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State v. Hogue

August 4, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HARRISON HOGUE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-10-3251.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 4, 2010

Before Judges Skillman and Fuentes.

Defendant Harrison Hogue appeals from the order of the trial court denying his post conviction relief (PCR) petition. We affirm.

An Essex County Grand Jury charged defendant with purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2), third degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d). On June 13, 2000, a jury found defendant guilty as charged. On September 29, 2000, the court sentenced defendant to a term of thirty years incarceration, with a mandatory thirty-year period of parole ineligibility on the murder conviction. After merging the fourth degree unlawful possession charge with the third degree unlawful purpose offense, the court further sentenced defendant to a term of five years to run consecutive to the sentence for murder. The court also imposed the mandatory fines and penalties.

While the direct appeal of this conviction and sentence was pending, defendant moved before this court, seeking a partial remand to the trial court for the purpose of performing certain DNA testing that could potentially provide exculpatory evidence. We denied defendant's motion. The Supreme Court granted defendant's motion seeking interlocutory review of our order denying remand, State v. Hogue, 172 N.J. 351 (2002), and ultimately reversed our order and remanded the matter to the trial court for the limited purpose of permitting defendant to request the DNA testing. State v. Hogue, 175 N.J. 578, 580 (2003).

A DNA test report, dated May 17, 2004, indicated that defendant was not the source of the DNA material found on the victim's body or at the crime scene. By letter dated June 7, 2004, defendant's appellate counsel requested that the Clerk of the Appellate Division place the pending appeal back on the active calendar because the results of the DNA test "[did] not warrant a new trial motion on [behalf] of the defense."

In a per curiam opinion dated November 19, 2004, we affirmed defendant's conviction and remanded the matter for the trial court to amend the Judgment of Conviction to reflect that defendant's conviction for third degree possession of a knife for an unlawful purpose was merged with the murder conviction. State v. Hogue, No. A-1952-00 (App. Div. Nov. 19, 2004) (slip op. at 19-20). The Supreme Court thereafter denied defendant's petition for certification. State v. Hogue, 182 N.J. 628 (2005).

In September 2005, defendant filed this PCR petition pro se, alleging ineffective assistance of trial and appellate counsel, misconduct by the trial prosecutor, and misapplication of the law and erroneous evidential rulings by the trial judge. Judge Fullilove denied the petition without a plenary hearing.

In a written opinion in support of his ruling, Judge Fullilove explained that defendant's arguments based on alleged legal errors committed by the trial judge and alleged misconduct of the prosecutor were barred under Rule 3:22-4 because they could have been raised on direct appeal.

Judge Fullilove rejected defendant's ineffective assistance of counsel claims because they failed to meet the two-prong test established by the United State Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under this test, a defendant must first demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.

In lieu of reciting the facts that led to defendant's conviction, we incorporate by reference the facts as described in our unpublished opinion affirming defendant's conviction. Hogue, supra, slip op. at 3-12. Defendant now appeals, raising the following arguments through his assigned counsel:

THE DENIAL OF APPELLANT'S PETITION FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE THE TRIAL RECORD AND EVIDENCE DISCOVERED FOLLOWING APPELLANT'S CONVICTION DEMONSTRATE THAT APPELLANT'S FEDERAL ...


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