April 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARIN HICKSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 92-12-02182.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 16, 2009
Before Judges Carchman and Sabatino.
Defendant, Darin Hickson, appeals from an order of the Law Division dated July 30, 2007, denying what he styled as a motion to correct an allegedly-illegal sentence but which, in essence, amounted to defendant's fourth application for post-conviction relief ("PCR"). We affirm.
Following a jury trial in 1994, defendant was convicted of felony murder, N.J.S.A. 2C:11-3(a)(3); aggravated manslaughter, N.J.S.A. 2C:11-4(a) (as a lesser-included offense of murder); first-degree robbery, N.J.S.A. 2C:15-1; and possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). After various mergers, defendant was sentenced to life imprisonment, with thirty years of parole ineligibility.
The offenses arose out of the robbery of a jewelry store and the fatal stabbing of the store owner. Defendant's fingerprints were found on a showcase in the store and he was positively identified by two witnesses who saw him after the stabbing with blood on his arms. Additionally, defendant's voice was identified on a tape-recorded telephone call made to the store by a security company while the robbery was underway.
We upheld defendant's conviction and sentence on direct appeal, State v. Hickson, A-6126-93T4 (July 8, 1996), and the Supreme Court denied certification, 146 N.J. 570 (1996). We subsequently affirmed the dismissal, after a hearing by the trial court, of defendant's first PCR petition. State v. Hickson, A-3901-99T4 (April 19, 2001), and certification was likewise denied, 169 N.J. 610 (2001).
Thereafter, we affirmed the denial of defendant's second PCR application, State v. Hickson, A-5329-01T3 (Oct. 31, 2003).
Certification was once again denied, 179 N.J. 373 (2004). Defendant filed a third PCR petition, which the trial court again denied. We summarily dismissed his appeal of that ruling in a motion order, characterizing his arguments on appeal as "clearly without merit." State v. Hickson, A-1741-04T3 (Jan. 26, 2006). Again, the Supreme Court denied certification. 186 N.J. 607 (2006). The United States District Court thereafter denied him relief, dismissing his petition for habeas corpus. Hickson v. Sherrer, 2008 U.S. Dist. LEXIS 2564 (D.N.J., Jan. 13, 2008).
In his present application, defendant contends, in essence, that his sentence is illegal because his acquittal by the jury on the murder charge allegedly signifies that he cannot be found guilty of felony murder. Judge Patrick Roma rejected that contention and defendant's other arguments in a seven-page letter opinion dated July 30, 2007. Among other things, Judge Roma found that defendant's motion was inexcusably out of time, well beyond the five years prescribed by Rule 3:22-12. The judge also rejected defendant's substantive claims, correctly noting that felony murder is a strict liability offense that holds a defendant accountable for a death that takes place during a crime such as a robbery, so long as the death was caused either by a defendant or another participant in the crime. N.J.S.A. 2C:11-3(a)(3); see also State v. Martin, 119 N.J. 2, 27 (1990). The judge rightly found no contradiction between the jury's findings of defendant's guilt of felony murder, aggravated manslaughter, and robbery and defendant's acquittal of murder.
On his present appeal, defendant raises the following points:
THE LAW DIVISION ERRED IN TIME AND PROCEDURALLY BARRING DEFENDANT'S ILLEGAL SENTENCE MOTION. ENFORCEMENT OF THE BAR RESULTS IN FUNDAMENTAL INJUSTICE AND DENIAL OF RELIEF ARE CONTRARY TO THE CONSTITUTION OF THE UNITED STATES AND STATE OF NEW JERSEY. R. 3:22-4(b) AND (c); R. 3:22-12
THE APPELLANT'S SENTENCE IS ILLEGAL AND IN VIOLATION OF HIS FIFTH, SIXTH, EIGHT[H], AND FOURTEENTH AMENDMENT RIGHTS OF BOTH STATE AND FEDERAL CONSTITUTIONS
THE CONSTITUTIONALITY OF THE DEFENDANT'S ILLEGAL SENTENCE WARRANTS RELIEF IN THE INTEREST OF JUSTICE AND ENFORCEMENT OF TIME AND PROCEDURAL BARS RESULT IN FUNDAMENTAL INJUSTICE AND IS CONTRARY TO THE CONSTITUTION OF THE UNITED STATES AND STATE OF NEW JERSEY
A. THE MENTAL REQUIREMENT FOR THE PREDICATE FELONY (ROBBERY) AND FELONY MURDER, "PURPOSE" WAS REJECTED BY THE JURY AND IT WAS THE COURT'S DUTY AT SENTENCING TO VACATE BOTH CONVICTIONS AND IMPOSE A SENTENCE IN ACCORDANCE TO AGGRAVATED MANSLAUGHTER. FAILING TO DO SO RESULTED IN AN ILLEGAL SENTENCE AND CONSTITUTIONAL VIOLATIONS UNDER THE FIFTH, SIXTH, EIGHT[H], AND FOURTEENTH AMENDMENTS OF BOTH STATE AND FEDERAL CONSTITUTIONS
B. SENTENCING THE DEFENDANT AS A RESULT OF THE FELONY MURDER CONVICTION RESULTS IN VIOLATIONS OF THE DOUBLE JEOPARDY CLAUSE UNDER THE FIFTH AMENDMENT OF THE CONSTITUTION, AS WELL RESULTED IN DENIAL OF DUE PROCESS OF LAW UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE CONST[I]TUTIONS
Having considered these points, we affirm the order appealed from, substantially for the reasons set forth in Judge Roma's letter opinion. We agree that defendant's arguments are untimely and that they also lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). We need not comment on defendant's argument, belatedly raised for the first time on this appeal, that his indictment was invalid for lack of signature. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).
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