STATE OF NEW JERSEY v. DARIN HICKSON (92-12-1863, BERGEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-1679-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARIN HICKSON, a/k/a
DAARON HIXON,
Defendant-Appellant.
_________________________
Submitted March 21, 2022 – Decided March 30, 2022
Before Judges Fasciale and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 92-12-1863.
Darin Hickson, appellant pro se.
Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel; Catherine A. Foddai, Legal Assistant, on the
brief).
PER CURIAM
Defendant appeals from a September 30, 2019 order denying his seventh
petition for post-conviction relief (PCR) and a November 22, 2019 order
denying reconsideration. Judge James X. Sattely entered the orders and
rendered a written opinion concluding the petition is time barred. We affirm for
substantially the reasons the judge gave and add these brief remarks.
In an indictment filed December 30, 1992, defendant was charged with
first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree
robbery felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed
robbery, N.J.S.A. 2C:15-1 (count three); and third-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four). In January
1994, a jury acquitted defendant of murder and instead convicted him of the
lesser-included offense of aggravated manslaughter. The jury convicted
defendant of all other charges. After various mergers, the trial judge sentenced
defendant to life imprisonment with thirty years of parole ineligibility. The
convictions arose out of the May 1992 robbery of a jewelry store and the fatal
stabbing of the store owner.
We affirmed defendant's conviction and sentence in July 1996. State v.
Hickson, No. A-6126-93T4 (App. Div. July 8, 1996), and the Supreme Court
subsequently denied certification, State v. Hickson, 146 N.J. 570 (1996).
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Defendant filed his first petition for PCR on July 18, 1997. The first PCR
judge denied the petition without an evidentiary hearing. Defendant appealed
the denial, and we remanded the case for an evidentiary hearing on his claim of
jury taint based on an allegedly improper communication with a Sheriff's
Officer. After an evidentiary hearing on the matter, the first PCR judge denied
defendant's petition, we affirmed, State v. Hickson, No. A-3901-99T4 (App.
Div. Apr. 19, 2001), and the Court denied certification, State v. Hickson,
169 N.J. 610 (2001).
We then affirmed defendant's second and third petitions for PCR. State
v. Hickson, No. A-5329-01T3 (App. Div. Oct. 31, 2003) (denying second
petition), certif. denied, 179 N.J. 373 (2004); State v. Hickson, No. A-1741-
04T3 (App. Div. Jan. 26, 2006) (denying third petition), certif. denied, 186 N.J.
607 (2006). In 2009, we affirmed an order denying defendant's motion to correct
an illegal sentence, amounting to a fourth petition for PCR. State v. Hickson,
No. A-0249-07T4 (App. Div. Apr. 14, 2009), certif. denied, State v. Hickson,
200 N.J. 471 (2009) (but remanding for a technical correction to the judgment
of conviction). In 2010, defendant filed a motion for a new trial based on newly
discovered evidence surrounding a purported immunity agreement between the
State and two witnesses. We affirmed the order denying the motion. State v.
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Hickson, No. A-0171-10T1 (App. Div. Feb. 8, 2012), certif. denied, State v.
Hickson, 211 N.J. 275 (2012).
Defendant filed a motion for a reduction of his sentence under Rule 3:21-
10 in 2014. The motion judge denied the motion in an order entered August 5,
2014, finding it was "in the nature of a PCR" and not a request for modification
of sentence. We affirmed the order denying the motion, State v. Hickson, A-
5907-13 (App. Div. Mar. 10, 2015), certif. denied, State v. Hickson, 223 N.J.
164 (2015).
In May 2016, defendant applied for assignment of a Public Defender in
connection with his motion to correct an illegal sentence pursuant to Rule 3:21-
10(b)(5). Defendant argued that his sentence was illegal because the indictment
was void. The Office of the Public Defender denied defendant's application for
assignment of counsel and instructed defendant that his motion should be
brought as a PCR petition.
In 2018, defendant filed a sixth petition for PCR, claiming ineffective
assistance of his trial and appellate counsel. On August 14, 2018, the judge
dismissed the petition as time barred and because it did not allege any ineffective
assistance by defendant's PCR counsel. On January 2, 2019, defendant re-
submitted the petition, arguing that he received ineffective assistance from his
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PCR counsel because PCR counsel failed to argue that his trial counsel should
have challenged the jury instruction on felony murder and an allegedly void
indictment. The PCR judge denied the petition as time-barred by Rule 3:22-12
on September 30, 2019. Defendant moved for reconsideration, which the judge
denied on November 22, 2019.
On appeal, defendant asserts the following arguments:
POINT ONE
THE [JUDGE] ERRED IN DENYING
DEFENDANT'S PETITION FOR [PCR],
RESULTING IN VIOLATIONS OF . . .
DEFENDANT'S CONSTITUTIONAL RIGHTS TO
DUE PROCESS OF LAW UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS OF THE UNITED
STATES CONSTITUTION, AND ART. I[,] P[AR]. 10
[OF] THE CONSTITUTION AND LAWS OF THE
STATE OF NEW JERSEY.
POINT TWO
[DEFENDANT] RELIES ON THE APPLICATION OF
THE INJUSTICE EXCEPTION AS HIS [PCR]
COUNSEL ON HIS FIRST AND SUBSEQUENT
PETITIONS FOR [PCR] WAS INEFFECTIVE IN
FAILING TO RAISE INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL RESULTING IN
VIOLATIONS OF . . . DEFENDANT'S SIXTH AND
FOURTEENTH AMENDMENTS UNDER THE
UNITED STATES CONSTITUTION AND ART. I[,]
P[AR]. 10 OF THE CONSTITUTION AND LAWS OF
THE STATE OF NEW JERSEY.
