STATE OF NEW JERSEY v. HARRISON HOGUE (2010)

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 AND NEW JERSEY CONSTITUTIONAL RIGHTS WERE VIOLATED.

A. THE PCR COURT ERRED BY DENYING APPELLANT'S PCR PETITION.

B. IN THE ALTERNATIVE, THE PCR COURT ERRED BY RULING ON APPELLANT'S PCR PETITION WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING.

1. APPELLANT ESTABLISHED A PRIMA FACIE CASE IN SUPPORT OF POST-CONVICTION RELIEF.

2. AT A MINIMUM, AN EVIDENTIARY (SIC) HEARING WAS NECESSARY TO RESOLVE APPELLANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

Defendant also raises the following argument in his pro se supplemental brief:

DEFENDANT WAS DEPRIVED OF HIS FOURTEENTH AMENDMENT CONSTITUTIONAL DUE PROCESS RIGHT TO A FAIR TRIAL BY EGREGIOUS PROSECUTORIAL MISCONDUCT WHERE THE PROSECUTOR SUBMITTED OVERWHELMINGLY PREJUDICIAL EXHIBITS INTO THE JURY ROOM DURING DELIBERATIONS WHICH CONSISTED OF NEWS PAPERS (SIC) ARTICLES CONTAINING ADVERSE INFORMATION;  AN ARMY HELMET;  AND PHOTOS, THEREFORE, THE CONVICTION SHOULD BE REVERSED.

We affirm substantially for the reasons expressed by Judge Fullilove in his written opinion supporting his January 29, 2008 order denying defendant's PCR petition.   We add only the following brief comments.

Defendant's criticism of defense counsel's decision not to file a motion for a new trial based on the results of the DNA test is unfounded because such evidence did not have any exculpatory value.   Additionally, the question of defendant's waiver of trial counsel's possible conflict of interest was addressed by the trial judge and was not raised as an issue on direct appeal;  defendant is therefore barred from raising that issue here.   R. 3:22-4.

Finally, the State argues that defendant's PCR petition was time-barred under Rule 3:22-12 because it was filed more than five years after the entry of the judgment of conviction and defendant did not present sufficient evidence to justify relaxing the Rule 's time restrictions.  State v. Afanador, 151 N.J. 41, 52 (1997).   Citing State v. Culley, 250 N.J.Super.   558 (App.Div.), certif. denied, 126 N.J. 387 (1991), defendant argues, inter alia, that the State should be precluded from raising this issue on appeal because it failed to do so before the PCR judge.   We decline to address this argument because the trial court properly decided defendant's petition on the merits.

Affirmed.

PER CURIAM