State of New Jersey v. Da'ron D. Howard

• Court: New Jersey Superior Court Appellate Division
• Decided: April 19, 2024
• Docket: A-0349-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0349-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DA'RON D. HOWARD, a/k/a DERRON HUGGINS,

Defendant-Appellant. __________________________

Submitted March 19, 2024 – Decided April 19, 2024

Before Judges Mayer and Paganelli.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 14-05-0378.

Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief).

William A. Daniel, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Da'Ron Howard appeals from an order of August 11, 2021

denying his petition for post-conviction relief (PCR). However, the contentions

in his appellate brief focus on PCR counsel's conduct rather than the trial court's

order and decision. Since the record on appeal is insufficient to enable this court

to review these contentions, we are constrained to dismiss the appeal.

On appeal, defendant contends:

THIS CASE MUST BE REMANDED FOR NEW PCR COUNSEL AND A NEW PCR HEARING BECAUSE PCR COUNSEL FAILED TO REPRESENT [DEFENDANT], RENDERING HIS FIRST PCR PETITION MEANINGLESS.

Specifically, defendant contends his PCR counsel was ineffective because

PCR counsel: (1) failed to discuss the issues to be raised in the PCR; (2) failed

to "fashion the most effective arguments possible"; and (3) failed to explain

sentencing counsel's omission of applicable mitigating factors at the sentencing

hearing.

A defendant asserting a claim of ineffective assistance of counsel must

satisfy the two-prong Strickland test: (1) "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment," and (2) "the deficient performance prejudiced the defense."

Strickland v. Washington, 466 U.S. 668, 687 (1984).

A-0349-22 2 "[PCR] is New Jersey's analogue to the federal writ of habeas corpus."

State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Preciose, 129 N.J.

451, 459 (1992)). "[PCR] provide[s] a built-in 'safeguard that ensures that a

defendant [is] not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013)

(quoting State v. McQuaid, 147 N.J. 464, 482 (1997)).

"[T]he right to the effective assistance of counsel extends to PCR

counsel." State v. Vanness, 474 N.J. Super. 609, 626 (App. Div. 2023) (citing

State v. Rue, 175 N.J. 1, 18-19 (2002)). Rule 3:22-6(d) requires PCR counsel

to "advance all of the legitimate arguments requested by the defendant that the

record will support," and "[i]f [the] defendant insists upon the assertion of any

grounds for relief that counsel deems to be without merit," then PCR counsel

must "list such claims in the petition . . . or incorporate them by reference." The

rule requires PCR counsel to "communicate with his [or her] client," "investigate

the claims," and "then . . . 'fashion the most effective arguments possible.'" Rue,

175 N.J. at 18 (quoting State v. Velez, 325 N.J. Super. 128, 133 (App. Div.

2000)). "The remedy for counsel's failure to meet the requirements imposed by

Rule 3:22-6(d) is a new PCR proceeding." Vanness, 474 N.J. Super. at 626-27

(citing State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010)).

A-0349-22 3 A defendant's claim of ineffective assistance of PCR counsel is "better

suited for a PCR petition," as opposed to a direct appeal, when there are

"extensive proofs outside the record." State v. Armour, 446 N.J. Super. 295,

317 (App. Div. 2016) (citing R. 3:22-12(a)(2) and R. 3:22-4(b)). See also

Vanness, 474 N.J. Super. at 627 (Observing "[a] defendant’s ineffective

assistance of counsel claims against PCR counsel ordinarily should be raised in

a second or subsequent PCR petition" but nevertheless considered "defendant's

contentions on the merits" because "the record [wa]s sufficiently developed.").

Here, defendant requests "the matter be remanded so that [he] can raise

his first PCR petition anew with new counsel who will communicate with him,

raise viable issues and effectively advocate for his client."

We recognize defendant raised concerns regarding his PCR counsel at the

PCR evidentiary hearing. We also recognize that PCR counsel provided rebuttal

to defendant's ineffective assistance claims. Nonetheless, on this scant record,

we are unable to determine the merits of defendant's contentions against his

PCR. Thus, we are constrained to dismiss the appeal. We take no position

regarding the filing of a subsequent PCR against defendant's PCR attorney.

Dismissed. We do not retain jurisdiction.

A-0349-22 4