State of New Jersey v. Arbin Hooks

• Court: New Jersey Superior Court Appellate Division
• Decided: April 29, 2025
• Docket: A-2385-23
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2385-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARBIN HOOKS,

Defendant-Appellant. ________________________

Submitted April 9, 2025 – Decided April 29, 2025

Before Judges Mayer and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 91-11-4741, 91-11-4742, 91-11-4743, 91-11-4744, 91-11-4745, 91- 11-4746, 91-11-4747 and 91-11-4748.

Arbin Hooks, appellant pro se.

Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Arbin Hooks appeals from a February 16, 2024 order denying

his motion for a new trial without appointing counsel. We affirm.

In 1993, a jury convicted defendant of kidnapping, robbery, sexual assault

offenses, certain persons offenses, and weapons offenses involving several

victims. Defendant received an aggregate prison term of life plus thirty years

with a forty-year period of parole ineligibility. The sentences related to the

certain persons convictions were imposed concurrently.

Defendant appealed his convictions and sentence. We reversed

defendant's convictions for the certain persons offenses, remanded those

offenses for a new trial, but affirmed the remaining convictions. See State v.

Hooks, 350 N.J. Super. 59 (App. Div. 2002). 1

In September 2022, defendant filed a pro se motion for DNA testing of

the evidence leading to his convictions. The motion judge assigned an attorney

from the Office of the Public Defender (OPD) to represent defendant because

the application requested post-conviction relief (PCR). In a July 3, 2023 order,

the judge denied the motion. Defendant did not appeal.

1 The remand trial was rendered moot based on the trial court's October 2022 dismissal of the indictments charging defendant with certain persons offenses. A-2385-23 2 In November 2023, defendant filed a motion for a new trial or dismissal

of the indictment for failure to preserve DNA evidence pursuant to Rules 3:20-

1 and 3:20-2. Because he claimed the motion was his "first application for any

type of [PCR]," defendant requested the assignment of counsel. The State

opposed the motion. The judge declined to assign counsel because it was

defendant's second PCR application. In a February 16, 2024 order and written

decision, the judge denied defendant's motion. Defendant appealed.

In a June 10, 2024 order, we granted defendant's motion to proceed as

indigent and to file the notice of appeal as within time. However, we denied

defendant's motion for the assignment of counsel.

On appeal, defendant raises the following argument:

THE PCR JUDGE ERRED IN SUMMARILY DENYING DEFENDANT'S FIRST PCR MOTION FOR [PCR] WITHOUT APPOINTMENT OF COUNSEL.

Defendant argues the judge erred in denying his motion for a new trial

without appointing counsel. Defendant claims this application was his first PCR

petition and he was entitled to the assignment of counsel under Rule 3:22-6(a).

We disagree.

Rule 3:22-6(a) states:

A-2385-23 3 [I]f the [PCR] petition is the first one filed by the defendant attacking the conviction pursuant to this rule, the court shall as of course, unless defendant affirmatively states an intention to proceed pro se, by order assign the matter to the [OPD] if the defendant's conviction was for an indictable offense.

Assignment of counsel is required only on a first petition for PCR relief.

See State v. Rue, 175 N.J. 1, 13 (2002). Our courts recognize applications for

DNA testing after a conviction are "[PCR] remedies . . . designed to provide one

last avenue of review to assure that no mistake was made." State v. Velez, 329

N.J. Super. 128, 137 (App. Div. 2000).

In this case, the OPD was assigned to represent defendant regarding his

September 2022 PCR application. In light of that application, defendant fails to

explain why he contends the November 2023 PCR application was his first

petition for [PCR].

The judge who denied defendant's motion for a new trial was the same

judge who appointed the OPD to represent defendant regarding his September

2022 PCR application. Because the judge assigned an attorney to represent

defendant in the September 2022 PCR application, she found the November

2023 new trial motion was defendant's second PCR application.

A-2385-23 4 A defendant may be appointed counsel for a second or subsequent PCR

petition under discrete circumstances. Rule 3:22-6(b), allowing the appointment

of counsel for a second or subsequent PCR petition, provides:

Upon any second or subsequent petition filed pursuant to this Rule attacking the same conviction, the matter shall be assigned to the [OPD] only upon application therefor and showing of good cause. For purposes of this section, good cause exists only when the court finds that a substantial issue of fact or law requires assignment of counsel and when a second or subsequent petition alleges on its face a basis to preclude dismissal under R[ule] 3:22-4.

Defendant failed to proffer good cause for the assignment of counsel

regarding his November 2023 PCR application. Therefore, he did not satisfy

the requirements of Rule 3:22-6(b).

Even if we agreed that defendant's November 2023 PCR application was

his first PCR petition, which we do not, defendant concedes his application was

untimely. The November 2023 PCR application was filed nearly twenty years

after we affirmed defendant's convictions on direct appeal. See R. 3:22-12(a)(1)

(holding a PCR petition time-barred if not filed within five years of the judgment

of conviction being challenged). Therefore, the November 2023 PCR

application is time-barred and defendant failed to proffer any exceptions to the

time bar under Rule 3:22-12(a)(1).

A-2385-23 5 Additionally, defendant's November 2023 PCR application is

procedurally barred under Rule 3:22-5 because it raised the identical legal issue

rejected in a July 3, 2023 order denying defendant's request for DNA testing and

a new trial. A PCR petition is precluded where the same issue was raised and

resolved in a prior application. See R. 3:22-5 ("A prior adjudication upon the

merits of any ground for relief is conclusive whether made in the proceedings

resulting in the conviction or in any post-conviction proceeding brought

pursuant to this rule."); see also State v. Afanador, 151 N.J. 41, 51 (1997) ("PCR

will be precluded 'only if the issue is identical or substantially equivalent' to the

issue already adjudicated on the merits." (quoting State v. McQuaid, 147 N.J.

464, 484 (1997))).

For these reasons, we are satisfied the judge properly denied defendant's

November 2023 PCR application without the assignment of counsel.

Affirmed.

A-2385-23 6