August 17, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARK HICKS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-09-1516.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2012
Before Judges Fuentes and J. N. Harris.
Defendant Mark Hicks appeals from the denial of his post- conviction relief (PCR) petition. We affirm. This is the second time defendant has sought appellate review of this petition. In the first appeal, we remanded the matter for a new hearing because "defendant's PCR trial counsel's performance failed to meet the standards imposed by Rule 3:22-6(d) because there [was] no evidence that defendant received the presumed benefits of having his case independently reviewed by a trained legal professional." State v. Hicks, 411 N.J. Super. 370, 377 (2010).
On remand, defendant was assigned new PCR counsel who argued defendant received ineffective assistance of counsel at the time he pled guilty to one count of first degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser included offense of murder, N.J.S.A. 2C:11-3(a)(2), for causing the death of a two-year-old boy.*fn1 Judge Kevin G. Callahan considered the issues raised by defendant anew and denied PCR, finding defendant agreed to plead guilty voluntarily and with full knowledge of the penal consequences of his decision. Judge Callahan also found no basis to question defendant's trial counsel's performance. Judge Callahan explained his ruling in a memorandum of opinion dated July 15, 2010.
Defendant now appeals raising the following arguments.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST PLEADING GUILTY TO A CRIME HE DID NOT COMMIT WAS VIOLATED.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT ESTABLISHED THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND TEST.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF
(A) TRIAL COUNSEL'S FAILURE TO CHALLENGE THE STATE'S DECISION TO SEEK A FIRST DEGREE MURDER INDICTMENT WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
(B) TRIAL COUNSEL'S FAILURE TO EXPLAIN THE CONSEQUENCES OF THE DEFENDANT'S PLEA INCLUDING THE NERA PERIOD OF PAROLE INELIGIBILITY WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
(C) TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PREPARE THE DEFENDANT FOR PLEA ALLOCUTION.
We reject these arguments and affirm substantially for the reasons expressed by Judge Callahan in his comprehensive, well- written memorandum of opinion dated July 15, 2010.