State of New Jersey v. Da'ron D. Howard ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0349-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DA'RON D. HOWARD, a/k/a
DERRON HUGGINS,
Defendant-Appellant.
__________________________
Submitted March 19, 2024 – Decided April 19, 2024
Before Judges Mayer and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 14-05-0378.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
William A. Daniel, Union County Prosecutor, attorney
for respondent (Meredith L. Balo, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Da'Ron Howard appeals from an order of August 11, 2021
denying his petition for post-conviction relief (PCR). However, the contentions
in his appellate brief focus on PCR counsel's conduct rather than the trial court's
order and decision. Since the record on appeal is insufficient to enable this court
to review these contentions, we are constrained to dismiss the appeal.
On appeal, defendant contends:
THIS CASE MUST BE REMANDED FOR NEW PCR
COUNSEL AND A NEW PCR HEARING BECAUSE
PCR COUNSEL FAILED TO REPRESENT
[DEFENDANT], RENDERING HIS FIRST PCR
PETITION MEANINGLESS.
Specifically, defendant contends his PCR counsel was ineffective because
PCR counsel: (1) failed to discuss the issues to be raised in the PCR; (2) failed
to "fashion the most effective arguments possible"; and (3) failed to explain
sentencing counsel's omission of applicable mitigating factors at the sentencing
hearing.
A defendant asserting a claim of ineffective assistance of counsel must
satisfy the two-prong Strickland test: (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 v. Washington, 466 U.S. 668, 687 (1984).
A-0349-22
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"[PCR] is New Jersey's analogue to the federal writ of habeas corpus."
State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Preciose, 129 N.J.
451, 459 (1992)). "[PCR] provide[s] a built-in 'safeguard that ensures that a
defendant [is] not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013)
(quoting State v. McQuaid, 147 N.J. 464, 482 (1997)).
"[T]he right to the effective assistance of counsel extends to PCR
counsel." State v. Vanness, 474 N.J. Super. 609, 626 (App. Div. 2023) (citing
State v. Rue, 175 N.J. 1, 18-19 (2002)). Rule 3:22-6(d) requires PCR counsel
to "advance all of the legitimate arguments requested by the defendant that the
record will support," and "[i]f [the] defendant insists upon the assertion of any
grounds for relief that counsel deems to be without merit," then PCR counsel
must "list such claims in the petition . . . or incorporate them by reference." The
rule requires PCR counsel to "communicate with his [or her] client," "investigate
the claims," and "then . . . 'fashion the most effective arguments possible.'" Rue,
175 N.J. at 18 (quoting State v. Velez, 325 N.J. Super. 128, 133 (App. Div.
2000)). "The remedy for counsel's failure to meet the requirements imposed by
Rule 3:22-6(d) is a new PCR proceeding." Vanness, 474 N.J. Super. at 626-27
(citing State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010)).
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A defendant's claim of ineffective assistance of PCR counsel is "better
suited for a PCR petition," as opposed to a direct appeal, when there are
"extensive proofs outside the record." State v. Armour, 446 N.J. Super. 295,
317 (App. Div. 2016) (citing R. 3:22-12(a)(2) and R. 3:22-4(b)). See also
Vanness, 474 N.J. Super. at 627 (Observing "[a] defendant’s ineffective
assistance of counsel claims against PCR counsel ordinarily should be raised in
a second or subsequent PCR petition" but nevertheless considered "defendant's
contentions on the merits" because "the record [wa]s sufficiently developed.").
Here, defendant requests "the matter be remanded so that [he] can raise
his first PCR petition anew with new counsel who will communicate with him,
raise viable issues and effectively advocate for his client."
We recognize defendant raised concerns regarding his PCR counsel at the
PCR evidentiary hearing. We also recognize that PCR counsel provided rebuttal
to defendant's ineffective assistance claims. Nonetheless, on this scant record,
we are unable to determine the merits of defendant's contentions against his
PCR. Thus, we are constrained to dismiss the appeal. We take no position
regarding the filing of a subsequent PCR against defendant's PCR attorney.
Dismissed. We do not retain jurisdiction.
A-0349-22
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