A-1679-19
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A. [PCR] Counsel Was Ineffective In Failing To
Raise Ineffective Assistance Of Trial Counsel
Because Trial Counsel Did Not Challenge The
Trial [Judge's] Failure To Charge The Jury On
The Predicate Felony Of First-Degree Robbery
Within The Felony Murder Charge Under Count
Two Resulting In Prejudice And A Substantial
Denial In The Conviction Proceedings Of
Defendant's Sixth And Fourteenth Amendment
Rights Of The Constitution Of The United States
And Art. I[,] Par. 10 Of The Constitution And
Law[s] Of The State Of New Jersey.
B. [PCR] Counsel Was Ineffective In Failing To
Raise Ineffective Assistance Of Trial Counsel
Because Trial Counsel Did Not Challenge The
Fact That . . . Defendant Has Been Served, Tried,
Convicted, And Sentenced Upon An[] Invalid
And Void Indictment Thus Results In Denial Of
Fundamental Fairness In A Constitutional Sense,
Thus Resulting In Prejudice And Substantial
Denial In The Conviction Proceedings Of
Defendant's Sixth And Fourteenth Amendment
Rights Of The Constitution Of The United States
And Art. I[,] Par. 8 And Art. I[,] Par. 10 Of The
Constitution And Laws Of The State Of New
Jersey.1
POINT THREE
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
BECAUSE TRIAL COUNSEL DID NOT
CHALLENGE THE TRIAL [JUDGE'S] ERROR
WHERE [HE] DID NOT INSTRUCT THE JURY TO
THE ELEMENTS OF THE PREDICATE FELONY OF
1
To comport with our style conventions, we have altered the capitalization of
defendant's subpoints A and B but have omitted these alterations for readability.
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FIRST[-]DEGREE ROBBERY WITHIN THE
FELONY MURDER JURY INSTRUCTION THUS
VIOLATING DEFENDANT'S RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL, A FAIR
TRIAL AND DUE PROCESS OF LAW RESULT IN
PREJUDICE AND A SUBSTANTIAL DENIAL IN
THE CONVICTION PROCEEDINGS OF
DEFENDANT'S SIXTH AND FOURTEENTH
AMENDMENT RIGHTS OF THE CONSTITUTION
OF THE UNITED STATES AND ART. I[,] P[AR]. 10
OF THE CONSTITUTION AND LAWS OF THE
STATE OF NEW JERSEY.
POINT FOUR
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
FOR FAILING TO CHALLENGE THE FACT
THAT . . . DEFENDANT HAS BEEN SERVED[,]
TRIED, CONVICTED, AND SENTENCED UPON
AN[] INVALID AND VOID INDICTMENT THUS
RESULTS IN DENIAL OF FUNDAMENTAL
FAIRNESS IN A CONSTITUTIONAL SENSE, THUS
RESULTING IN PREJUDICE AND SUBSTANTIAL
DENIAL IN THE CONVICTION PROCEEDINGS OF
DEFENDANT'S SIXTH AND FOURTEENTH
AMENDMENT RIGHTS OF THE CONSTITUTION
OF THE UNITED STATES AND ART. I[,] P[AR]. 8
AND 10 OF THE CONSTITUTION AND LAWS OF
THE STATE OF NEW JERSEY.
When a PCR judge does not conduct an evidentiary hearing—like here—
we review the PCR judge's factual findings and legal conclusions de novo. See
State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016).
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Applying that standard, we agree that the judge correctly denied
defendant's petition for the reasons expressed in his written decision. We find
no merit in any of defendant's contentions and conclude that he failed to
establish that his petition was not time-barred, and in any event, that his
contentions did not meet the two-prong test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Court adopted in State v.
Fritz, 105 N.J. 42, 58 (1987).
Rule 3:22-4(b)(1) requires that a second or subsequent PCR petition be
dismissed unless it is timely filed in accordance with Rule 3:22-12(a)(2). A
second or subsequent PCR petition that alleges ineffective assistance of counsel
"that represented the defendant on the first or subsequent application for" PCR,
must be filed no more than one year after "the date of the denial of the first or
subsequent application for [PCR]." R. 3:22-12(a)(2)(C).
The one-year time limitation "is absolutely prohibited" by court rule from
being enlarged for second or subsequent PCR petitions. State v. Jackson,
454 N.J. Super. 284, 292-93 (App. Div. 2018) (quoting Aujero v. Cirelli,
110 N.J. 566, 577 (1988)) (explaining the Court's recent rule amendments made
evident "that 'no second or subsequent petition shall be filed more than one year
after' the date one of the three claims accrued" (quoting R. 3:22-12(a)(2))); see
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R. 3:22-12(b) ("These time limitations shall not be relaxed, except as provided
herein."). And appellate review of a defendant's conviction or previous PCR
petition does not toll the time limitation of Rule 3:22-12. State v. Dillard,
208 N.J. Super. 722, 727 (App. Div. 1986) (finding the Court's omission of any
provision in Rule 3:22-12 to toll the time limit while direct appellate relief is
available to be intentional).
Here, defendant is alleging ineffective assistance by his PCR counsel on
his previous PCR petition. Defendant had one year from the denial of the August
5, 2014 petition—August 5, 2015—to bring a timely PCR petition. See R. 3:22-
12(a)(2)(c). Defendant filed this PCR petition first in August 2018 and re-
submitted it in January 2019, more than three years after the previous PCR's
denial. For that reason, his petition is time-barred.
We are convinced that defendant's ineffective-assistance-of-counsel
claims are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2).
Affirmed.
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