STATE OF NEW JERSEY VS. DARREN HALE (05-02-0450, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1161-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARREN HALE,
Defendant-Appellant.
____________________________
Submitted October 2, 2018 – Decided October 18, 2018
Before Judges Gilson and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 05-02-0450.
Jacobs & Barbone, PA, attorney for appellant (Louis M.
Barbone and Daniel J. Solt, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Kevin J. Hein, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from an October 7, 2016 order denying his petition for
post-conviction relief (PCR) after an evidentiary hearing. We affirm.
Defendant was arrested after the police responded to a report of an armed
robbery at a liquor store. The police apprehended defendant and another
individual after they fled the scene. The other individual implicated defendant
in the liquor store robbery and two other robberies.
Defendant was indicted and charged with three counts of first-degree
robbery, N.J.S.A. 2C:15-1; three counts of third-degree possession of a weapon
for unlawful purposes, N.J.S.A. 2C:39-4; three counts of third-degree unlawful
possession of a weapon, N.J.S.A 2C:39-5; three counts of third-degree
conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a); and
one count of second-degree certain persons not to have weapons, N.J.S.A.
2C:39-7.
Pursuant to a negotiated plea agreement, defendant pled guilty to two
counts of first-degree robbery. In exchange for his guilty plea, the State
recommended an aggregate eighteen-year term in prison subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2, to run concurrently with a separate sentence
he was serving for an unrelated conviction. At the sentencing, the court
considered the aggravating and mitigating factors and sentenced defendant in
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accordance with the plea agreement and dismissed all remaining counts in the
indictment.
Defendant did not appeal his conviction or sentence. Instead, nearly five
years later he filed a PCR petition in which he maintained that his trial counsel
was ineffective in failing to secure a reduced sentence for his cooperation in two
unrelated homicides. The first PCR judge considered certifications of the
parties, including defendant's trial counsel, and denied defendant's petition
without an evidentiary hearing.
Defendant appealed and prior to oral argument the State produced
correspondence between defendant's trial counsel and the prosecutor that raised
a question as to the accuracy of the representations trial counsel made in his
certification to the PCR court. Accordingly, we reversed and remanded and
commented that in light of the State's disclosures, the "PCR court [might want]
to . . . reconsider[] its original decision to deny defendant's petition without an
evidentiary hearing." State v. Darren Hale, No. A-3154-12T1 (App. Div.
December 3, 2014) (slip op. at 11). We "[did] not, however, direct the outcome
either way and le[ft] it to the court's discretion." Ibid.
On remand, defendant renewed the arguments he made before the first
PCR judge. A second PCR judge ordered an evidentiary hearing, which was
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conducted by Judge Edward J. McBride. At the hearing, Judge McBride
considered documentary evidence, supplemental briefing and took testimony
from the prosecutor and investigator assigned to defendant's case, defendant's
trial counsel and the investigator and prosecutor assigned to the homicide trial.
The court found all of the witnesses credible.
Judge McBride rendered a written opinion and concluded that defendant
satisfied the first prong of the two-part test for ineffective assistance of counsel
detailed in Strickland v. Washington, 466 U.S. 688 (1984) and adopted by the
New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987), but failed to
satisfy the second prong which required defendant to establish that trial
counsel's deficient performance prejudiced him.
With respect to prong one, the court determined that trial counsel's
"omissions . . . relating to the potential impact of . . . [d]efendant's cooperation
in the prosecution of two murder cases were so deficient that they fell below the
wide range of professionally competent assistance to which a defendant is
constitutionally entitled." Judge McBride noted that trial counsel assisted in
arranging for defendant to provide a taped statement, but did nothing beyond
that rendering him unable to adequately advocate for defendant to receive a
lesser sentence.
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As to prong two, Judge McBride determined that defendant failed to prove
that his trial counsel's ineffective assistance deprived him of a promised reduced
sentence as there was "no evidence that such a promise was ever made." Further,
the judge noted it was clear from the record that the prosecutor would not have
given defendant consideration for any cooperation because he did not testify in
the homicide case, as it resolved by plea agreement.
In addition, the judge explained that defendant received a favorable
sentence as a result of his plea. Judge McBride noted that despite his long
criminal history, including prior robbery convictions, defendant's sentence was
"below the top of the first-degree range." Further, defendant's two robbery
convictions ran concurrent to each other and to the sentence he was already
serving. Finally, Judge McBride concluded that defendant was merely
speculating that the sentencing court would have agreed to a lesser sentence had
trial counsel informed the court of his cooperation and he failed to provide an
assessment of what the lesser sentence would have been.
On appeal, defendant raises the following points:
POINT I
THE POST-CONVICTION RELIEF COURT'S
LEGAL CONCLUSION THAT DEFENDANT
FAILED TO SATISFY THE PREJUDICIAL EFFECT
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PRONG OF THE STRICKLAND/FRITZ TEST IS
SUBJECT TO DE NOVO REVIEW.
POINT II
THE PCR COURT ERRED IN CONCLUDING
DEFENDANT FAILED TO SATISFY THE
PREJUDICE PRONG OF THE STRICKLAND/FRITZ
TEST.
POINT III
THE POST-CONVICTION RELIEF COURT'S
CREDIBILITY AND FACTUAL FINDING ARE NOT
ENTITLED DEFERENCE BECAUSE THEY ARE
NOT SUPPORTED BY SUFFICIENT CREDIBLE
EVIDENCE
We agree with defendant's first point, but find no merit to the contentions
raised in his second and third points and therefore affirm substantially for the
reasons stated by Judge McBride in his thirteen-page written decision of October
7, 2016. R. 2:11-3(e)(2). We agree with Judge McBride that the deficiencies of
trial counsel failed to meet the prejudice prong of the Strickland test.
Affirmed.
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