,

the judge conversely found the record disproved defendant's claim that trial

counsel failed to communicate with him. The judge elaborated: "Defendant and


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trial counsel discussed his pro se motions to dismiss counsel and a subsequent

decision to keep counsel, to the cases which he pled and extensively about his

right to testify at trial. Defendant further confirmed that they spoke about his

right to appeal."

      Because there was no prima facie showing of ineffective assistance of

counsel, an evidentiary hearing was not necessary to resolve defendant's PCR

claims. Preciose,  129 N.J. at 462.

      Affirmed.




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